Diffenderfer v. Diffenderfer, AV-79

• Citation: 456 So.2d 1214
• Decision Date: 17 September 1984
• Docket Number: No. AV-79,AV-79
• Parties: Patricia P. DIFFENDERFER, Appellant, v. Richard L. DIFFENDERFER, Appellee.
• Court: Court of Appeal of Florida (US)

Page 1214

456 So.2d 1214

Patricia P. DIFFENDERFER, Appellant, v. Richard L. DIFFENDERFER, Appellee.

No. AV-79.

District Court of Appeal of Florida,

First District.

Sept. 17, 1984.

Rehearing Denied Nov. 1, 1984.

Cynthia S. Tunnicliff, of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tallahassee, for appellant.

Keith J. Kinderman, Tallahassee, for appellee.

SHIVERS, Judge.

In this dissolution of marriage, the wife appeals the granting of various awards to the husband, and the failure to grant certain awards to her. We affirm awards to the husband of half the parties' Eastman Kodak stock and half the wife's savings account, and do not disagree with the trial court's directive that the wife pay her own attorney's fees and costs. We remand for reconsideration the failure to award the wife permanent periodic alimony, the award to the wife of rehabilitative alimony, and the award to the husband of the Alligator Point property.

The parties involved in this appeal were married in 1953, with four children born of this marriage, none now minors. Both the husband, now 54, and the wife, now 52, worked throughout the marriage at jobs outside the home and continue to do so. The husband works as a federal engineer, as he has done for the past thirty years, now earning a salary of $44,000 a year. The wife works as a full time registered nurse earning $23,000 a year, although she worked only part-time during the marriage earning half this salary. In addition, the husband is entitled to retirement benefits pursuant to a federal retirement plan. At trial, evidence was introduced that, assuming the husband retired in February of 1984, and further assuming the husband lives to his normal life expectancy of seventy-six years of age, the present value of the husband's retirement benefits is $297,000. The husband testified that he had paid in approximately $44,000 during the course of the marriage towards this retirement plan.

The husband is in good health. The wife's health is in dispute. Nevertheless, it is undisputed that the wife has varicose-vein problems in her legs and that the wife has had the pectoral muscle under her left arm removed as a consequence of cancer surgery.

The contribution of each of the parties is also in dispute. Our review persuades us that the husband has contributed at least his fair share to the marital relationship. This determination seems especially true while the husband attended engineering school, since both parties agree that then the husband went to school full time, worked part-time, and performed half the household chores. Moreover, the husband testified that he continued to perform at least half the household chores throughout the marriage and that he contributed more than the wife in the raising of the parties' children. This testimony of the husband does not seem unreasonable in view of the wife's problem of consumption of alcoholic beverages to excess beginning approximately ten years before the parties' separation in 1981. The extent of this problem is disputed.

During the marriage, the parties maintained a joint savings account. When the husband threatened to leave his wife, the wife systematically withdrew, without her husband's consent, sums totalling approximately $10,000 from this account. The wife used these funds for her personal expenses. During the parties' marriage, the wife's mother gave to the husband and wife 22 shares of Eastman Kodak stock which is titled in the parties' joint names.

The trial court directed the wife to pay the husband $5,000, representing half of the funds withdrawn by the wife from this savings account, and directed that the wife transfer to the husband half of the Eastman Kodak stock. The appellant/wife contends these awards were error. We disagree. See Beaty v. Beaty, 177 So.2d 54 (Fla. 2d DCA 1965) (that court holding that if joint checking accounts were owned by the husband and wife as an estate by the entireties, and if portions thereof were removed by one of the parties for a purpose not consistent with their joint interests, the chancellor could properly require a return of such portion as would do equity); Landay v. Landay, 429 So.2d 1197, 1200 (Fla.1983) (the Florida Supreme Court stating that in the absence of any claim for special equity on either spouse's part, record title bespeaks an equal division of property, with a tenancy by the entireties automatically becoming a tenancy in common upon divorce).

The parties jointly own two parcels of property with houses thereon. The Tallahassee parcel (marital home) is valued at $119,500 with encumbering mortgages totalling approximately $51,000. The other parcel (the Alligator Point beach house) is valued at $60,000 with an encumbering construction mortgage in the amount of $17,100. Also on the Tallahassee parcel is an apartment that yields $180 monthly rental income.

