DiPrima v. DiPrima, 82-448

• Decision Date: 07 July 1983
• Docket Number: No. 82-448,82-448
• Citation: DiPrima v. DiPrima, 435 So.2d 876 (Fla. App. 1983)
• Parties: Joseph Ralph DiPRIMA, Appellant/Cross-Appellee, v. Jacqueline Mary DiPRIMA, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 876

435 So.2d 876

Joseph Ralph DiPRIMA, Appellant/Cross-Appellee, v. Jacqueline Mary DiPRIMA, Appellee/Cross-Appellant.

No. 82-448.

District Court of Appeal of Florida Fifth District.

July 7, 1983.

Rehearing Denied Aug. 9, 1983.

Elting L. Storms of Storms, Krasny, Normile, Dettmer & Gillin, P.A., Melbourne, for appellant/cross-appellee.

P.F. Nohrr, Melbourne, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellee/cross-appellant.

FRANK D. UPCHURCH, Jr., Judge.

The husband, Joseph DiPrima, appeals from a judgment of dissolution. The wife, Jacqueline DiPrima, cross-appeals.

The husband contends that the court erred in awarding the wife $3,000 per month permanent alimony and $500 per month child support, in awarding her his interest in the marital home, and in awarding her a one-half interest in his one-half interest in a note (the "Carriage Park note") as a special equity. The husband also contends the trial court erred in reserving jurisdiction as to the question of partition of the Rosewood Apartment property.

The wife contends that she was entitled to more in the way of equitable distribution or lump sum alimony, that the court erred in determining the balance due on the note, that the court erred in requiring her to transfer her interest in the stock of certain corporations to the husband without compensation, and in granting her only a partial award of attorney's fees and costs.

The husband's net worth was approximately $2,600,000, all of which was acquired during the twenty-year marriage. Three children were born of the marriage. The oldest one, nearly twenty, was away at college and was supported by the husband. The other two children, ages eighteen and thirteen, were living with the wife.

We conclude that in view of the assets and the substantial income of the husband (nearly $2,000 per week), the award of permanent alimony and child support to the wife was not an abuse of the trial court's discretion. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). We further find no abuse of discretion in the award of the husband's interest in the marital home to the wife. The court did not label the award as lump sum alimony or otherwise. The award here, however, can be sustained as lump sum alimony or "equitable distribution." Canakaris. See also White v. White, 429 So.2d 730 (Fla. 1st DCA 1983); Mahan v. Mahan, 415 So.2d 146 (Fla. 2d DCA 1982); Kirchman v. Kirchman, 389 So.2d 327 (Fla. 5th DCA 1981). It was also to some extent influenced by the transfer of the wife's interest in certain corporations.

We also reject the husband's contention that the trial court erred in reserving jurisdiction as to the question of partition of the Rosewood Apartment property. That property is owned by a partnership comprised of the parties and the husband's parents. Since the parents only had an interest in the Rosewood property and were proper and necessary parties to any suit to partition, we see no obstacle to proceeding as the trial judge did, reserving jurisdiction to partition. The parents may be made parties in that action.

The wife argues in her cross-appeal that the court erred in finding the outstanding balance on the Carriage Park note to be $477,381. It is clear from the judgment that the court intended the wife and husband each to have a one-half interest in the mortgage. The wife's interest was to be reduced by the amount of any additional federal income taxes "paid or to be paid ... either as a result of restructuring the sale because of the court's award ... or any other increased [taxes which the husband] becomes obligated to pay as a result of" the award. Thereafter the balance was to be divided equally. The husband was required to furnish a statement from Carriage Park signed by a CPA showing the balance as of December 31, 1981. It is obvious the court intended the wife to have a one-half interest in that figure and that the finding by the court that the balance was $477,381 does not limit her to that amount. The husband also argues that the wife was not entitled to a special equity in the note. While technically this does not fit the "special equity" situation, see Canakaris at 1200; Duncan v. Duncan, 379 So.2d 949 (Fla.1980), it was clearly sustainable as lump sum alimony under a plan of equitable distribution. Canakaris; Firestone v. Firestone, 263 So.2d 223 (Fla.1972).

The wife next claims that the court erred in not awarding her a larger share of the marital assets. She points out that the couple accumulated all of their assets during a twenty-year marriage. In Canakaris, the supreme court observed that:

In granting lump sum alimony, the trial court should be guided by all relevant circumstances to insure 'equity and justice between the parties.' § 61.08, Fla.Stat. This Court recognized in Yandell v. Yandell [39 So.2d 554 (Fla.1949) ] the broad scope of the trial judge's discretion in granting lump sum alimony, consistent with the statutory mandate.

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A judge may award lump sum alimony to insure an equitable distribution of the property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status.

382 So.2d at 1201.

The husband maintains that because of the wife's "misconduct" she was awarded far in excess of what she should have been awarded. The husband did not plead adultery, see section 61.08(1), Florida Statutes (1981), and admits there was no proof of same. While the husband concedes that the wife...