Ellis v. Ellis, 96-2624
| Decision Date | 05 September 1997 |
| Docket Number | No. 96-2624,96-2624 |
| Citation | 699 So.2d 280 |
| Parties | 22 Fla. L. Weekly D2119 Hubert James ELLIS, Appellant, v. Barbara D. ELLIS, et al., Appellees. |
| Court | Florida District Court of Appeals |
Paul Martz, St. Augustine, for Appellant.
Judith G. Shine of Miller, Shine & Bryan, P.A., St. Augustine, for Appellee.
Hubert James Ellis appeals a final judgment of dissolution of marriage challenging: (1) the value placed upon the stock of a close corporation awarded to his former wife, Barbara D. Ellis, (2) the denial of alimony to him, (3) the award of permanent alimony to his former wife and (4) the denial of attorney's fees to him. We affirm.
At the time of the dissolution of this 39 year marriage, the former wife was 57 years old, a recent stroke victim, and suffered from an ulcer and hypertension. The former husband was 60 years old and suffered from manic depression. He served as a police officer from the beginning of the marriage until 1978, when he suffered a nervous breakdown. After two years of paid leave, he retired and the parties began living on his pension and social security disability income. In 1985, they moved from New York to St. Augustine, Florida, bringing with them $189,000 in liquid assets.
They decided to start a business in the latter part of 1986 and purchased two retail stores in the St. Augustine area for approximately $64,000. The stores, which almost exclusively sold souvenir T-shirts, have since been relocated numerous times and renamed. By the time the parties separated, the business had been incorporated in the former wife's name, and there were three retail outlets. 1 As business improved, the parties continued to invest more of the funds they had brought with them from New York. The former wife also believed that she invested $100,000 that she received from her aunt. As of December 31, 1994, the balance sheet of the couple's corporation, Barbara D. Ellis Enterprises, Inc., ("BDE") reflected that the combination of the book value of their equity and their loans to the corporation totaled over $260,000.
The trial court awarded to the husband assets valued at approximately $209,000, the majority of which consisted of a pension plan valued at $170,921. The former wife was given assets and responsibility for liabilities
resulting in a net distribution to her of approximately $198,000. The bulk of the wife's distribution consisted of the BDE stock which the trial court found to be worth $200,000, a value that was ascribed to it by the former wife's expert witness.
The former husband challenges the value the trial court placed on the BDE stock in view of his expert's opinion that it was worth $702,000 on December 31, 1995. His expert relied primarily on the results of BDE's sales in 1995.
The former wife's expert valued the BDE stock at $200,000 as of the date of the filing of the petition for dissolution, April 27, 1995, the prescribed valuation date unless the trial court finds another date equitable and just under the circumstances. § 61.075(6), Fla. Stat. (1995). The former wife's expert, in preparing his appraisal of the stock, concentrated on the overall performance of the business in the three years prior to the filing of the petition for dissolution, fiscal years 1992, 1993 and 1994. He also examined the company's statements for the fiscal year 1995 but concluded that for purposes of valuation analysis, the 1994 year end reports would be a better indication of value in that their cut off date--December 31, 1994--was closer to the date of the filing of the petition for dissolution, April 27, 1995, than the year end reports for 1995. Due to BDE's history of losses and marginal profitability, the former wife's expert relied primarily on a liquidation approach to value the stock, rather than a going concern approach. He concluded that if the assets of BDE were liquidated in two months the company would have a liquidation value of $155,000. He then placed an 85% weight factor on the liquidation value of $155,000 and a 15% weight factor on a "sales approach" value of $425,000 to arrive at an estimated fair market value of $200,000.
Although there is a large disparity between the two valuations, there exists competent, substantial evidence to support the trial court's selection of the value assigned to the BDE stock by the former wife's expert. 2 Comparatively, the valuation by the former husband's expert focused almost exclusively on the year 1995 and largely ignored the historical performance of the operations. It also appeared to be based on an unproven assumption that the parties had materially misstated their taxable income for several years, whereas the former wife's expert reasonably recognized the volatile historical earnings pattern of the business as negatively impacting its sale value. He also recognized as a negative factor the strong possibility of liquidation, and the practical difficulty of attracting a buyer who would pay a premium for the goodwill of BDE, a corporation that essentially engages in t-shirt sales, where "the threat of new competition is ... high since the barriers to entry for this type of business are relatively low." We will not disturb the trial court's determination of the value of BDE.
The former husband argues that he is entitled to alimony because his former wife had taxable income on her 1995 return of $65,000, while he only received benefits totaling approximately $30,000. His argument ignores the uncertainties inherent in the continued success of BDE, particularly given its historical performance. Furthermore, during the pendency of this divorce, one of the parties' six children, one who had played an important role in BDE's management, opened his own store in the same location where the former wife had been forced to close a third store. The closing of the store, the son's decision to compete with his mother and the former wife's health contribute to the uncertainty of the continued success of BDE. We note further that the former husband has a pension worth $170,900, and in addition
collects social security disability benefits of over $1,200 per month. We believe that the trial court reasonably denied the former husband's request for alimony because he has failed to show either that he needs it or that the former wife has the ability to pay it. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).
In Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), the Florida Supreme Court observed that vested matured retirement benefits are marital benefits subject to equitable distribution. These benefits may be considered as a source of permanent periodic alimony but if they are, they should not also be considered to be a distribution of property. The court noted by way of example that if a wife "received through equitable distribution or lump sum alimony one-half of the husband's retirement pension, her interest in his pension should not be considered as an asset reflecting his ability to pay." Diffenderfer at 267. In this case, the trial court's award to the former wife of $1 per year permanent alimony leaves open the possibility of increasing her alimony should BDE's profitability decline. The former husband fears that any increase will impact his equitable distribution. The concern is unfounded, however, since he also collects over $1,200 per month in social security disability income. There was no Diffenderfer error in granting alimony to the former wife because the former husband's social security disability income is potentially available for payment of this alimony. Pilny v. Pilny, 658 So.2d 1110 (Fla. 5th DCA 1995) (). Although we affirm the nominal award of alimony, we note that any future increase of that award should be made without reference to the former husband's pension. The pension was awarded to the former husband as part of his equitable distribution and therefore cannot be looked upon as a source of alimony. Diffenderfer.
The former husband received slightly more than 50% of the couple's marital assets and enjoys an income stream comparable to that of his former wife. McIntyre v. McIntyre, 434 So.2d 61 (Fla. 5th DCA 1983) () The former husband has not shown the trial court abused its discretion in denying his request for an award of attorney's fees.
We affirm the final judgment of dissolution with the caveat that the former husband's police pension cannot be viewed as a source of any future increase in alimony.
AFFIRMED.
The bad conduct of either party to a marriage, whether it is abuse or adultery, simply cannot be banked for twenty-five years and then withdrawn and applied toward a greater award of alimony or distribution of marital assets than would otherwise be justified. In my view, that is what happened here. It is uncontested that the husband was physically abusive during the first fifteen years of this forty-year marriage. It is equally uncontested...
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