Byers v. Byers, 4D03-4402.
| Decision Date | 14 September 2005 |
| Docket Number | No. 4D03-4402.,No. 4D04-1026.,4D03-4402.,4D04-1026. |
| Citation | 910 So.2d 336 |
| Parties | Stephany M. BYERS, Appellant, v. John P. BYERS, Appellee. |
| Court | Florida Supreme Court |
John T. Mulhall III of Rutherford Mulhall, P.A., Boca Raton, for appellant.
Bennett S. Cohn of Law Offices of Bennett S. Cohn, West Palm Beach, for appellee.
Former wife appeals from a temporary relief order and a final judgment of dissolution of marriage in this consolidated appeal. We reverse as to all issues raised and remand for further proceedings.
The parties married on August 25, 1990 and have two children born December 2, 1997 and December 8, 1993. Former wife filed a petition for dissolution in September 2001, and at the time of the final hearing, the parties had been married over thirteen years, former husband was 46, former wife was 37 and the two boys were ages 6 and 10, respectively. An amended petition was filed August 19, 2003.
In seeking temporary relief, former wife stated that former husband, an American Airlines pilot, continued to pay for the expenses of the marital home and support for former wife and their children until the marital home was sold. When the marital home was sold, former wife and the children moved to an apartment and former husband moved into a separate apartment. Each party took the same amount of monies from the sale, $50,000, and placed the remainder in escrow. Former wife, a stay-at-home mother, alleged that she should not have to consume those assets in order to support herself and the children pending the resolution of this dissolution.
In an amended petition for dissolution, former wife sought sole permanent custody of the parties' minor children due to former husband's history of alcohol abuse, temporary and permanent child support, temporary, permanent, periodic and lump sum alimony, life and medical insurance for the benefit of former wife and the children, and attorney's fees.
A temporary relief hearing was held October 15, 2003 and a final hearing held February 18 and 19, 2004. At the temporary relief hearing, the parties' financial affidavits were admitted into evidence. Former husband's financial affidavit dated October 13, 2003, indicated that former husband was an American Airlines pilot with a rate of pay of $16,600.00 per month, with an annual income of $147,625.00 and a monthly gross income of $12,320.00. He claimed he had a present net monthly income of $9,973.00 and monthly expenses of $10,091.00, leaving him with a monthly deficit of $118.00. Former wife's amended financial affidavit dated October 10, 2003, showed no income, with monthly expenses totaling $6,790.00. Further, wife claimed the former husband's gross income for 2002 was the result of an eight-month furlough and rehab for alcohol abuse, but that his income in 2000 and 2001 was $207,730.00 and $219,709.00, respectively.
At the temporary relief hearing, former wife testified that she had not worked since the birth of the couple's first child. The parties separated in 2001 and the marital home was sold in July 2003 for $1.1 million. The net proceeds from the sale were approximately $512,000.00, of which the parties each received $50,000.00 and the remainder was placed in escrow. At the time of the hearing, former wife was renting a townhouse.
At the time of the hearing, former wife used $25,000 of the $50,000 she received from the sale of the house on living expenses for herself and her children. Prior to the sale of the marital home, former husband paid all of the monthly expenses while former wife and the children resided in the marital home, but since the sale of the marital home he stopped paying. Further, prior to the sale of the marital home, former wife's monthly expenses were $10,700, but since the sale of the home former wife's monthly expenses were reduced to $6,500.00.
Former wife also testified that former husband had been relieved of his flying duties for nine months during 2002 for an alcohol-related offense and went into rehab; former husband does not dispute this fact.
Former husband testified that he has been employed by American Airlines as a pilot for twenty years. He was currently a Captain of a Boeing Triple Seven (777), with routes usually to South America or London. Due to concessions between the pilots and American Airlines, the pilots' rate of pay had been reduced by about $50,000.00. However, former husband confirmed that the information contained in his financial affidavit was correct.
Former husband confirmed that he had been paying the mortgage and former wife's other expenses prior to the sale of the home and that he gave her a check for $3,800 a month for two years.
