Alpha v. Alpha, 5D03-1013.

• Decision Date: 05 November 2004
• Docket Number: No. 5D03-1013.,5D03-1013.
• Citation: 885 So.2d 1023
• Parties: Randy G. ALPHA, Sr., Appellant/Cross-Appellee, v. Elizabeth M. ALPHA, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

885 So.2d 1023

Randy G. ALPHA, Sr., Appellant/Cross-Appellee, v. Elizabeth M. ALPHA, Appellee/Cross-Appellant.

No. 5D03-1013.

District Court of Appeal of Florida, Fifth District.

November 5, 2004.

Elizabeth Siano-Harris of Stadler & Harris, P.A., Titusville, for Appellant/Cross-Appellee.

Stephen M. Brewer of Stephen M. Brewer, P.A., Titusville, for Appellee/Cross-Appellant.

SHARP, W., J.

Randy Alpha, the former husband, appeals from a final judgment of dissolution, raising numerous grounds: the trial court erred in not making findings concerning the identity of the parties' marital and non-marital assets, and their values as required by section 61.075(3)(a-d); the trial court erred in awarding the former wife, Elizabeth Alpha, rehabilitative alimony in the amount of $350.00 per month for a period of four years; it was error to require Randy to maintain life insurance in the sum of $250,000.00 to secure the award of alimony, and that it was also error to require him to maintain $75,000.00 in life insurance to secure the award of child support for the parties' minor daughter, naming Elizabeth as beneficiary; the trial court erred in awarding Elizabeth $6,570.97 towards her attorney's fees and costs, which totaled $13,141.95; and the trial court erred in valuing Randy's insurance business at $200,000.00, and in finding it was totally a marital asset subject to equitable distribution.

In turn, Elizabeth cross-appeals on the following grounds: she should have been awarded a larger amount of rehabilitative alimony or permanent periodic alimony and she should have been awarded 100% of her attorney's fees because of the great disparity in the parties' ability to earn income.

This case touches on a large number of family law issues and we compliment both attorneys and the trial judge for their competent and professional handling of this case. We affirm the equitable distribution of the parties' marital assets, which was basically 50/50. We remand the alimony award for further findings and consideration by the trial judge. We reverse the partial attorney's fee award for the former wife, finding she should have been awarded the full amount of her fees and costs.

The record establishes that the parties married on March 17, 1989. It was a second marriage for Randy, a first for Elizabeth. One daughter was born in 1993. Elizabeth filed for a dissolution on October 15, 2001, although the parties continued to share the marital residence during the pendency of this suit. Theirs was an approximately twelve and one-half year marriage.

At the time of the dissolution, Randy was 50 years of age and had worked both prior to the marriage and thereafter for Allstate Insurance Company. After the parties married, Randy opened his own insurance agency in Titusville. He asked Elizabeth to obtain two insurance licenses so that she could work in his office. At that point in time, he could not afford to pay anyone else to work for him. She did so, for a number of years, and was paid $1.50 per hour, for the purpose of obtaining workers' compensation insurance.

Elizabeth worked in his office full time until the parties' daughter was born. She quit for a while and then worked part time in the office until 1995, when Randy acquired a partner. Throughout the marriage, Randy built up his insurance business and in the past several years made in excess of $100,000.00 per year. The trial court found, based on Randy's financial affidavit filed in the court, that he has a net monthly income of $5,995.42.

At the time the parties married, Elizabeth was twenty years old and at the time of the dissolution she was thirty-four.¹ When the parties met, Elizabeth was working full time in the Allstate Insurance Office in St. Petersburg, Florida, and was attending a junior college. It was her goal to earn a four-year degree and become a social worker. After the marriage, she moved to Titusville and worked in her husband's new business. However, she continued to attend a community college and earned her two-year degree in 1991. She then began attending UCF and completed twelve credits, prior to the birth of her daughter. When she stopped working part time for her husband, she became a full time homemaker and engaged in many activities with her child, including the BCC Lab School.

