Carr v. Carr, BN-166

• Decision Date: 16 February 1988
• Docket Number: No. BN-166,BN-166
• Citation: 13 Fla. L. Weekly 455,522 So.2d 880
• Parties: 13 Fla. L. Weekly 455, 13 Fla. L. Weekly 480 Mary Jo CARR, Appellant, v. George L. CARR, Appellee.
• Court: Florida District Court of Appeals

Page 880

522 So.2d 880

13 Fla. L. Weekly 455, 13 Fla. L. Weekly 480

Mary Jo CARR, Appellant, v.George L. CARR, Appellee.

No. BN-166.

District Court of Appeal of Florida First District.

Feb. 16, 1988.

Rehearing Denied March 28, 1988.

John L. Myrick of Myrick & Davis, Pensacola, for appellant.

M.J. Menge of Shell, Fleming, Davis & Menge, Pensacola, for appellee.

SMITH, Chief Judge.

The wife appeals a final judgment in a dissolution proceeding contending that the trial court erred (1) in failing to equitably distribute the marital assets; (2) in awarding inadequate permanent alimony, and improperly ordering an award of rehabilitative alimony; and (3) in failing to consider as marital assets the value of assets forming a part of the husband's medical practice.We find error and reverse.

The wife in 1985 filed her petition for dissolution of the parties' marriage of 20 years duration.At the time of the final judgment in April 1986 the wife was 57 and the husband 62 years of age.This was the wife's second marriage, the husband's first.They had two adopted sons, ages 18 and 19, and one natural child, a daughter, age 15.

The husband, a general surgeon, obtained his medical degree in 1952 and began his practice in 1959 in Pensacola.At the time of the marriage he had been in practice for six years, and in 1969 established a professional association for his practice of which he was the sole stockholder.In his amended financial affidavit, the husband listed as "marital assets" the following: the marital home, $135,000; an unimproved lot, $125,000; and personal property in the marital home, $25,000, all owned as tenants by the entireties; a 1979 Oldsmobile, $3,000; cash value of life insurance, $13,500; and cash on hand, $400.Also listed as marital assets were various investments, consisting of rental property, $64,000; interest in Physician's Laboratories and Physician's Laboratories of Northwest Florida, $75,000; Pensacola POB Limited I, $30,000; de LaSalle Estates Limited Partnership, $16,000.The total of these listed "marital assets" comes to $486,900.Also listed in his financial affidavit under the heading "Separate Assets of Respondent" were the following: stock in George L. Carr, M.D., P.A., $70,000; retirement plans consisting of a profit sharing plan, $270,000; pension plan, $168,000; KEOGH retirement plan, $13,068; and his IRA account, $4,732.The total value of these listed "Separate Assets of Respondent" comes to $525,800.He listed liabilities of $220,514 (plus obligations payable to his own pension or professional association totaling $74,000).These figures indicate a net worth in the neighborhood of $800,000 (assuming the $74,000 indebtedness does not reduce his net worth).In addition, the husband's income from his medical practice for the two years preceding the dissolution disclosed income from his medical practice of $125,000, and $127,000 a year, respectively.The rental property owned solely in the husband's name generated $500 per month in rent.

The wife, a high school graduate, had two years of nursing school, and had completed almost all the requirements for an associate degree from the local junior college.She had limited work experience as a medical secretary, which she performed on a periodic basis during her first marriage, and during the early years of her marriage to appellee.During the years 1982 and 1983, she served as Sunday School director for a local church, earning a total of $8,000 for the two years.In 1984, she held a part-time adjunct teaching position in the medical secretary program at the local junior college, for which she received remuneration of $2,500.At the time of the dissolution hearing, she was working part-time in another position at the junior college teaching ten hours a week at a rate of $9.00 per hour.This employment was not expected to continue beyond the current school term.The wife described her health as fragile, complaining of problems with diverticulitis, and chronic arthritis.She was also experiencing some vision problems.The wife listed no assets of her own, other than her undivided one-half interest in the marital home and in the vacant residential lot and her IRA account amounting to $4,938.

