Opinion
No. 75-266.
December 26, 1975.
Appeal from the Circuit Court, Orange County, Parker Lee McDonald, J.
John M. Cain, Orlando, for appellant.
Robert W. Olsen, Orlando, for appellee.
Husband appeals a final judgment of dissolution. We reverse the judgment insofar as it awarded the husband's interest in jointly owned stock to the wife as lump sum alimony. We affirm the remainder of the judgment as being a proper exercise of the trial court's discretion.
The wife requested alimony in her petition for dissolution, but thereafter testified plainly that she did not require any alimony, but would need child support for the three minor children. The trial court nonetheless made, in addition to child support, the lump sum alimony award.
The wife's knowledgeable disclaimer, when combined with the evidence and accompanying awards, served to make this particular lump sum alimony award an abuse of discretion. See Posner v. Posner, 257 So.2d 530 (Fla. 1972); Posner v. Posner, 233 So.2d 381 (Fla. 1970); Black v. Black, 247 So.2d 775 (3d DCA Fla. 1971); Costa v. Costa, 245 So.2d 123 (2d DCA Fla. 1971).
In the present instance the wife's statement that she did not need alimony was unrebutted by testimony or evidence. Furthermore, the husband may have been mislead. He naturally did not produce any positive evidence that she did not need alimony, as she had disclaimed any need. In light of these facts: (1) there was no evidence presented by the wife of need, (2) the wife disclaimed any need for alimony, and (3) it was not patently clear she was in need of alimony, the lump sum alimony award was erroneous. White v. White, 314 So.2d 187 (4th DCA Fla. 1975); Roberts v. Roberts, 283 So.2d 396 (1st DCA Fla. 1973).
We reverse and remand for action not inconsistent with this opinion.
Reversed and remanded.
OWEN, J., and REASBECK, JAMES M., Associate Judge, concur.