Hallman v. Hallman

• Court: Florida District Court of Appeals
• Writing for the Court: COBB; DIAMANTIS; W. SHARP, J., dissents in part and concurs in part with opinion with which GRIFFIN; GRIFFIN, J., dissents with opinion with which W. SHARP; DIAMANTIS; W. SHARP; GRIFFIN; GRIFFIN; W. SHARP
• Citation: Hallman v. Hallman, 575 So.2d 738, 16 Fla. L. Weekly 591 (Fla. App. 1991)
• Decision Date: 28 February 1991
• Docket Number: No. 89-1285,89-1285
• Parties: 16 Fla. L. Weekly 591 Maria I. HALLMAN, Appellant, v. Kenneth HALLMAN, Jr., Appellee.

Page 738

575 So.2d 738

16 Fla. L. Weekly 591

Maria I. HALLMAN, Appellant, v. Kenneth HALLMAN, Jr., Appellee.

No. 89-1285.

District Court of Appeal of Florida Fifth District.

Feb. 28, 1991.

Fernando M. Palacios, Melbourne, for appellant.

William G. Norwich of Gralla and Norwich, Cocoa Beach, for appellee.

COBB, Judge.

We have considered this case En Banc in order to maintain consistency with a prior opinion of this court. See Bujarski v. Bujarski, 530 So.2d 953 (Fla. 5th DCA), review denied, 537 So.2d 568 (Fla.1988).

The appellant, Maria Hallman, challenges the trial court's award of primary residential custody of the parties' two minor children (one of whom required special tutoring) to the father, the equitable distribution of the marital assets, and the trial court's denial of alimony. We affirm in all respects.

In regard to the award of primary residential custody of the minor children to the father, this was a matter within the trial court's broad discretion, and the instant record does not provide a basis to conclude that such discretion was breached. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).

In determining a fair distribution of the parties' marital assets, the trial court allocated $15,000.00 in credit card debts to the husband pursuant to section 61.075, Florida Statutes (1987), which requires the distribution of liabilities as well as assets. Subsection (1)(g) of that section provides that the court must consider, as a relevant factor, "the contribution of each spouse to the acquisition, enhancement and the production of income ... or the incurring of liabilities to both the marital assets and the non-marital assets of the parties."

The record establishes that the marital home of the parties was sold at a loss prior to entry of the final judgment. The husband was allocated some $18,720.00 in debts (including an outstanding obligation of $3,720.00 on the automobile he received) and ordered to pay $2,500.00 of the wife's attorney's fees, a total in excess of $21,000.00 in obligations. In return, he received the right to an accrued pension, valued at the time of trial at approximately $22,000.00. He was also named primary caretaker for the parties' two minor children.

We have frequently held that an approximate fifty/fifty split of marital assets is equitable. Bain v. Bain, 553 So.2d 1389 (Fla. 5th DCA 1990); Moore v. Moore, 543 So.2d 252 (Fla. 5th DCA 1989); Green v. Green, 542 So.2d 466, 467 n. 2 (Fla. 5th DCA 1989); Poe v. Poe, 522 So.2d 50 (Fla. 5th DCA 1988); Laman v. Laman, 490 So.2d 985 (Fla. 5th DCA), review denied, 500 So.2d 544 (Fla.1986); Ente v. Ente, 442 So.2d 232 (Fla. 5th DCA 1983); Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981). Yet, the appellant terms the instant distribution "inequitable" because of the husband's superior earning ability. That ability, however, is not a factor for purposes of equitable distribution of assets. As we pointed out in Severs v. Severs, 426 So.2d 992 (Fla. 5th DCA 1983), the law does not (and cannot consistent with the United States Constitution) give one spouse a vested interest in the other spouse's future earning ability for purposes of distribution of marital property.

The appellant also argues that she was not shown to have dissipated marital assets or income, yet the record shows that she could give no clear accounting for monies she received from the husband to pay family bills. Those unpaid bills ultimately resulted in the $15,000.00 deficit allocated by the trial court to the husband. The appellant states that the husband ceased putting his salary in a joint account with the wife and, instead, deposited $1,050.00 per month into a C & S bank deposit in Charleston, South Carolina; the evidence is that only one-half of the salary was deposited in Charleston, and even that account was used by the husband to pay delinquent marital bills.

