Belmont v. Belmont, No. 2D98-1561

• Decision Date: 12 May 2000
• Docket Number: No. 2D98-2386., No. 2D98-1864, No. 2D98-1561
• Citation: 761 So.2d 406
• Parties: William S. BELMONT, Appellant/Cross-Appellee, v. Tonya A. BELMONT, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

761 So.2d 406

William S. BELMONT, Appellant/Cross-Appellee, v. Tonya A. BELMONT, Appellee/Cross-Appellant.

Nos. 2D98-1561, 2D98-D98-2386.

District Court of Appeal of Florida, Second District.

May 12, 2000.

Rehearing Denied June 16, 2000.

Cynthia L. Greene of Law Offices of Cynthia L. Greene, P.A., Miami, and Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellant/Cross-Appellee.

Marjorie A. Schmoyer, Sarasota, for Appellee/Cross-Appellant.

WHATLEY, Judge.

The husband, William S. Belmont, appeals and the wife, Tonya A. Belmont, cross-appeals the second amended final judgment of dissolution of marriage. Of the numerous issues raised by each party, we find merit in two of the husband's issues and in one of the wife's issues. We reverse in part, affirm in part, and remand. At the time of the dissolution of the parties' sixteen-year marriage, the husband was 62 years of age and the wife was 46 years of age. No children were born of the marriage. The husband is a practicing ophthalmologist who earned an annual income of between $207,000 and $252,000 at the time of the dissolution. The wife is a registered nurse who was working part-time earning $16 per hour at the time of the dissolution. The wife was intermittently employed during the marriage. The trial court imputed a minimum annual income to her of $30,000.

The parties lived a lavish lifestyle, which included a $1.2 million home, a 34 foot boat, many trips, fine furnishings, expensive clothes, private club memberships, and frequent parties. As equitable distribution, the final judgment awarded each party marital assets worth $1,459,826. The wife also received $3,000 per month in permanent alimony, and the husband was required to pay 75% of her attorney's fees and costs. The husband departed the marriage with almost $900,000 in nonmarital assets.

We first address the issues raised by the husband in which we find merit. We agree with the husband that the amount of attorney's fees the trial court determined were reasonably incurred by the wife's attorney must be recalculated to eliminate those fees charged for time spent on activities for which the husband should not be assessed. Attorney's fees cannot be awarded for services rendered by counsel in a separately filed domestic violence injunction case. See Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997). Accordingly, upon remand the trial court is directed to eliminate from the fee award any fees attributed to time the wife's counsel spent on the domestic violence injunction case. The trial court is also directed to eliminate from the fee award any fees attributed to time the wife's Polk County counsel spent traveling to and from Sarasota County. The wife could and did hire competent counsel in Sarasota County. See Chandler v. Chandler, 330 So.2d 190 (Fla. 2d DCA 1976). Lastly, the trial court is directed to eliminate from the fee award any time attributed to the wife's counsel's physical removal of items from the marital home.

We note that both parties argued that the other party should have been required to pay all of the wife's attorney's fees. In awarding attorney's fees, "the financial resources of the parties are the primary factor to be considered." Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Here, the wife received a sizable equitable distribution award, yet her income is markedly less than that of the husband. The husband also has $900,000 in nonmarital funds. Accordingly, with the exception of the factors we have previously set forth, we find no abuse of discretion in the trial court's award to the wife of 75% of her attorney's fee.

We also agree with the husband's argument that the trial court erred in awarding the wife, as part of the equitable distribution scheme, a home on Manasota Key that was his prior to the marriage and which remains titled solely in his name. Section 61.075(1), Florida Statutes (1997), which governs equitable distribution of property, requires the trial court to "set apart to each spouse that spouse's nonmarital assets and liabilities. ..." Nonmarital assets may not be conveyed, absent agreement, to the non-owning spouse in equitable distribution. See Pollack v. Pollack, 517 So.2d 707 (Fla. 4th DCA 1987). Although this issue was first raised at oral argument, we are not precluded from addressing it because it is the equivalent of fundamental error. Accordingly, we reverse the award to the wife of the Manasota Key home. The undisputed evidence shows that the great majority of the...