Gentile v. Gentile, s. 89-1410
| Decision Date | 01 August 1990 |
| Docket Number | Nos. 89-1410,89-1466,s. 89-1410 |
| Citation | 565 So.2d 820 |
| Parties | 15 Fla. L. Weekly D1956 John D. GENTILE, Appellant, v. Joan P. GENTILE, Appellee. |
| Court | Florida District Court of Appeals |
A. Matthew Miller of Miller, Schwartz & Miller, P.A., Hollywood, for appellant.
Nancy Little Hoffman of Nancy Little Hoffman, P.A., and Bruce G. Shaffner, P.A., Fort Lauderdale, for appellee.
This is an appeal from a final judgment of dissolution awarding to the wife permanent alimony and child support, and distributing marital property. The appellant husband contends that the cumulative effect of the awards was an abuse of discretion. We agree and reverse.
In its final judgment, the trial court awarded $1,200 per month child support for the parties' three children, day care expense of $50 per week and $550 per month in permanent alimony. It also required that the husband pay a second mortgage on the marital residence as alimony, which amounted to $1,100 per month, and required the husband to keep up medical, dental and life insurance for the children in addition to being responsible for expenses not covered by insurance (the wife's affidavit estimates this at $70 per month).
With respect to the property division, the wife was awarded the husband's interest in the marital home; the furniture in the home; a tax refund of $5,300; a 1987 automobile; one-half of the joint stocks; and her own IRA account. The husband was allowed to keep his 401K thrift plan (26 U.S.C.A. § 401(k) (1988)); pension plan; one-half of the jointly held stock; and was also credited with a part time accounting business which the parties had operated at a loss. (He had given the business to his sister.) Taking into consideration the liabilities associated with these distributions, the wife received 57% of these marital assets or about $155,000 to the husband's 43% or $117,000. The husband was also allowed to keep a lot owned prior to the marriage, however, he was required to pay the wife's attorney's fees as well as his own litigation expenses, the total of which exceeded the value of the lot.
In addition, the parties owned five commercial properties which they agreed to sell. Out of the sale proceeds marital debts were required to be satisfied. However, other debts were left as the husband's sole responsibility. Until sale of the properties, the husband was required by the final judgment to keep all liabilities on the properties current. At the time of the final judgment these liabilities were approximately $1,800 per month for four of the properties, and there was an anticipated $1,600 per month loss on the fifth property because the current lease was to expire two months after the entry of the final judgment. Two properties were under contract for sale at the time of the final judgment, but there were no offers as yet on the other properties.
The husband's gross pay at the time of the final hearing was approximately $73,000. The wife conceded at oral argument that after deducting only taxes, social security, child support, alimony, insurance payments to the husband's company, and mandatory loan repayments, one of which was for the second mortgage on the marital residence (now designated as alimony in the final judgment), the husband is left with only about $10,000. From that, he is required by the final judgment to pay day care expenses; one-half of the medical and dental expenses not covered by insurance; keep current all liabilities on unsold commercial properties; and pay other debts. Besides the foregoing, he must somehow find some money to live on. The wife, on the other hand and according to her financial affidavit, will have all of her expenses met by this award and her income from her current employment, including allocations for monthly pool service; all of her clothing, cosmetics and beauty needs; an allocation for the purchase of gifts; contributions to charity; and allocations for entertainment and vacations. The husband obviously can ill afford any such luxuries for himself.
Although each award of alimony and child support, standing alone, may not be objectionable, it is the cumulative effect of these awards which makes the trial court's judgment an abuse of discretion. As was noted in the similar case of Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980), compliance with the final judgment will leave appellant destitute and unable to provide even the most basic living expenses. This court has stated that an award to a wife should permit her to retain some semblance of her former life style "while at the same time ensuring that the husband is not strapped so that his incentive to strive forward and his lust for life are seriously impaired." McAllister v. McAllister, 345 So.2d 352, 355 (Fla. 4th DCA 1977), cert. denied, (Fla.1978); accord Parham v. Parham, 385 So.2d 107 (Fla. 3d DCA 1980). While some may dispute the financial level at which a spouse loses his "lust for life" and incentive to strive forward, we do not think that anyone would seriously disagree that being left with less than $10,000 to live on out of a $73,000 salary would certainly stifle any incentive the husband here might have for getting up every morning to go to work.
We are mindful of the abuse of discretion standard of Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). However, where the husband's income is nearly exhausted on obligations imposed by the final judgment, leaving him with practically no money to support himself, reasonable persons could not differ as to the impropriety of the actions taken by the trial court. Traditional alimony, it must be remembered, depends upon the "financial ability of the other spouse to make such payment without substantially endangering his or her own economic status." Id. at 1201 (emphasis supplied). Here, the husband's economic status is not only endangered, it is destroyed. Seventy-nine percent of the husband's net pay is taken for alimony and support obligations not including additional medical and dental payments and obligations on the parties' jointly owned commercial properties. Appellate courts have not hesitated to find an abuse of discretion in similar awards. Blum v. Blum; Sokol v. Sokol, 441 So.2d 682 (Fla. 2d DCA 1983) (); Kaylor v. Kaylor, 413 So.2d 870 (Fla. 2d DCA 1982) (); Nicholson v. Nicholson, 372 So.2d 178 (Fla. 2d DCA 1979) ().
In response, the wife points to the husband's remaining capital assets and notes that Canakaris also permits the trial court to consider their value in assessing the husband's ability to pay. Canakaris, 382 So.2d at 1202. The main asset available to the husband upon which to draw to satisfy support obligations is his 401K thrift plan held with his employer. However, the money from this plan is not available to the husband without incurring a 40% tax and penalty...
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