STANLEY BERNARD GELMAN, APPELLANT,
v.
ROSLYN UDITSY GELMAN, APPELLEE
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In this dissolution of marriage case, the Florida First District Court of Appeal affirmed the trial court's award of the marital home to the wife as lump sum alimony but reversed and remanded the child support award of $300 per week, finding it excessive and inadequately justified by the trial court's findings.
The court affirmed the award of the home as lump sum alimony, finding the husband had the financial ability to transfer it and marital assets were insufficient for alimony. The court reversed the child support award, requiring the trial court to clarify whether the $300 figure was in addition to or inclusive of specific expenses, and to make explicit findings regarding any child's need for support beyond age 18.
[1] Non-marital assets may be used to provide alimony for support when marital assets are insufficient.
[2] A trial court may award the marital home as lump sum alimony if justified by the evidence and the payor spouse has the financial ability to make the award without substan…
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Join FLexlaw to unlock all legal intelligence“where marital assets are insufficient to provide alimony for support, non-marital assets may be drawn upon”
Establishes the legal basis for awarding the non-marital home as alimony when marital assets alone are insufficient
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Join FLexlaw to unlock all legal intelligenceThe husband and wife were dissolving their marriage with three minor children ages 11, 15, and 17. The marital estate included the marital home (title…
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SHIVERS, Judge.
The husband in this dissolution of marriage action appeals, raising two grounds for reversal: (1) that the trial court erred in ordering equitable distribution of the marital home to wife as lump sum alimony, and (2) that the trial court's award of $300 per week child support was excessive.
We affirm the first point finding, after a thorough review of the record on appeal, that the evidence supports both a justification for the lump sum award of the marital home to the wife, and a finding of financial ability of the husband to make such an award without substantially endangering his economic status. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). Mrs. Gelman conceded that there was a shortage of cash, making equitable distribution of the marital assets as alimony necessary in this case. And, although the evidence indicates' that there are several marital assets besides the marital home, including investment companies, a beauty salon, and husband’s law office, the wife appears to have little or no skills for managing a business or an investment company and the parties’ obviously acrimonious relationship would make joint ownership an unreasonable option.
Mr. Gelman argues that since the marital home was titled in his name alone, and was purchased entirely with money loaned to him by his father, the home constituted a nonmarital asset and, thus, was not properly awarded to Mrs. Gelman. However, where marital assets are insufficient to provide alimony for support, non-marital assets may be drawn upon. Gardner v. Gardner, 452 So. 2d 981 (Fla. 5th DCA 1984).
As to appellant’s second issue, we reverse. At the time of the dissolution hearing in this case, the parties had three minor children, ages 11, 15, and 17. The trial court awarded the wife primary residential care of the children, and ordered the husband to pay child support in the amount of $100 per week per child, as well as to pay for karate lessons for the oldest child and private school tuition and Bar Mitzvah costs for the youngest child, and to maintain health, dental, and life insurance for the children. The final judgment also specifically provided that child support would not be decreased by one third when the oldest child graduated from high school.
We reverse the award of child support on two bases. First, although it is difficult to determine the children’s needs from her financial affidavit, the wife stated at the final hearing that she felt she would need $300 per week to support the three children. It appears from her testimony that this figure included such things as karate lessons and private school tuition; however, the court ordered the husband to pay for these expenses in addition to $300 in child support. Since there is no finding or explanation in the judgment as to why the court awarded an amount in excess of the children’s apparent needs, we reverse and remand for the trial court to either adjust the child support award or enter an amended judgment setting out the basis for the award. McCray v. McCray, 493 So. 2d 1117 (Fla. 1st DCA 1986). The trial court may receive additional evidence in its discretion.
Second, this court has held that where the evidence indicates a child’s continuing need for support and the paying spouse’s ability to contribute, the court may award continuing child support beyond the age of 18. Evans v. Evans, 456 So. 2d 956 (Fla. 1st DCA 1984). However, where the court has made no finding that a child over the age of 18 is dependent, it is improper to require continuing child support payments. Dwyer v. Dwyer, 327 So. 2d 74 (Fla. 1st DCA 1976). Since the evidence in the instant case indicates that the parties’ oldest child will be 18 upon his graduation from high school, and since the court made no finding of dependency or of the husband’s continued ability to pay, we reverse and remand this portion of the supplementary final judgment for the trial court to either strike the continuing child support requirement or make a specific finding of fact which would support the requirement.
Accordingly, we affirm in part, reverse and remand for further proceedings consistent with this opinion.
THOMPSON and NIMMONS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Soles v. Soles, 536 So. 2d 367 (Fla. 1st DCA 1988)…986). As to the merits of the June order, the parties are in agreement that support may not be mandated after a child s eighteenth birthday absent a finding of dependency, even if the child is still attending high school. Compare Gelman v. Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987), with Evans v. Evans, 456 So. 2d 956 (Fla. 1st DCA 1984); also see Carter v. Carter, 511 So. 2d 404 (Fla. 4th DCA 1987). In the present case the court did not find dependency as to the older child. The support award does not spec…
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Hildelisa Rodriguez v. Rodriguez, 550 So. 2d 16 (Fla. 3d DCA 1989)…which she is entitled. This plan would alleviate the necessity for the business to be held solely by the husband in order that he might obtain money in the same fashion and then pay it to the wife as her sole source of support. See Gelman v. Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987) (shortage of cash in marital dissolution proceeding warranted equitable distribution of marital assets as lump sum alimony to wife). Significantly, the wife would not be left relatively impecunious in event of the husband’s death…
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Hormuth v. Hormuth, 766 So. 2d 374 (Fla. 1st DCA 2000)…insofar as it can be construed to order child* support for the parties’ youngest. child beyond his eighteenth year. Our court holds that, absent appropriate findings, it is error to award' child support beyond the agé of eighteen. Gelman v. Gelman, 512 So. 2d 236 (Fla. 1st DCA 1987) (affirming in part, reversing in part, and holding same). The final judgment did not expressly order child support beyond the age of eighteen years; neither did. it make findings which would support continuation of the support ob…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Gardner v. Gardner, 452 So. 2d 981 (Fla. 5th DCA 1984)
- Dwyer v. Dwyer, 327 So. 2d 74 (Fla. 1st DCA 1976)
- Adolphus Daniel Evans v. Rhoda Rea Evans, 456 So. 2d 956 (Fla. 1st DCA 1984)
- McCRAY v. McCRAY, 493 So. 2d 1117 (Fla. 1st DCA 1986)