Demont v. Demont

• Decision Date: 12 July 2011
• Docket Number: No. 1D10–2065.,1D10–2065.
• Citation: 67 So.3d 1096
• Parties: Elizabeth McDonald DEMONT, Wife, Appellant,v.Michael E. DEMONT, Husband, Appellee.
• Court: Florida District Court of Appeals

67 So.3d 1096

Elizabeth McDonald DEMONT, Wife, Appellant,

v.Michael E. DEMONT, Husband, Appellee.

No. 1D10–2065.

District Court of Appeal of Florida, First District.

July 12, 2011.

Cynthia L. Greene, of Law Offices of Greene Smith & Associates, P.A., Miami, for Appellant.James G. Roberts, of Roberts & Reiter, P.A., Jacksonville; and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee.LEWIS, J.

Elizabeth McDonald Demont, the former wife, appeals, and Michael E. Demont, the former husband, cross-appeals certain rulings in the trial court's amended final judgment dissolving their marriage. The wife asserts that the trial court erred as a matter of law and abused its discretion in awarding her bridge-the-gap alimony and nominal permanent alimony, and that the court abused its discretion in failing to account for the husband's expenditure of certain funds during the pendency of the dissolution proceedings. The husband asserts error as a matter of law in the court's de facto treatment of a future non-compete/non-solicitation payment of $165,000 from his former employer as a marital asset. We reverse the designation of the $165,000 final payment as a marital asset and remand for the trial court to adjust the equitable distribution plan accordingly. We affirm the amended final judgment in all other respects.

FACTS & BACKGROUND

The parties were married in November 1989 and separated in Spring 2008. The divorce proceedings commenced with the October 2007 filing of the petition for dissolution. The parties have three children, born in February 1991, December 1992, and May 1999. After the trial court issued the amended final judgment in July 2009, an appeal and cross-appeal culminated in our dismissal of the proceedings as premature because the circuit court had reserved jurisdiction over certain material matters. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009). Now that the trial court has issued a supplemental judgment ruling on the outstanding issues, all the issues raised by the parties are properly before us.

The parties' employment and financial history and their marital standard of living are key to understanding the trial court's challenged rulings on alimony and equitable distribution. The husband, born in May 1955, earned undergraduate and law degrees and worked in commercial litigation for several Jacksonville law firms after his 1982 graduation. In 1996, he accepted an executive management position (president) at Suddath Van Lines (Suddath), a national moving and storage company and a former legal client. Although the new position involved a significant pay cut initially, the husband subsequently received generous compensation, bonuses, and fringe benefits. In November 2008, however, Suddath eliminated the husband's position, due partly to the economic downturn and partly to the high cost of his salary and expenses. In connection with his termination by Suddath, the husband was subject to an “Employment Resignation Agreement, Non–Compete, Waiver and Release” pursuant to which his company car, a 2005 Lexus 400, was transferred to him. The timing, nature, and amount of the various payouts arising from this agreement are pertinent to the issues on appeal and cross-appeal and will be discussed as appropriate.

Rather than accept another job in the moving and storage business of uncertain longevity that would have required the family to leave Jacksonville, the husband returned to a former employer, the Smith, Hulsey law firm, in December 2008 as a non-equity attorney in commercial litigation, earning $220,000 per year, or substantially less than he had earned at Suddath. The husband testified that at Smith, Hulsey, he was not guaranteed a bonus but could become eligible for additional income, depending on his own and his employer's annual performances.

The wife, born in October 1961, earned a bachelor's degree in business administration. After graduation, she worked as a credit card analyst and a records custodian at a bank and as a litigation paralegal at a law firm during the period from 1985 to the early 1990s. While the parties' children were young, the wife worked occasionally as an uncertified substitute teacher and in a data entry position. By the parties' mutual agreement, however, she forewent full-time, paid employment to devote her efforts to parenting, homemaking, and school volunteering activities. From 1998 forward, she was extensively involved in cultural and charitable community endeavors. She worked briefly as a mortgage loan officer and as an interior design assistant. The wife's commitment to maintaining the home front and establishing the couple's status in civic and social circles—during a period when the husband was working long hours, establishing his professional reputation, and traveling frequently—contributed to his career advancement.

