386 So. 2d 570 | Fla. Dist. Ct. App. | 1980
Rehearing
ON PETITION FOR REHEARING DENIED
In his petition for rehearing appellant again, as he did in his initial argument, focuses his claim on the question of propriety of the trial court’s award of certain property to the wife on the basis of special equity and fails or refuses to concede that the judgment appealed awarded the property as lump sum alimony because of the wife’s special equity.
It is, as the Supreme Court recently pointed out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla., 1980), unfortunate that the courts in this state have used the term
In support of his petition for rehearing, petitioner urges that a review of the final judgment at issue here reflects that prior to the language awarding the property, the trial judge recites facts in support of the vested-property-right meaning of the term “special equity.” Although it is true that in the relevant section of the final judgment the judge does find that one-half of the land at issue was given to the parties by the wife’s parents and one-half was purchased from her brother, the judge also made findings of fact concerning the duration of the marriage; the number of children; the contribution of each party to the marriage relative to homemaking and child care, education and career building, and financial contributions to the family; and the use of the proceeds from mortgages taken on the jointly owned property. All of these factors are proper considerations in making an award of alimony.
Since we find that the award made by the judge was in the nature of lump sum alimony; that it was within his discretion under Section 61.08(2), Florida Statutes; and, furthermore, that our earlier decision is consonant with the cases recently announced by the Florida Supreme Court, we adhere to that decision.
The petition for rehearing is DENIED.
Lead Opinion
In the final judgment of dissolution of marriage the trial court awarded the wife 43 acres and the marital home, which were held as a tenancy by the entireties, and household furnishings as lump sum alimony. We affirm.
Appellant urges that under this Court’s ruling in Cornelius v. Cornelius, 382 So.2d 710 (Fla. 1st DCA 1979), the award could not be alimony unless it was based on one spouse’s needs and the other spouse’s ability to pay. We hereby recede from that portion of the opinion in Cornelius which receded from the earlier ruling in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975). In Cornelius, having noted that alimony was a creature of statute, we asserted:
“Brown represents an eloquent recognition of the homemaker’s contributions to the marital home. It must be rejected, however, as an unacceptable deviation from that which we understand to be the traditional equation by which all alimony is measured. Until the legislature sets aside that equation, we have no choice other than to follow it.” (382 So.2d at 715).
What the Court overlooked and what the parties failed to call to the Court’s attention in briefs, oral argument, and the petition for rehearing was that the legislature had acted and had changed that equation in Chapter 78-339,1978 Fla. Laws, codified at 61.08(2), Florida Statutes (1978). That statute provides as follows:
“(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of both parties.
(d) The financial resources of each party.
(e) Where applicable, the time necessary for either party to acquire sufficient education or training to enable him or her to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education and career building of the other party.
The court may consider any other factor necessary to do equity and justice between the parties.”
By the time the Court took note of Chapter 78-339, it had lost jurisdiction of Cornelius to the Supreme Court. We welcome the opportunity to revisit the issue and to correct our earlier oversight.
In view of § 61.08(2), we find that the trial court did not abuse its discretion in the award of the acreage, the home, and the household furnishings. The other issues raised by appellant are without merit.
AFFIRMED.