Boyett v. Boyett

• Decision Date: 13 December 1996
• Docket Number: No. 95-720,95-720
• Citation: 683 So.2d 1140
• Parties: 21 Fla. L. Weekly D2647 Merle M. BOYETT, Jr., Appellant, v. Eldis Raymell BOYETT, Appellee.
• Court: Florida District Court of Appeals

Page 1140

683 So.2d 1140

21 Fla. L. Weekly D2647

Merle M. BOYETT, Jr., Appellant, v. Eldis Raymell BOYETT, Appellee.

No. 95-720.

District Court of Appeal of Florida,

Fifth District.

Dec. 13, 1996.

George E. Adams of Adams, Hill, Reis, Adams, Hall & Schieffelin, Orlando, for Appellant.

Patrick A. Raley of Infantino and Berman, Winter Park, for Appellee.

GOSHORN, Judge.

Merle Boyett, Jr. ("the former husband") appeals the final judgment and order denying rehearing and/or new trial entered pursuant to a dissolution proceeding involving him and Eldis Raymell Boyett ("the former wife"). The former husband asserts that the trial court erred in (1) requiring him to pay the parties' Sears and appraisal debts and three fourths of the former wife's attorney's fees where it had substantially equalized their monthly incomes, (2) distributing his retirement plan in a manner that will entitle the former wife to benefit from the former husband's labor after the divorce, and (3) awarding the former wife $1,200 per month in permanent alimony. We find that the first two arguments have merit, and accordingly, we reverse in part.

The parties were married on August 20, 1960. At the time of the marriage, the former husband had been employed at the Orlando Utilities Commission ("OUC") for approximately three years and had continued to work at OUC during the marriage. He has a vested retirement plan with OUC, with an anticipated retirement date of September 1, 2001, his 62nd birthday. The present value of the benefit as of the valuation date, June 1, 1993, is $158,931.49, which would entitle the former husband to $2,860.86 per month beginning on the date of retirement. There is a two percent penalty per year for early retirement. If he took retirement on June 1, 1993, the former husband would collect $2,388.82 per month.

The parties owned four pieces of property: (1) a single family home in Groveland, Florida valued at $71,000 that is encumbered by a $37,000 mortgage; (2) eight acres adjoining the Groveland home valued at $36,000; (3) a single family home in Bithlo, Florida valued at $57,000, owned free and clear; and (4) forty acres in Lake County, Florida valued at $28,000 with approximately a $10,000 mortgage.

The trial court entered final judgment of dissolution, distributing the Groveland home and attached eight acres to the former wife and the Bithlo home and forty acres in Lake County to the former husband. Each party received approximately one half of the tangible personal property. In paragraph H of the final judgment, the court treated the former husband's retirement plan as follows:

1. Benefits accrued as of June 1, 1993 will be distributed 50% to wife and 50% to husband upon husband's retirement; and

2. Benefits accruing after June 1, 1993 will be distributed to wife under the following formula and the remainder to husband:

50% X (360 divided by [360 / number of months from June 1, 1993 to date of retirement] );

The court also awarded the former wife $1,200 per month in permanent alimony, citing the factors listed in subsection 61.08(2), Florida Statutes (1993). Further, it required the former husband to contribute $10,000 of the former wife's $15,000 attorney's fees and, citing the former husband's superior earning ability, ordered him to pay 75 percent of the parties' Sears and appraisal debts.