In January 2008, or shortly before the parties' separation, the wife requested temporary support and exclusive use and possession of the marital residence. The husband opposed the motion, based partly on the wife's alleged overspending and partly on her financial need to return to full-time, paid employment. A consent order granted the wife and children exclusive use and possession of the marital home and granted the husband exclusive use and possession of his rented residence. After an evidentiary hearing, the trial court issued a July 22, 2008, order on temporary needs, intended to be of limited duration and premised on the expectation that the dissolution trial would commence in 90 days.

During the interim period before trial, the husband was ordered to continue paying the mortgage on the marital residence ($6,430 a month); the home utilities, cable television, and Internet bills; the wife's BMW car payments; a child's Tahoe vehicle payments; all automobile, life, and disability insurance premiums; the parties' Bank of America credit line; and the country club monthly bills. These expenses totaled approximately $9,668 monthly. The husband was also directed to continue paying the family's dental, health, and vision insurance through payroll deduction. Additionally, the court ordered the husband to pay in cash $1,000 each pay period, or $2,000 a month, directly to the wife for food, home operating expenses, gasoline, clothing, cell phones, and other essentials. While expressly acknowledging that these financial demands would leave the husband with only about $1,000 in regular monthly income for his own needs, the court found that he “receives the benefit of a significant bonus each year.” Although a series of delays postponed the dissolution trial until mid-May 2009, well after the anticipated expiration of the “temporary” support order, the parties remained bound by the terms of the order. After receiving extensive testimony and documentary evidence, the trial court entered the amended final judgment of dissolution of marriage.

In fashioning an equitable distribution under section 61.075, Florida Statutes (2009), the trial court set valuations and included as the primary marital assets the McGirts Boulevard marital residence ($1.4 million, subject to a $942,000 mortgage), Suddath stock appreciation rights (SAR) due ($707,076), a Suddath payout due in March 2010 ($165,000), a Suddath 401(k) account ($88,062), children's accounts (approximately $25,000), and a 2005 BMW ($22,640, on which $20,000 is owed). Commencing August 2009, any monthly mortgage payments due on the marital residence were to be paid 50–50 by the parties, with additional contributions to be made by the parties for real estate taxes if the residence was not sold by December 31, 2009. The parties were to divide equally the installment payments received from Suddath and to bear equal responsibility for the remaining debt on the BMW. They were ordered to divide equally the Raymond James children's account and one child's 529 account, unless the parties agreed in writing to leave those accounts intact for the children's benefit. The court acknowledged that once the marital residence is sold and the other assets are divided, the equitable distribution will provide a substantial amount of money to each party.

To calculate child support under section 61.30, Florida Statutes (2009), the court listed the parties' gross monthly incomes as $18,333 ($10,468 net) for the husband and $4,050 ($3,900 net) for the wife. Given the parties' combined net monthly income of $14,368 and their respective earning shares of 73% and 27%, the court found the minimum support for two children was $2,556, of which the husband would be responsible for paying $1,900. The court expressly declined to impute income to the wife, given the uncertainty as to if, and when, the wife will be able to secure gainful employment at the earnings level suggested by the vocational rehabilitation counselor. The wife and children are listed as beneficiaries on the husband's $1,250,000 life insurance policy.

ISSUES

I. Alimony

In her pleadings, the wife requested temporary and permanent periodic alimony, citing myriad factors: the parties' lavish marital lifestyle; their approximately 18–1/2–year marriage; their mutual agreement for the wife to forgo outside, paid employment and to devote herself full-time to homemaking, parenting, supporting the husband's career-building goals, and establishing the couple's position in civic and social endeavors; her significant financial needs; and the husband's ability to pay. The trial court recognized the obvious: given the husband's significantly reduced annual income after leaving Suddath, the parties' having to maintain separate residences, and the onerous effect of the parties' recurring and rising expenses for lifestyle items (including the elegant waterfront marital residence, private school tuition, upscale automobiles, and a nice fishing boat), the parties will no longer be able to maintain their extravagant marital lifestyle and patterns of...