PIA HOUGH, APPELLANT/CROSS-APPELLEE,
v.
ROBERT HOUGH, APPELLEE/CROSS-APPELLANT
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The appellate court affirmed the alimony awards but reversed the denial of attorney's fees for the wife, finding her unable to pay from income while the husband could. It also struck a provision for future alimony modification as it was neither pled nor proved.
The wife appealed a final judgment of dissolution, challenging alimony and attorney's fees. The husband cross-appealed the permanent alimony award and…
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WARNER, C.J.
The wife appeals a final judgment of dissolution, principally claiming that the award of alimony was an abuse of discretion and that the court should have awarded her attorney’s fees. On cross-appeal, the husband primarily claims that the court erred in awarding permanent as opposed to rehabilitative alimony and additional amounts to cover the cost of maintaining two residences for one year while attempting to obtain a buyer. We affirm as to the alimony awards, finding that neither party has shown an abuse of discretion. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202-03 (Fla.1980). We reverse the denial of the wife’s attorney’s fees, because even with the equal distribution of the assets, the husband’s income is greater than the wife’s, and he is in a better position to pay the attorney’s fees. It is apparent from the record that the wife would have to invade her assets in order to pay attorney’s fees, while the husband could pay them from his income. Under these circumstances, the court should have awarded attorney’s fees to the wife. See Bagley v. Bagley, 720 So. 2d 582, 584 (Fla. 4th DCA 1998).
In its final order the trial court also provided for review of the alimony award when the husband reached the age of 62, based upon his testimony that it was the parties’ plan that he would retire at age 59 and by that time she would have finished her education and have established a practice in psychology. We strike that portion of the order, as the issue of modification at a future date was neither pled nor proved. See Cortina v. Cortina, 98 So. 2d 334, 337 (Fla.1957). Moreover, the court did not award the wife rehabilitative alimony in order to obtain her education and achieve that part of the plan of starting a practice.
As to all other issues we affirm.
STONE and STEVENSON, JJ„ concur.
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Stephany M. Byers v. Byers, 910 So. 2d 336 (Fla. 4th DCA 2005)…d husband had enjoyed); see also Batson v. Batson, 821 So. 2d 1141, 1142 n. 3 (Fla. 5th DCA 2002)(numerous cases hold that spouses should not be required to deplete their capital assets in order to maintain their standard of living); Hough v. Hough, 739 So. 2d 654 (Fla. 4th DCA 1999) (wife would have to invade her assets in order to pay attorney’s fee while husband could pay them from his income). In this case, the record demonstrates that for two years prior to the sale of the marital home, former husband p…
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Nicolaus von Baillou v. von Baillou, 959 So. 2d 821 (Fla. 4th DCA 2007)…such a payment. Id. Embedded in the concept of financial need is the notion that an award of fees is proper “to prevent the inequitable diminution” of a spouse’s share of an equitable distribution. Bagley, 720 So. 2d at 583-84; see Hough v. Hough, 739 So. 2d 654, 655 (Fla. 4th DCA 1999); Kendall v. Kendall, 677 So. 2d 48, 49 (Fla. 4th DCA 1996); [*824] Margulies v. Margulies, 645 So. 2d 54 (Fla. 4th DCA 1994). What amounts to an “inequitable diminution” of a share of equitable distribution is a fact-sensit…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Reed v. Reed, 720 So. 2d 582 (Fla. 1st DCA 1998)
- Bagley v. Bagley, 720 So. 2d 582 (Fla. 4th DCA 1998)