Akers v. Akers

• Citation: 582 So.2d 1212
• Decision Date: 21 June 1991
• Docket Number: No. 88-2982,88-2982
• Parties: Sandra Barr AKERS, Appellant, v. Edward Lee AKERS, Appellee. 582 So.2d 1212, 16 Fla. L. Week. D1657
• Court: Court of Appeal of Florida (US)

Page 1212

582 So.2d 1212

Sandra Barr AKERS, Appellant, v. Edward Lee AKERS, Appellee.

No. 88-2982.

582 So.2d 1212, 16 Fla. L. Week. D1657

District Court of Appeal of Florida,

First District.

June 21, 1991.

Rehearing Denied Aug. 14, 1991.

William H. Maness, Jacksonville, for appellant.

Tyrie A. Boyer of Boyer, Tanzler & Boyer, Jacksonville, for appellee.

SMITH, Judge.

Appellant, the former wife, appeals from a final order adjudicating the property and financial issues between the parties in a bifurcated dissolution proceeding. The issues raised on appeal relate to the manner in which the trial court evaluated and distributed real properties owned by the parties; the trial court's determination of marital assets available for distribution, and alleged errors in the allocation of these assets between the parties; the limitation of the alimony award to one year of rehabilitative alimony; and denial of the wife's claim for attorney's fees. We affirm in part, reverse in part, and remand.

The twenty-five year marriage of the parties, both forty-five years of age, was dissolved by final judgment on November 9, 1987, at which time over the wife's objection, presentation of evidence and adjudication of all property and financial matters was reserved for a later bifurcated proceeding. Evidentiary hearings on the reserved issues were held on January 13, 1988, and on August 23, 1988. A final order adjudicating all reserved issues was entered on October 17, 1988. This appeal followed.

The parties married and lived in West Virginia throughout their marriage and until the appellee/former husband's employment required him to move to Jacksonville, Florida. The appellant also moved to Jacksonville after termination of her employment in West Virginia in June 1987. The appellee has worked throughout the marriage for CSX Transportation, or its predecessor railroad company, and has worked his way up to a beginning management level. He has college credits but no degree. His present income (at the time of the hearings) is approximately $65,000 to $75,000 annually, depending upon annual performance bonuses.

The appellant has also been employed throughout the marriage, and until approximately the time of the filing of the dissolution by the appellee in June 1987. She worked for one employer the entire time, doing work in a one-man office as "office manager," earning a gross annual income of approximately $16,000 in the year preceding the filing of the dissolution. She has only a high school education. Since the parties had no children, she has devoted herself to her job, attending to household duties, and accommodating herself to life with the appellee.

During the marriage, the parties acquired jointly-owned real property valued--according to the appellee's testimony, which was accepted by the trial court--at some $180,000. This figure included the $90,000 equity in the new, roughly $240,000 jointly-owned Jacksonville home purchased on the same date appellee filed his dissolution proceeding.

Appellant's challenge to the trial court's disposition of the realty is based upon several grounds, none of which we find meritorious. She first contends that the trial court erred in accepting the appellee's testimony as to values over that of appellant, who placed higher values on the Jacksonville home, which was awarded to appellee, and lower values on other properties which were awarded to her. Thus, appellant contends there was a disparity in the division of these assets. We find that the trial court's valuations were within the range of values presented by the parties, and that appellant has failed to demonstrate that the appellee's testimony was so inherently incredible or lacking in foundation as to require the trial court to disregard it. As conceded by appellant, the applicable rule is that, ordinarily, an owner is qualified to testify to the value of his own property. Hill v. Marion County, 238 So.2d 163 (Fla. 1st DCA 1970); 24 Fla.Jur. 2d 296, Evidence and Witnesses Sec. 659. The trial court's acceptance of appellee's testimony over that of appellant was within the broad discretion vested in the court over such matters. As for appellant's contention that this court should reverse with directions that the trial court appoint an independent expert appraiser, we have been referred to no authority for such action by this court; and even if permissible, we find no necessity or justification for such an extraordinary procedure in this case. The parties had every opportunity to present expert evidence, and their failure to do so cannot be used as a vehicle to obtain a second trial.