In its order on temporary relief, the court ordered that former husband pay former wife $2,500 per month in child support, commencing October 20, 2003, that the escrowed money be released and divided equally between the parties, and denied all other requested relief.
Pursuant to agreement, the parties stipulated to shared parental and residential responsibility for the children, as well as timesharing, with the former wife designated as the primary residential parent. Because the parties divided the proceeds from the sale of the marital home and the contents of the home to their mutual satisfaction, the issues for trial involved the remaining marital assets and liabilities.
At the hearing, former wife testified that since the sale of the marital home she had been renting a townhouse for $1,840 per month (former wife paid a year's rent ($24,000) in advance so that the monthly rent would be lower). Former wife stated that since August 2003, she had been paying her monthly expenses out of the proceeds from the sale of the house. From the $256,000 she received from the sale of the marital home, former wife had $110,000 left.
In her amended financial affidavit, former wife set forth her monthly expenses for herself and the children as $6,790, of which she had no earned income. Former wife last worked outside the home in 1993, just before the birth of the couple's first child. Since then, she had been a stay-at-home mom. Former wife was a high school graduate, with two years at college, and last worked as a flight attendant. She left her job because both she and former husband had been commuting (they lived in Louisiana and both were based out of Dallas) and they could no longer do that after the birth of their first child. Since former husband made more money, the decision was made that she would stay home. The parties stipulated that former wife had the ability to earn $20,000 per year based upon the conclusions reached by a vocational expert hired by former husband. Her maximum earnings as a flight attendant were $19,237.
Former wife stated that at former husband's urging, their divorce had been put on hold due to his alcohol issues and rehabilitation. Former husband was relieved of his duties and could not resume flying until August 2002. The parties agreed to hold off on the divorce until the house was sold.
Former wife stated that she and the children have health coverage through former husband's employer but that there would be costs associated to her after the divorce. Thus far in the proceedings, former wife has had to pay her own attorney's fees.
As to a Wachovia line of credit, former wife stated that she had no knowledge of such a line of credit and there was no loan against the marital home when it was sold. She stated that she has never seen a note for the Wachovia loan and former husband did not produce any documents as to that debt.
Former husband testified that he is a Captain of an American Airlines Boeing 777 and flies to South America and Western Europe. Former husband was on reserve, and each month was on call to be available to fly with a guarantee of a certain number of days off. At the time of the hearing, he was guaranteed 73 hours (with 83 hours being the maximum). Former husband stated that he rarely exceeded the monthly minimum of flying time because trips were awarded according to seniority, so there was not a lot of open extra flying time on this particular airplane. Former husband has 12 years seniority operating a 777-200, and as of May 1, 2003, the hourly captain's rate was $176 an hour. At the time of the hearing it increased slightly to $180 and for May 1, 2004, the maximum pay rate was to be $192.98 an hour. During the five years immediately preceding the final hearing (1999 through 2003), former husband earned $220,760, $207,730, $219,709, $147,625 and $177,000, respectively.
Former husband testified that he had a Supersaver Retirement Account in effect at the time of the filing of the dissolution action. However, no contributions had been made to that account in five or six years. Former husband also had a life insurance policy through his employer for about $140,000 and had an accidental death policy purchased through the pilots' union.
As to the Wachovia loan, former husband confirmed that it was not in existence at the time of the filing of the petition. Former husband claimed the monies were used to pay the mortgage on the marital home and were paid to former wife for child support.
Former husband explained that he was having a "cash flow" problem maintaining the two households and took out the loan in order to remain timely in his payments. The amount of the loan was $50,000 and approximately $45,666 remained outstanding. Former husband explained that he took out the loan because former wife would not join in refinancing the marital home. Thus, former husband believed that part of that debt should be attributable to former wife. Former husband acknowledged that some of the monies went to pay his personal expenses. Although requested, former husband failed to produce any statements that would verify how the monies were used.
Former husband stated that he...
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