Sylvester v. Sylvester, 88-2431
| Citation | 557 So.2d 599 |
| Decision Date | 31 January 1990 |
| Docket Number | No. 88-2431,88-2431 |
| Parties | 15 Fla. L. Weekly D298 Stephen R. SYLVESTER, Appellant/Cross Appellee, v. Lou Emma SYLVESTER, Appellee/Cross Appellant. |
| Court | Florida District Court of Appeals |
Ronald Sales of Law Offices of Ronald Sales, and Jane Kreusler-Walsh of Klein and Walsh, P.A., West Palm Beach, for appellant/cross appellee.
James P. O'Flarity of Law Offices of James P. O'Flarity, P.A., West Palm Beach, for appellee/cross appellant.
The husband in this dissolution action appeals from an award to the wife of lump sum alimony in the amount of $1,000,000.00 payable within thirty days of the judgment date. The record does not support the necessarily implicit conclusion, however, that the husband has the present ability to pay the award.
The parties agree, in fact, that the only source from which the husband can comply with the judgment is his interest in a 4 1/2 million dollar "irrevocable" trust, pursuant to the spendthrift provisions of which the corpus will not be distributable to him for another five years, and even then only 1/3 of it is distributable. The trial court obviously was cognizant of this because in discussing this potential source of ability the court expressly found "[i]t is clear the [husband] can terminate the trust at any time and it is an investment management tool." In effect, the trial court found that the irrevocable spendthrift trust was not "irrevocable" at all.
But the court did not have the trust before it and could not have absent the joinder of the trustee and the contingent remainder beneficiaries, the husband's minor children, all of whom, in the case of an "irrevocable" trust, are indispensable parties to the making of such determination. See, e.g., Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); Huttig v. Huffman, 151 Fla. 166, 9 So.2d 506 (1942); First National Bank of Hollywood v. Broward National Bank of Fort Lauderdale, 265 So.2d 377 (Fla. 4th DCA 1972).
Accordingly, the cause is reversed for further proceedings not inconsistent herewith. The other points raised in this appeal are thus premature and should abide the outcome of such proceedings.
REVERSED AND REMANDED.
WALDEN, J., and McNULTY, JOSEPH P., Associate Judge, concur.
With that portion of the majority opinion reversing the lump sum alimony award of $1,000,000 payable in thirty days I concur, but for a different reason than that ascribed by the majority.
Appellant, age thirty-six at the time of trial, is the settlor of a trust denominated as irrevocable, the corpus of which is valued at approximately $4.5 million dollars. 1 He is entitled to all of the income therefrom, and to maintenance and support payments from the principal at the discretion of the trustee. One third of the corpus is distributable to appellant at age forty-five, one half of the balance at age fifty, and the balance remaining at age fifty-five. In the event of his death prior to distribution of the corpus, his three minor children are named as beneficiaries. For the past several years the income distributed to appellant from this trust has been in excess of $400,000.
The final judgment of dissolution provided, among other...
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