In the instant case, the trial court considered the vested pension rights of the husband as a marital asset which was offset by the marital liabilities imposed upon him. This is entirely consistent with the applicable statute, the holding of the Florida Supreme Court in Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), and the prior en banc holding of this court in Bujarski. No case from any court has ever held that one spouse must automatically be awarded some portion of the other spouse's pension benefits, irrespective of all other equities and the apportionment of other assets and liabilities. Such a myopic approach to equitable distribution of pension benefits and joint liabilities would conflict not only with Diffenderfer and Bujarski, but with the admonition in Canakaris that the trial court has broad discretionary power to utilize various and interrelated remedies to achieve an overall equitable result. Canakaris at 1202.

The trial court's decision not to award alimony is also affirmed. Contrary to the appellant's contention, the instant record does not establish that the wife, who is only 36 years old, has no present or future ability to improve her earning capacity. She testified she made $150.00 to $175.00 a week at a restaurant in a local mall, although at the time of trial below she worked only part-time as a maid. It is apparent her financial status would markedly improve if she were to work full-time.

It is also apparent that another consideration of the trial judge was the financial burden and responsibility imposed upon the husband to establish and maintain a primary residence for the parties' two minor children. The marital residence had been sold and the husband was required to lease housing facilities for his family at an expense of approximately $700.00 per month. He also had to pay the costs of a tutor for the minor daughter, as well as utilities, food and other essentials for the parties' two children.

AFFIRMED.

DAUKSCH, COWART, GOSHORN, HARRIS and PETERSON, JJ., concur.

DIAMANTIS, J., concurs in part and dissents in part with opinion with which W. SHARP and GRIFFIN, JJ., concur.

W. SHARP, J., dissents in part and concurs in part with opinion with which GRIFFIN, J., concurs.

GRIFFIN, J., dissents with opinion with which W. SHARP, J., concurs.

DIAMANTIS, Judge, concurring in part and dissenting in part.

I agree the custody award to the father should be affirmed as the instant record does not demonstrate an abuse of discretion by the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Vena v. Vena, 556 So.2d 436 (Fla. 5th DCA 1990). I also recognize the flexibility of the trial court in devising this scheme of equitable distribution, see Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986), ¹ and in considering the husband's pension funds as a marital asset which was offset by the marital liabilities imposed upon him. Although I may have made a different distribution had I been the trial judge, I cannot say the trial judge abused his discretion in this regard.

I believe the trial court erred, however, in failing to reserve jurisdiction on the issue of alimony. The record demonstrates that the wife, Maria, is 36 years old, has an eighth grade education, has difficulty with the English language, has medical problems with her back and with an ulcer, and is working part time as a maid earning a net monthly salary of $416.86, less $100.00 per month for child support (the award of child support is not contested in this appeal). The husband, Kenneth, completed high school and, as a merchant seaman, has progressed to the level of Third Officer and has qualified and served as a Second Officer. He earned a yearly salary of $61,000 in 1986, $51,000 in 1987 and anticipated earning $26,000 in 1988 with a net monthly salary of $2,368.00. Given this disparity in earning capacity as well as Maria's health problems, her lack of education, her age, and the standard of living enjoyed during the 14 years of marriage, I believe the record establishes that Maria has a need for some form of spousal support. In this regard, the trial court's award of attorney's fees to Maria impliedly recognizes her need for financial support. However, the record is equally clear that Kenneth does not have the present ability to pay such support, though he may have the ability to do so in the future as a result of some substantial change in circumstances which would further increase the disparity in their respective financial positions.

Consequently, I would affirm as to the awards of child custody and equitable distribution, but reverse and remand the case back to the trial court to reserve jurisdiction on the issue of alimony.

W. SHARP and GRIFFIN, JJ., concur.

W. SHARP, Judge, dissenting in part and concurring in part.

I agree the custody award should be affirmed. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Eddy v. Napier, 558 So.2d 199 (Fla. 2d DCA 1990); Vena v. Vena, 556 So.2d 436 (Fla. 5th DCA 1990); Massis v. Massis, 551 So.2d 587 (Fla. 1st DCA 1989). However, I think the trial court breached its discretion by failing to award the wife any substantial portion of the marital assets (other than a 1981 Mercury station wagon and a few sticks of furniture) and no alimony. The record shows that Maria and Kenneth married in 1974 in Spain. Maria was twenty years old, and had only an eighth grade education. She has difficulty with the English language, and has not furthered her education since coming to the United States in 1975. Kenneth completed high school, and through his career as a merchant seaman has taken courses which have allowed him to progress to the status of a Third Officer, and to have top security clearance. He is qualified and has served as a Second Officer.

The parties acquired far more debts than assets. A marital residence owned jointly by the parties was sold while the dissolution was pending, but its sale produced little, if any, equity. The parties were living in a rented home at the date of the dissolution hearing, and the items owned...