Atkins v. Atkins, s. 91-3402

• Decision Date: 31 December 1992
• Docket Number: Nos. 91-3402,92-104,s. 91-3402
• Parties: 18 Fla. L. Week. D249 Janet E. ATKINS, Appellant, v. Danny D. ATKINS, Appellee.
• Court: Florida District Court of Appeals

Page 570

611 So.2d 570

18 Fla. L. Week. D249

Janet E. ATKINS, Appellant, v. Danny D. ATKINS, Appellee.

Nos. 91-3402, 92-104.

District Court of Appeal of Florida,

First District.

Dec. 31, 1992.

Rehearing Denied Feb. 8, 1993.

Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Orlando, for appellant.

Steven J. Baker, of Baker, Duke & Tipton, P.A., Pensacola, for appellee.

WEBSTER, Judge.

Appellant (the wife) seeks review of a final judgment of dissolution of marriage. She raises two issues: (1) whether the amount of permanent periodic alimony awarded by the trial court is so inadequate as to constitute an abuse of discretion; and (2) whether the trial court's distribution of marital assets and liabilities contravenes section 61.075, Florida Statutes (1989), thereby shortchanging the wife. We conclude that the amount of permanent periodic alimony awarded by the trial court does constitute an abuse of discretion. Therefore, we reverse.

Section 61.08(2), Florida Statutes (1989), which controls in this case, reads:

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:

(a) The standard of living established during the marriage.

(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each party.

(d) The financial resources of each party and the marital assets and liabilities distributed to each.

(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.

The court may consider any other factor necessary to do equity and justice between the parties.

In Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980), the supreme court said that:

Permanent periodic alimony is used to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.

The evidence received at the final hearing established that the parties had been married for approximately seventeen years. No children were born to the parties. For the four years before the parties separated in 1990, their average gross annual income had been approximately $77,000.00. For many years, they had enjoyed a comfortable lifestyle. Both parties were in relatively good health, and both were relatively young (41).

The husband has a baccalaureate degree in business. He has been a public adjuster since 1978; and has been self-employed in that profession since 1984. His financial affidavit offered at the final hearing reflects net monthly income (after deducting from gross income federal income tax, Social Security and health insurance payments) of $7,668.00. His financial affidavit also reflects monthly expenses totaling $6,445.20. However, this latter figure includes a monthly contribution of $1,200.00 to an individual retirement plan, which may not properly be classified as an "expense." Therefore, the husband's monthly expenses are actually $5,245.20.

Before the parties married, the wife had completed approximately three and one-half years of college. She has not, however, earned any degree. She had been employed throughout the marriage, principally in clerical positions. In addition to her regular employment, the wife had always assisted the husband in his business, to the extent that the husband never had to hire a secretary. For approximately two years prior to the parties' separation, the wife worked full time in the husband's business. She has never earned more than $16,000.00 per year; and her average gross annual earnings have been between $12,000.00 and $14,000.00. After the parties had separated, the wife began her own business as a personal property appraiser. At the final hearing, she testified that she was realizing no profit from the business. The trial court imputed gross annual income to the wife of $14,000.00, based upon her past work experience, and there is evidence to support such a decision. The wife's financial affidavit offered at the final hearing reflects monthly expenses totaling $5,616.00. However, the trial court found that "the Wife's financial affidavit is significantly inflated by expenses the Husband is currently paying," and there is ample evidence to support such a finding.

The final judgment reflects that the husband is to receive marital assets worth approximately $154,453.00 (or 53.24 percent of all marital assets), net of any outstanding indebtedness attributable to those assets; and that the wife is to receive marital assets worth approximately $135,637.00 (or 46.76 percent of all marital assets), net of any outstanding indebtedness attributable to those assets. Regarding this distribution of the property, the trial court said:

The marital property is not being divided precisely in half. [The husband] will be awarded a larger proportion of the assets. However, his portion consists of two homes and business assets, as well as the liabilities attached to them. With the sluggish real estate market, those assets may not be as readily convertible to the same cash value. [The wife], on the other hand, will enjoy a greater liquidity in her portion of the assets. From the investment of those assets, she will have additional income. Even with an equitable distribution of the parties' property, the assets will not produce enough income for [the wife] to appropriately support herself.

(Emphasis added.) Without explaining how the figure was arrived at, the trial court awarded the wife $750.00 per month in permanent periodic alimony.

Canakaris establishes the following test for use in determining whether the trial court has abused its discretion in ruling on matters such as that which is the subject of this appeal: "If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." 382 So.2d at 1203. Applying this test to the award of permanent periodic alimony made by the trial court, we are convinced that, considering all of the relevant factors, the award is so unreasonably low as to constitute a clear abuse of discretion.

The final judgment reflects that the wife is to receive approximately $92,000.00 in liquid assets (the balance of the assets distributed to her consist principally of a car, household furnishings, clothing and jewelry); and that the husband is to receive approximately $67,500.00 in liquid assets (the balance of the assets distributed to him include the marital home, a one-half interest in a vacation condominium, a car, household and office furnishings and jewelry). However, the wife has no home. Moreover, the $14,000.00 in gross annual income from employment which the trial court attributed to the wife breaks down to approximately $1,050.00 per month in net income. If one adds to that figure the $750.00 that the husband has been ordered to pay in alimony, the resulting total net monthly income for the wife is approximately $1,800.00. If one then subtracts from the husband's net monthly income of $7,668.00 the $750.00 in alimony which he has been ordered to pay, the resulting total net monthly income for the husband is approximately $6,918.00; or almost four times that of the wife.

Recognizing that the wife's financial affidavit is "significantly inflated" because it lists expenses which were being paid by the husband, the fact remains that the wife, who had enjoyed "many of the accouterments of fine living" during the marriage, is now forced to exist on a relatively meager income; whereas the husband will continue to enjoy a lifestyle very much like that the parties enjoyed during the marriage. Even after the husband has paid the $750.00 in alimony and his monthly expenses of $5,245.00, he will still have roughly $1,670.00 (or almost as much as the wife's net monthly income) remaining.

Obviously, "it is the exceptional case when a couple's resources and earnings prove sufficient to maintain two independent households in the same manner as the original household." Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA1989). "However, a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be 'shortchanged.' " Canakaris, 382 So.2d at 1204. Accord Wright v. Wright, 577 So.2d 1355 (Fla. 1st DCA), review dismissed, 587 So.2d 1331 (Fla.1991).

It is apparent that the amount of alimony awarded by the trial court is insufficient to meet the needs of the wife, as those needs "have been established by the marriage of the parties." Canakaris, 382 So.2d at 1201. On the contrary, it confines the wife to a standard of living considerably lower than that established during the marriage; while the husband continues to enjoy a relatively affluent lifestyle. The wife's needs are considerably greater than can be met by the amount of alimony awarded; and the husband has the ability to...