386 So. 2d 1251 | Fla. Dist. Ct. App. | 1980
Lead Opinion
We review certain rulings of the trial judge incident to the dissolution of the marriage of Al and Sally Weiner. During the course of their marriage, which spanned nearly a quarter-century, the Weiners rose from quite modest means to great wealth. It is with regard to apportionment of their fortune that they join issue.
Permanent periodic alimony of $750 per week was awarded appellant in the proceedings below.
Appellee’s protestation was unavailing in the circuit court, and it fares no better in this forum. The record reveals that appellee is a multimillionaire, and that his disposable income, in six figures annually, only partially represents the indirect income he receives through the ownership and operation of his commercial enterprises.
It was undisputed that the parties’ living expense, in the year prior to their separation, was $2,000 per week, on average, exclusive of certain non-recurring expenses. We note in the record facts militating in appellant’s favor by reference to every criterion in § 61.08(1), (2), Fla.Stat. (Supp.1978). On this record, we must hold that the trial court’s alimony award is inadequate, and constitutes an abuse of discretion. Competent evidence adduced at trial does not support limiting appellant’s award to approximately one-third of the amount she was accustomed to spending during her married life. See McDonald v. McDonald, 368 So.2d 1283 (Fla.1979). We hold that appellant is entitled to $1,200 per week, as of the date of the dissolution decree, October 31, 1978. Massey v. Massey, 213 So.2d 260 (Fla. 3d DCA 1968).
Appellant further challenges the partition of the parties’ undivided interests in a residential lot.
We note initially that a court is without authority, incident to dissolution proceedings, to order ex parte the sale of jointly-owned property; it may partition such interests only where the parties have so agreed, or where one party has sought such disposition through a proper pleading. Sniffin v. Sniffin, 352 So.2d 113 (Fla. 4th DCA 1977); Riggs v. Riggs, 310 So.2d 322 (Fla. 3d DCA 1975). In the case sub judice, the record discloses that no agreement was reached between the parties for the sale of their lot,- and that the sole prayer for partition was contained in appellee’s post-hearing motion to amend pleadings to conform to the evidence.
Finally, we consider the trial court’s award to appellee of certain valuable “artifacts”, taken from the parties’ household furnishings.
A court may properly make a disposition of property, in the process of marital dissolution, only by agreement of the parties, in an award of lump-sum alimony, in recognition of separate ownership or special equity interest, or pursuant to a request for partition. Tinsley v. Bonner, 362 So.2d 975 (Fla. 3d DCA 1978); Garmon v. Garmon, 357 So.2d 487 (Fla. 1st DCA 1978); Niemann v. Niemann, 294 So.2d 415 (Fla. 4th DCA 1974). No such agreement, award, recognition or request forms a part of this record. Therefore, we reverse, leaving the parties as tenants-in-common. § 689.15, Fla.Stat. (1979). '
We reverse the trial court’s alimony award, and raise the award to $1,200 per week; we reverse the partition of the parties’ interests in the residential lot, and the award of the artifacts to appellee, thereby leaving the parties as tenants-in-common of the lot and artifacts. As to all other issues raised by appellant, we affirm.
Affirmed in part, reversed in part.
. The final judgment from which appeal is taken was entered subsequent to the June 18, 1978 effective date of the Legislature’s amendment of the alimony statute, § 61.08, Fla.Stat. (Supp. 1978). By that amendment, we have a non-exclusive list of “relevant economic factors” which must be considered in a proper award or alimony or maintenance. The amendment constitutes a codification of, rather than a departure from, criteria traditionally employed in Florida' courts in determining proper alimony awards:
(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.
. Fla.R.Civ.P. 1.190(b).
Concurrence in Part
(concurring in part and dissenting in part):
I concur with the majority in reversing the order of partition of the real property and leaving the parties as tenants in common.
I dissent from the majority which reverses . the personal property awarded to the wife. This award is sustainable as lump sum alimony to assure an equitable distri
I dissent from the decision to increase the wife’s permanent periodic alimony from $750 per week to $1,200 per week as requested.
It is fair to characterize the husband as a wealthy man by reason of his ownership of a majority interest of common stock in a public corporation which he was instrumental in founding. The wife was properly awarded a quarter of a million shares of the husband’s stock in the corporation, as a special equity, by reason of her contribution. By virtue of this award, the wife is a person of substantial financial means.
The trial court, in its final judgment attempted to allay the wife’s fear that the husband would manipulate the corporation so as to render her stock valueless. The husband did not cross-appeal that provision. The wife is also protected by the remedy of a minority shareholder’s suit. Should there be a substantial change in the relative wealth of the parties, due to manipulation of the corporation by the husband and without any fault on the part of the wife, the wife would be able to avail herself of the court’s aid in a modification proceeding pursuant to Section 61.14, Florida Statutes (1979).
To increase the wife’s permanent periodic alimony as requested on such a speculative assertion is unwarranted. Such an argument presupposes that the wife does not have an adequate available legal remedy. Moreover, the trial court was entitled to believe, based upon the wife’s own testimony, that her standard of living and resulting need were artificially created upon advice of counsel which enabled her to assert the need to which she has now been elevated by the majority opinion. Herzog v. Herzog, 346 So.2d 56 (Fla.1977); Shaw v. Shaw, 334 So.2d 13 (Fla.1976).