The husband testified that he built the Alligator Point beach house at nights, weekends, and during his annual leave, with the help of two friends, and that a substantial amount of the work on this house was done subsequent to the parties' separation. The two friends of the husband worked on the beach house in exchange for the husband helping them with their construction projects, and, additionally, the husband paid one friend approximately $500 or $600.

The beach house property was purchased by the husband by borrowing $5,000 in his sole name from a bank. This loan was repaid by the husband to the extent of $3,000 from the husband's half share of the parties' income tax returns, according to the husband, with the remainder apparently being repaid through refinancing of some property. Additionally, the parties secured a loan of $40,000 by mortgaging their marital home and used $10,000 of the proceeds from this loan towards construction costs on the beach house. The parties' family corporation, Derferprice, Inc., apparently repaid this $10,000 loan upon the sale of some of its property.

The wife testified she contributed to the beach house by assisting her husband in picking out some of the materials to decorate the house. The husband testified that, in addition, the wife spent part of a two week vacation working on the beach house.

The trial court awarded to the husband the wife's undivided half interest in the beach house property by virtue of the husband's special equity claim. This award was conditioned that the husband pay off the remaining balance, approximately $38,000, of the mortgage taken on the marital home. Here, since it appears that the husband contributed most, but not all of the consideration, in acquiring the Alligator Point property, we remand for reconsideration of the husband's special equity claim. See Landay v. Landay, 429 So.2d 1197 (Fla.1983) (the Supreme Court holding that the correct formula to be used in situations where a spouse furnishes some but not all of the consideration for entireties property is: in addition to that spouse's automatic half share, the contributing spouse acquires a special equity in the property equal to half the ratio which that spouse's contribution bears to the entire consideration).

Before turning to the crux of this appeal, that is, the treatment to be given to the husband's interest in his retirement plan, we mention that we are not unmindful of the Supreme Court of Florida's recent pronouncements on the scope of appellate review with respect to dissolution cases. See Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983). We agree with the Fourth District Court of Appeal that these cases have created doubts as to the proper scope of appellate review in dissolution cases. See McSwigan v. McSwigan, 450 So.2d 284 (Fla. 4th DCA 1984); Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984). We therefore join the Fourth District in certifying the following question to the Supreme Court of Florida as one of great public importance:

DO CONNER v. CONNER, AND KUVIN v. KUVIN LIMIT THE SCOPE OF APPELLATE REVIEW ENUNCIATED IN CANAKARIS v. CANAKARIS, 382 So.2d 1197 (Fla.1980)?

Although not cognizant of Kuvin and Conner, appellant's counsel urged at oral argument that we are not precluded from appellate review of the trial court's judgment since, it is argued, the trial court erred as a matter of law in the treatment of the husband's retirement plan. Specifically, appellant argues that the trial court erred in ruling that only the funds contributed by the husband to the retirement plan during the course of the parties' marriage, i.e., $44,000, should be considered as marital assets. The wife contends that the husband's interest in his retirement plan, reduced to present value after assuming certain contingencies, should have been treated as a marital asset subject to equitable distribution.

The judgment on review gives no indication as to how the trial judge treated the husband's retirement plan and the record is confusing. ¹ Under these circumstances, we agree that appellate review is appropriate, since we cannot say that the trial court's judgment is clearly reasonable and equitable in light of our disposition of how the husband's interest in his retirement plan should be treated.

We find and hold that the husband's interest in his retirement plan should have been considered as a source of payment by the husband in providing for the care and maintenance of the wife. We reject the wife's argument that the husband's retirement plan should have been treated as part of the marital estate, subject to division by the trial court. On this point, we find the reasoning of the Supreme Court of Nebraska in Witcig v. Witcig, 206 Neb. 307, 292 N.W.2d 788 (Neb.1980) persuasive and quote the following from that decision:

We recognize ... that there are jurisdictions that treat pension interests as marital assets, subject to division by the court. See, for example, Hutchins v. Hutchins, 71 Mich.App. 361, 248 N.W.2d 272 (1976); Pinkowski v....