With respect to the court's award of the Jacksonville home to the appellee, we again find that the court acted within the range of permissible discretion. The facts are that the appellee has remarried, and desires to reside in the new home. The appellant, on the other hand, although she was awarded temporary possession of the home after the dissolution, and pending resolution of the property and financial matters, by her own admission, intended to return to and make her home in West Virginia. Her argument, as we understand it, seems to be that the trial court, in order to do "equity," should have left undisturbed the parties' joint ownership of this property, so that it could be sold and the proceeds of the sale divided between them. While the trial court might have done as appellant suggests, there were good reasons not to, and in any event, no abuse of discretion is shown with respect to disposition of the home.

We next consider appellant's contention that the trial court erred in its determination of the cash and monetary assets available for distribution, and in its allocation of these assets to each party in the final order. Argument on this issue addresses the court's alleged error in the adoption of appellee's schedule setting out a proposed distribution of marital assets. Appellant contends that the court overlooked or mischaracterized certain expenditures from the parties' joint bank accounts which were charged to the appellant as a part of her equitable division. Appellant also asserts that the court, in calculating the award to appellee, failed to consider certain accounts and monetary sums not disclosed in appellee's statement of marital assets, but which were otherwise proven to be in his possession or to have been received and used by him for his sole benefit. We find that appellant has demonstrated errors on these issues compelling reversal.

The focus of the parties' arguments regarding the disposition of the cash assets of the parties centers primarily upon a joint Merrill Lynch Cash Management Account maintained by the parties. In the final order of distribution, in allocating the Merrill Lynch account, the trial court assumed a starting net value of $144,005.63, of which the sum of $25,062.56 was assigned to the husband, and $118,943.07 to the wife. ¹

The parties presented to the trial court extensive testimony and documentation whereby both parties attempted to account for all sums withdrawn from the account by each party, and to establish whether the sums were used for the sole benefit of one or for their joint benefit. These withdrawals and expenditures of each party were then allocated to them respectively and assigned by the court as a part of each party's share of marital assets in the final equitable division. Although the parties disagree as to the proper starting date for this "accounting," and to some extent on the amounts involved, it is clear that both parties withdrew large sums after their marital friction began in June 1986, and continuing thereafter to the filing of the dissolution proceeding. ² The largest withdrawal by the appellee was the sum of approximately $91,000.00 used as a down payment on the Jacksonville home purchased on the date dissolution was filed. ³

The trial court found that the appellant withdrew sums totaling some $126,000.00 from the Merrill Lynch or other accounts. At the time of some of these withdrawals, appellant was still residing in West Virginia, although her husband had been transferred to Jacksonville. The largest sum withdrawn by appellant was $95,000.00, which she withdrew on June 22, 1987, after the filing of the petition for dissolution by appellee. Appellant testified that this action was prompted by her recollection of the occasion in 1985 when appellant withdrew $40,000.00 from their joint account during a temporary estrangement.

Appellant contends that the trial court overlooked the evidence that of the monies allegedly expended by her from the Merrill Lynch account, a portion of those expenditures represented mortgage payments on the Jacksonville home, totalling $18,993.00, and the expenditure of $1,900.00 for home, lawn and pool maintenance at the Jacksonville home, making a total of nearly $21,000.00 which was improperly allocated as an asset already received by appellant. The court's error in overlooking this item and in otherwise misinterpreting the nature of the appellant's expenditures of the funds withdrawn by her, is highlighted by the trial court's comments in the final order regarding her expenditures. The evidence at the time of the final hearing revealed that the appellant had remaining in her possession the sum of $49,234.20 of these withdrawn funds. Addressing this fact in the final judgment, the court found:

Based upon the "cash on hand or in banks" ... she [the appellant] has chosen to spend from July 1987 to August 1988, approximately $76,000 of the $126,000 cash she had in her sole possession instead of working and saving as she had diligently done along with the Husband during their marriage. The Court cannot ignore that the Husband chose to continue the same work ethic as in the past.

With all due respect to the trial court, as pointed out by appellant, this observation by the court, considered in the light of all the evidence in the record, reveals...