In the final judgment, the court ordered joint parental responsibility for the minor child, Caroline (primary physical residence with the wife), for whose support the husband was required to pay $500 monthly, and in addition, to pay the child's health insurance and school tuition.The wife was awarded permanent periodic alimony in the amount of $1,500 per month, plus health and hospital insurance benefits, and rehabilitative alimony of $1,000 per month for a period of 24 months.

The marital assets (as determined by the trial court) were distributed as follows: The wife was awarded the undeveloped lot, valued at $125,000; her IRA amounting to $4,938; the 1979 Oldsmobile valued by the husband at $3,000; one-half of the household furniture and effects, value $12,500; and in addition, was awarded $25,000 in lump sum alimony, payable at $500 per month over a period of 50 months.The assets distributed to the wife, other than periodic alimony, amounted to $167,430, including her own IRA account.The husband received the marital home, value $135,000; one-half of the marital home furnishings and contents, $12,500; the rental property, $64,000; his interest in Physician's Laboratories and Physician's Laboratories of Northwest Florida, $75,000; his interest in Pensacola POB Limited I, $30,000; de LaSalle Estate Limited partnership, $16,000; stock in his medical practice, $70,000 (based upon husband's own financial statement); profit sharing plan, $270,000; pension plan, $168,000; KEOGH retirement plan, $13,068; IRA account, $4,732; and the cash surrender value of life insurance policies, $13,500.These assets totalled $871,800, subject to liabilities of $220,514 (not including $74,000 in obligations owed to his profit sharing and pension plans, or--in effect--to himself), leaving a net distribution to the husband of approximately $651,300, which would be reduced to approximately $626,300 after payment of the $25,000 lump sum alimony to the wife.

EQUITABLE DISTRIBUTION

The trial court did not have the benefit of the Florida Supreme Court's decision in Diffenderfer v. Diffenderfer, 491 So.2d 265(Fla.1986), at the time the judgment was entered.That decision makes it abundantly clear that in considering equitable distribution, the trial court shall consider as marital assets the husband's interest in all profit sharing and pension plans such as those in the present case.The trial court, here, apparently proceeding under the assumption it was required to do so by this court's opinion in Diffenderfer v. Diffenderfer, 456 So.2d 1214(Fla. 1st DCA1984), treated the profit sharing and pension plans as subject only to consideration as a source of payment of alimony for the wife.The final judgment recites, in part: "Respondents' pension and profit sharing plans must be retained by Respondent in order for him to meet his alimony and support obligations."When the alimony award actually made to the wife here is considered together with the division of marital assets between the parties, it appears to us that the trial court reached a result in this case which is at odds with the Supreme Court's Diffenderfer decision, and is incompatible with any reasonable view of equitable distribution under Canakaris v. Canakaris, 382 So.2d 1197(Fla.1980), and its progeny.

At the outset, we find nothing in the supreme court's Diffenderfer decision to justify a grossly disproportionate division of total marital assets based solely upon a finding that retirement or pension benefits are "needed" as a source of alimony and support obligations.It is evident that the trial court here based the "equitable distribution" of marital assets upon the assumption that the husband's profit sharing and pension plans are assets to be set aside solely for the husband's benefit, except for the fact that upon his retirement from active practice as a medical doctor, he must necessarily use income from these investments as a source of payment of alimony to the wife.We find the trial court's finding of a present "need" for use of these retirement assets as a source of alimony and support payments unsupportable, since the husband is an active medical practitioner earning, as previously indicated, in excess of $125,000 per year, not to mention his additional income from other sources.Further, there was clearly no lack of "offsetting assets,"Diffenderfer, 491 So.2d at 268, so that the trial court could (and on remand, may) effect a more equitable division of marital assets with insignificant encroachment, or possibly even none at all, upon the husband's profit-sharing and pension plans.

It is clear, despite appellee's suggestions to the contrary in his brief, that the only "equitable division" of marital properties reflected by the final judgment rendered was directed to all assets other than the profit sharing and pension plans.¹Thus, the wife received some $167,430 in value (including her own IRA), as compared with the husband's receipt of $185,000 in value of comparable assets, and in addition, the total of $525,800 represented by medical practice assets and his profit sharing and pension plans.²We conclude that under no reasonable view can it be found that the husband's obligation to pay the relatively modest sum of $1500 per month periodic alimony (plus health insurance)...