Sussman v. Sussman

915 So. 2d 281, 2005 WL 3299470
CourtDistrict Court of Appeal of Florida
DecidedDecember 7, 2005
Docket4D04-3804
StatusPublished
Cited by4 cases

This text of 915 So. 2d 281 (Sussman v. Sussman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sussman v. Sussman, 915 So. 2d 281, 2005 WL 3299470 (Fla. Ct. App. 2005).

Opinion

915 So.2d 281 (2005)

Harriet SUSSMAN, Appellant,
v.
Melvin SUSSMAN, Appellee.

No. 4D04-3804.

District Court of Appeal of Florida, Fourth District.

December 7, 2005.

*282 J. Scott Gunn of J. Scott Gunn, P.A., Fort Lauderdale, for appellant.

Stephen P. O'Toole, West Palm Beach, for appellee.

WARNER, J.

Following the dissolution of the parties' forty-seven year marriage, the wife appeals the final judgment in which the trial court determined that she had not proven her present need for, or the husband's ability to pay, alimony in excess of the temporary award amount. Because there is ample evidence in the record which shows both a need for additional alimony and the ability to pay more than the temporary *283 award, we reverse for reconsideration of the issue.

The wife filed a petition for dissolution of marriage in December 2002. In July 2003, the parties entered into an agreed order in which they agreed to sell the marital home, and determined the wife would stay in the home until its sale. The husband also agreed to pay the wife $1,000 per month as temporary alimony. The wife was permitted to pay the expenses of the home from marital funds. Thus, the temporary award covered expenses such as food and clothing, but not home expenses.

Home expenses of taxes and homeowners' association fees for the two years prior to the sale of the property amounted to approximately $10,000. In the final judgment, the trial court divided these expenses equally between the parties.

At trial the court heard testimony from both the husband and the wife regarding their marriage. The parties have been married for forty-seven years and have two adult children. When the children were very young, the wife stayed at home with them. During the course of the marriage, the wife held several part-time jobs, and also obtained full-time employment for a total of approximately twenty years. After retirement, she received a pension and social security of approximately $926 per month.

The husband was employed as an air traffic controller and made substantially more income than the wife. He retired because of a disability in approximately 1980, and he received a monthly income of $5,059, which was reduced to $4,300 upon dissolution of marriage. He now receives VA benefits of $104 per month. Thus, his income after dissolution amounts to approximately $4,400 per month, and the wife's income amounts to $926 per month prior to any award of alimony.

At the time of the parties' separation, they lived in a 3400 square foot home in Boca Raton. The house had four bedrooms and a pool, and the parties agreed to sell it as part of the order on temporary relief. The parties also had investments and savings accounts which the husband managed. The wife received around $70,000 from those accounts and used them during the pendency of this action to pay for her expenses and those of the marital home. When the house was sold, the wife received $200,000 and the husband received approximately $280,000, as agreed by the parties to offset joint monies obtained by the wife.

Prior to the separation, the wife drove a larger vehicle but traded it in to lessen the payments. She now pays $255 per month on her replacement vehicle. After the sale of the marital home, she purchased a new home and has a mortgage on the home, although there was no testimony as to the amount of the monthly payment. She paid a down payment of $17,000. The husband also purchased a new home for $275,000, with a ten percent down payment. His mortgage payments are $860 per month. He has many other expenses with his new home, including association fees of $3,000, real estate taxes, and the like.

Prior to the separation, all bills were paid out of the parties' joint income. The wife testified that because she does not have the money which formerly was available to pay their joint expenses, she is financially burdened, particularly with respect to paying for groceries and clothing. In the wife's financial affidavit, she listed over $10,000 per month in expenses prior to the sale of the marital home including $500 per month for food, $2,350 in home expenses, $300 per month in clothing, and over $600 in car expenses, which she testified decreased by slightly over $100 with *284 the purchase of the less expensive vehicle. The husband listed expenses of $3,850, which included $550 per month for food, $250 for clothing, $460 for car expenses, and over $2,000 in house expenses, such as the mortgage, taxes, and utilities. Thus, the basic expenses of the parties were roughly equivalent. However, in her financial affidavit, the wife also listed the additional expense of joint credit card debt and the increased cost of the marital home, which was sold.

In its final judgment, the court made the following determinations with regard to alimony:

The wife seeks and the husband agrees that she is entitled to permanent periodic alimony; the parties disagree as to the amount, the wife claiming $2,218.44 a month and the husband claiming $1,000 a month as determined in the agreed order on temporary relief. The wife did not prove her need for the amount of alimony she claims or that the husband can afford to pay it. She argues that because the husband pre-separation deposited his disability checks into the family account and they had equal use of it, she is entitled to an amount equal to one-half of his future disability payments. This is not the criterion for determining alimony and does not establish her present need for or his ability to pay that amount.
The court has considered the factors for the standard of living established during the marriage, the duration of the marriage, the age and physical and emotional condition of each party, the financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each, 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, all sources of income available to either party and all other relevant evidence. The court finds that the husband shall pay the wife directly permanent periodic alimony in the amount of $1,000.00 per month....

The wife appeals the trial court's determination of alimony, contending that the $1,000 award is clearly inadequate to support her at the standard of living established by the parties and that given the length of the marriage and their standard of living, the parties ought to divide their income. While we agree with the court that mere equalization of the parties' income is generally not the proper method of determining the appropriate alimony, the trial court erred in determining that there was no evidence of her need for alimony in excess of the $1,000 temporary alimony award and that the husband did not have the ability to pay some additional amount of alimony.

A trial court has considerable discretion in determining an award of alimony. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003). Permanent alimony is appropriate where the requesting spouse cannot support herself in accordance with the lifestyle of the marriage. See Bucknam v. Shelton, 849 So.2d 1204, 1206 (Fla. 5th DCA 2003). However, before a court can determine the proper amount of an award of alimony, the court must first determine the actual need and the ability to pay. Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003).

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Bluebook (online)
915 So. 2d 281, 2005 WL 3299470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sussman-v-sussman-fladistctapp-2005.