Starling v. Starling

370 So. 2d 814, 1979 Fla. App. LEXIS 14524

Opinion

DAUKSCH, Judge.

In this appeal from a judgment in a dissolution action the court erred in awarding a special equity in the marital home to the appellee. Steinhauer v. Stein-hauer, 252 So.2d 825 (Fla. 4th DCA 1971). This case is not affected by the decision in Ball v. Ball, 335 So.2d 5 (Fla.1976) because the petition for dissolution was filed before the decision in Ball was final. The court also erred in awarding lump sum alimony to the appellee in view of the lack of ability of the husband to pay the amount awarded and further in view of the adequacy of the periodic alimony award. Gesford v. Gesford, 337 So.2d 1017 (Fla. 4th DCA 1976). In all other respects the judgment is affirmed. We note from pleadings filed in this court that the trial court has under consideration a petition for temporary relief pending appeal which was filed after the taking of this appeal as a petition for modification. One of the errors alleged in this appeal is that the periodic alimony award was excessive. We have given the order of the trial court the benefit of the presumption of correctness and cannot substitute our judgment for that of the trial court but upon remand the trial court is not precluded from considering any change in circumstances affecting the need for alimony and the ability to pay. That need or ability may or may not be affected by this opinion.

The judgment is affirmed in part and reversed in part and this cause remanded for further proceedings.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

MOORE, J., concurs. CROSS, J., concurs only in conclusion.