1. Attorney's Fees and Sears and Appraisal Debts

The purpose of section 61.16, Florida Statutes (1993) is to assure that each party to a dissolution action can secure competent counsel. See Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980). The award is not based upon who prevails in the action, but rather, on the parties' relative financial circumstances. Seitz v. Seitz, 471 So.2d 612, 615 (Fla. 3d DCA 1985). Here, the former wife attempts to show that she is in a financially inferior position by asking this court, when comparing the parties' circumstances, as reflected in their respective financial affidavits, to reduce the former husband's monthly expenses by $688 because he is no longer required to make the monthly mortgage payment on the marital home. She then claims that this adjustment turns the former husband's $492.18 deficit into a net of $195.82 per month. However, to be fair, one must also consider the fact that the former husband now has a $1,200 per month permanent alimony obligation. In doing so, it is apparent that the former husband is in as equally poor financial situation as the former wife. Both parties admit that the trial court made a relatively equal distribution of marital assets, while unequally distributing the marital debts. Under these circumstances, this district, as well as others, has found that it is an abuse of discretion to require one party to pay the other party's attorney's fees. See Zulywitz v. Zulywitz, 473 So.2d 275, 276 (Fla. 5th DCA 1985) (stating that although the husband appeared to have a greater financial ability to secure counsel, after considering his monthly alimony obligation, his wife's $9,000 hospital bill that he was required to pay, and his lack of savings, the trial court erred in requiring him to contribute to his wife's attorney's fees, given the fact that she had some stock and savings); see also Gill v. Gill, 652 So.2d 1270, 1270 (Fla. 2d DCA 1995) ("When the trial court has made a truly equitable distribution of marital assets ... it is inequitable to diminish the award by requiring one party to pay the other's fees where both have substantially equal ability to pay.") (quoting Murray v. Murray, 598 So.2d 310, 312 (Fla. 2d DCA 1992)); Keaton v. Keaton, 634 So.2d 798, 799 (Fla. 4th DCA 1994) (declaring that "[w]hen the court places the wife in a financial position equal to her husband, she is not entitled to an award of attorney's fees") (citing Avery v. Avery, 548 So.2d 865, 866 (Fla. 4th DCA 1989)); Naugle v. Naugle, 632 So.2d 1146, 1147 (Fla. 5th DCA 1994) (finding that the trial court abused its discretion in requiring the former husband to pay the former wife's attorney's fees after equally distributing the marital assets and equalizing their incomes through the alimony award) (citing Ariko v. Ariko, 475 So.2d 1352 (Fla. 5th DCA 1985)).

We recognize that in making an attorney's fees award, trial courts are given broad discretion, and therefore, an appellate court will not reverse absent a showing that the trial court abused that discretion. See Ball v. Ball, 554 So.2d 629 (Fla. 4th DCA 1989). In the present case, however, the parties' relative financial circumstances following the final judgment demonstrate that the trial court abused its discretion in making the attorney's fees award. We therefore reverse the award. Likewise, the Sears debt and appraisal costs should be shared equally. Cf. Kimm v. Kimm, 650 So.2d 1119, 1120 (Fla. 5th DCA 1995) (reversing judgment where trial court equally distributed marital assets, but "erred in allocating practically all of the marital liabilities to the husband without any explanation...."). Although the trial court made its distribution because, in its view, the former husband had a superior financial position, the record demonstrates that the parties had relatively equal financial circumstances following the distribution.

2. Former Husband's Retirement Plan

In distributing the former husband's retirement benefits, the trial court utilized the approach taken in DeLoach v. DeLoach, 590 So.2d 956 (Fla. 1st DCA 1991). In that case, the appellate court approved of the "deferred-distribution" method of calculating retirement benefits to be paid to the nonemployee spouse upon the employee spouse's retirement. The court found that such an approach is useful where there are uncertainties that may affect the vesting or maturing of the pension. Under that approach, the trial court awards each spouse an appropriate portion of the pension payment as it is paid and retains jurisdiction to supervise the payment of benefits once the employee spouse actually retires and the benefits are finally distributed. Id. at 963. The court explained:

In those instances where it is difficult to place a present value on the pension or profit sharing interest due to uncertainties regarding vesting or maturation, or when the present value can be ascertained by the type, or lack, of other marital property makes it impractical or impossible to award sufficient offsetting marital property to the nonemployee spouse, then the trial court in its discretion may award each spouse an appropriate percentage of the pension to be paid "if, as and when" the pension becomes payable. The marital interest in each payment will be a fraction of that payment, the numerator of the fraction being the number of years (or months) of marriage during which benefits were being accumulated, the denominator being the total number of years (or months) during which benefits were accumulated prior to when paid. The trial court, when using this method of allocation, will retain jurisdiction and award the non employee spouse some percentage of the marital interest in each payment.

Id. at 963 (quoting In re Marriage of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 63, 397 N.E.2d 511, 519 (1979)) (citations omitted).

Later, in Kirkland v. Kirkland, 618 So.2d 295, 297 (Fla. 1st DCA 1993), the First District expanded the approach in DeLoach to include a case involving a vested retirement plan. In that matter, the former wife argued that the lower court erred in awarding her 30 percent rather than 50 percent of her former husband's pension accumulated during the marriage. The former husband responded that the trial court should have retained jurisdiction and distributed the plan when he actually retired. Although the plan had vested, the First District reversed and remanded, noting that the trial court "failed to account for increases in the appellee's retirement benefits between the date of the dissolution and the date of retirement." Id. at 297. The court noted that ...