Stith v. Stith

• Decision Date: 11 June 1980
• Docket Number: No. 78-1906,78-1906
• Citation: Stith v. Stith, 384 So.2d 317 (Fla. App. 1980)
• Parties: Robert M. STITH, Appellant, v. Elizabeth N. STITH, Appellee.
• Court: Florida District Court of Appeals

Page 317

384 So.2d 317

Robert M. STITH, Appellant, v.Elizabeth N. STITH, Appellee.

No. 78-1906.

District Court of Appeal of Florida, Second District.

June 11, 1980.

Ronald A. Cyril of Nelson, Hesse, Cyril, Weber, Smith & Widman, Sarasota, for appellant.

John M. Strickland of Livingston, Patterson & Strickland, P. A., Sarasota, for appellee.

DANAHY, Judge.

In this dissolution of marriage proceeding the trial judge awarded the wife the sum of $240,000.00 in lump sum alimony payable in installments of $1,000.00 per month for a period of twenty years.Further, he directed the husband to secure that award by naming the wife as the irrevocable beneficiary of the husband's revocable trust and maintaining all life insurance policies on his life payable to that trust as well as a separate $25,000.00 policy payable to the wife.The trial judge also reserved jurisdiction to review these provisions of the final judgment and to award periodic alimony if the circumstances require.We reverse with directions that the award be modified in accordance with this opinion.

The husband enjoys an after-tax income of approximately $50,000.00 per year and does not quarrel with the requirement that he pay the wife the sum of $1,000.00 per month under present circumstances; however, he contends that the monthly payment obligation should be simple periodic alimony rather than installments of a lump sum award.He points out that the award burdens him and his estate with a substantial obligation which is neither terminable upon the wife's remarriage or death nor subject to modification should the circumstances of either party change.He suggests, for example, that the wife might die or remarry with $200,000.00 of the lump sum award remaining to be paid, eliminating her need for support but requiring the husband to continue making monthly payments of $1,000.00 per month for almost seventeen more years or, in the event of his death, requiring his estate to pay so much of the obligation as would then remain.

The husband further hypothesizes a situation in which he becomes incapacitated or suffers some other severe change of circumstances making it impossible for him to pay the monthly installments, but not enabling him to obtain relief from the continuing obligation.As the husband points out, a lump sum award gives rise to a vested right which is not subject to modification.Our supreme court recently affirmed that rule in Canakaris v. Canakaris, 382 So.2d 1197(Fla.1980).

In the final judgment, the trial judge stated in detail the circumstances which persuaded him to make the lump sum alimony award in this case.Those circumstances certainly justify the wife's description of herself as a typical displaced homemaker.The parties were married for twenty-three years; the wife is now forty-six years old.Although she holds a college degree and a teacher's certificate, she has not worked since the birth of the parties' first child twenty-one years ago.Because of her age and lack of experience, her prospects for employment are not good.The wife points out that she spent the most economically productive years of her life as a mother and homemaker; that in doing so, she relinquished her opportunity for a career; that her prospects for future employment and remarriage are dim; that she has no estate and her prospects for creating one are minimal.The wife has assets worth approximately $50,000.00, including her one-half interest in the marital home.

The husband, on the other hand, finished law school after the marriage and advanced his professional career to a respectable level of success.He is currently employed as executive vice president in charge of the trust department of a bank.His income consists of his base salary plus fringe benefits and additional income from investments.

The husband is the grantor and sole beneficiary of a revocable trust to which a substantial amount of life insurance on his life is payable.The face amount of that insurance is $215,850.00, from which loans in the amount of $28,500.00 are deductible.The husband has other assets (some of which are in the trust) totaling approximately $387,000.00.He claims that he has liabilities of approximately $287,000.00, producing a net worth of approximately $100,000.00.The husband's liabilities include the sum of $120,000.00 owed to himself as trustee of a trust established by his father for the benefit of his sister.

The alimony award fashioned by the trial judge in this case was designed to meet a perceived need of the wife for protection in the event of the husband's death.As the trial judge expressed it, the death of the husband after the entry of the final judgment would be tantamount to financial disaster for the wife.Certainly we cannot quarrel with that conclusion, which undoubtedly applies to a vast number of divorced wives who have no sources of support other than their ex-husbands and who are unable to support themselves.¹The question which confronts us is whether that risk may properly be addressed in the manner chosen by the trial judge in this case.

Where a lump sum alimony award is justified, such an award can provide an ex-wife with sufficient security to minimize her risk that her sole means of support will be lost to her if her ex-husband should die, and an award designed for that purpose is appropriate.Grobard v. Grobard, 382 So.2d 117(Fla. 3d DCA1980).A lump sum award payable in installments is perfectly proper in an appropriate case.West v. West, 260 So.2d 541(Fla. 1st DCA1972).Further, jurisdiction may be retained, as the trial judge did in the instant case, to award periodic alimony if found necessary after the termination of lump sum alimony installment payments.Canakaris v. Canakaris, supra.

Unfortunately, the lump sum award to the wife in this case is not within the parameters set for lump sum alimony by the supreme court in Canakaris v. Canakaris, supra.In that casethe court approved the award of lump sum alimony as a means of insuring an equitable distribution of property acquired during the marriage, as well as a means of providing support.The court emphasized that an award of alimony should be fashioned so as to achieve equity between the parties.²

Applying the principles of Canakaris and the standard of review mandated by the supreme court in that case, we are compelled to conclude that the trial judge in this case abused his discretion in the lump sum award made to the wife.While the wife views with suspicion the husband's liability in the amount of $120,000.00 owed to himself as trustee for his sister, there is nothing in the record to support the conclusion that this is not a bona fide debt.The fact remains that the husband has a net worth of $100,000.00, plus his $40,000.00 share of the equity in the marital home.A lump sum award of $240,000.00 to the wife on the facts in this case...