Ghen v. Ghen
| Decision Date | 27 February 1991 |
| Docket Number | No. 88-2630,88-2630 |
| Citation | 16 Fla. L. Weekly 579,575 So.2d 1342 |
| Parties | 16 Fla. L. Weekly 579 Nancy GHEN, Appellant, v. Mitchell J. GHEN, Appellee. |
| Court | Florida District Court of Appeals |
Lewis Kapner of Law offices of Lewis Kapner and Edna L. Caruso, P.A., West Palm Beach, for appellant.
Barbara J. Compiani and Jane Kreusler-Walsh of Klein & Walsh, P.A., and Ronald Sales, West Palm Beach, for appellee.
This is an appeal from a final judgment of dissolution. The wife contends on appeal that the trial court erred in valuing the husband's medical practice for purposes of equitable distribution; erred in reducing both the husband's assets and income as a result of a Medicare liability problem, constituting "double dipping," which resulted in alimony and child support awards which were unreasonably low; and erred in the amount and kind of alimony awarded. We reverse.
The crux of many of the issues in this appeal lies with the evidence presented with regard to the husband's medical practice. Because of medicare overpayments, the husband was obligated to repay Medicare between $60,000 and $120,000 over twelve months. His CPA expert valued his medical practice at $170,699 which figure did not include good will because of the Medicare liability problem. Without the Medicare problem, the practice would be worth substantially more. Unfortunately, in the final judgment the trial court erroneously recited that the husband's expert had set the $170,699 value before she became aware of the medicare problem. And in setting forth the values of the marital assets for equitable distribution purposes, the trial court used the $170,699 figure. The trial court misstated the evidence which resulted in the failure to include goodwill in the valuation of the practice. The Supreme Court has recently held that goodwill may be a marital asset which a court should consider in equitable distribution. Thompson v. Thompson, 576 So.2d 267 (Fla.1991). As the Supreme Court noted, the determination of the existence and value of goodwill must be made by the trial court. We therefore reverse for that purpose and to reconsider the equitable distribution in light thereof.
In figuring the marital asset picture, the trial court both included the value of the medical practice as an asset and included the $112,000 obligation to Medicare as a liability, thus reducing the net assets for distribution. That is acceptable in this case because the C.P.A. did not consider the liability in valuing the business. However, in figuring the husband's income for purposes of establishing child support the trial court also took into account the monthly amount that the husband was paying to Medicare. The wife claims this is the sort of "double dipping" prohibited in Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). In that case the supreme court in considering retirement pensions noted that "injustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations." Diffenderfer at 267. We think the same holds true with respect to consideration of a substantial liability of this nature, namely one like this which is to be paid off in large amounts over a relatively short period of time. Here, the court equally divided the marital net assets, but that included the Medicare obligation. Thus, because of it the wife's share of the assets decreased by $60,000. At the same time the trial court determined that the husband's income was being reduced by almost one-half from $13,000 to $7,000 as a result of monthly payments on the liability which would continue only for about a year. Based on this figure the trial court awarded rehabilitative alimony of $1,500 and child support of $1,200 per month, which was on this record insufficient in light of what the trial court termed a "generous and luxurious lifestyle" which the parties maintained during the marriage. We therefore also reverse based on Diffenderfer and remand for...
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