Randy commented that Elizabeth was working for free as a volunteer and that she might as well get a paying job. She then became employed part time at Target and more recently she worked as a passenger representative for Walt Disney World at Port Canaveral, earning $6.79 per hour for fifteen hours a week. After filing the suit for dissolution, Elizabeth continued her studies at UCF, with the goal of earning her four-year degree to become a social worker. Based on her financial affidavit submitted at the trial, her net earnings were $303.40 per month.

Prior to the trial, the parties settled numerous issues and entered into a stipulation which the court accepted and implemented, attaching the schedule of division and valuation of the parties' personal and intangible property to the dissolution judgment. These resolved issues were: primary custody of the daughter to Elizabeth; visitation; child support; allocation of the tax exemption; health insurance for the child; distribution of the marital residence to Randy with a $20,000.00 payment to Elizabeth to compensate her for one-half the value of the equity; distribution of the parties' respective automobiles; distribution of all the parties' financial accounts and retirement plans; and most of the items of personal property in the marital home. Left for trial were issues pertaining to an award of alimony, classification of a 2.9 acre tract of unimproved land in Georgia (marital or not marital), the valuation and nature (marital or not marital) of Randy's insurance business, and an award of attorney's fees and costs to Elizabeth.

I. Failure of the Trial Court to Make Findings Required by Section 61.075(3).

Section 61.075(3) provides that prior to other determinations such as awarding or denying alimony, the trial court should determine which assets and liabilities are non-marital or marital, value them, and designate which spouse is entitled to distribution of each asset, supported by fact findings. This court has held in many cases, that unless the trial court makes the findings required by section 61.075(3) as well as those outlined in section 61.08(2), in granting or denying alimony awards, appellate review is defeated, and we must reverse and remand for the appropriate findings. However, more recently this court retreated from that position where the record is sufficient for us to determine that the evidence supports the trial court's rulings, and where the parties fail to request specific findings either at the trial, or on motion for rehearing.²

In this case, the parties stipulated as to how a majority of their marital assets should be distributed and to their values. Neither party requested specific findings in this regard at trial or on rehearing. Further, as to the stipulated items, it is questionable whether specific fact findings are required because section 61.075(3) states it is applicable: "[i]n any contested dissolution action wherein a stipulation and agreement has not been entered and filed...."³ (Emphasis supplied)

As indicated by the stipulation, it appears the parties agreed to divide their marital assets roughly 50/50. Randy received the marital residence, but he was required to pay Elizabeth $20,000.00, for one-half of the equity in the home, at a time in the future not specified. Each received his or her own vehicles of roughly equal values ($18,000.00 for Randy and $15,000.00 for Elizabeth). Randy received all the funds he had in First Union at the time of the filing of the dissolution and Elizabeth retained the funds she received from the sale of her Disney stock and Allstate Annuity (minimal amounts). Each received one-half of Randy's Allstate Retirement acquired during the marriage and Elizabeth received one-half of the listed stocks and mutual fund assets, less a percentage of their value to account for Randy's pre-marital funds. This resulted in a total distribution of $55,110.00 to Elizabeth. Randy received the balance: $38,831.98 pre-marital, plus $55,110.00 marital. The court also split the IRS refund equally between the parties, as they had agreed ($2,740.00 to each). Failure to make specific findings with regard to these assets is not error in this case.

The parties also agreed to the disposition of their personal property, except for two items: a grandfather clock and a Newton painting. The court awarded the clock to Randy and the painting to Elizabeth. The schedule of the personal property and values is attached to the final judgment. Although the items are numerous, few are valued at $500.00, and most are less. Since both parties agreed to the division and their valuation, we can assume it was roughly equal. Even if separated out and added to the parties' asset columns, these values would have little or no effect on the ascertainment of the parties' financial situations, post-dissolution, since they are not income-producing and the parties intended to keep and use them in setting up their separate households. Failure to make specific findings with regard to these assets is not error in this case.

With regard to the two disputed items, the Georgia property and Randy's insurance business, sufficient evidence was presented to support the trial court's findings that both were marital assets. It made specific findings that they were marital, placed a value on each, and made a 50/50 division of each, as required by section 61.075.

In the final judgment, the court set forth its findings as to why it ruled the Georgia property was a marital asset. Although the property had been owned by Randy before the parties married, in 1993 he directed an attorney to put the property jointly in his...