Hanks v. Hanks, s. 89-0221

• Decision Date: 06 December 1989
• Docket Number: 89-0335,Nos. 89-0221,s. 89-0221
• Citation: 553 So.2d 340,14 Fla. L. Weekly 2783
• Parties: 14 Fla. L. Weekly 2783 Gussie HANKS, Appellant, v. Freddie HANKS, Appellee.
• Court: Florida District Court of Appeals

Page 340

553 So.2d 340

14 Fla. L. Weekly 2783

Gussie HANKS, Appellant, v. Freddie HANKS, Appellee.

Nos. 89-0221, 89-0335.

District Court of Appeal of Florida Fourth District.

Dec. 6, 1989.

A. Alfred Schreiber of Schreiber, Schreiber & Schreiber, Hollywood, for appellant.

W. George Allen of the Law Office of W. George Allen, Fort Lauderdale, for appellee.

WARNER, Judge.

The wife raises eight points on appeal from a final judgment of dissolution, and the husband raises three points on cross-appeal. The issues involve equitable distribution of marital property, an award of permanent alimony, and failure to award attorneys fees and costs. We affirm in part and reverse in part.

The parties had been married for twenty-three years at the time of dissolution. Both husband and wife were of retirement age and in poor health. The assets in question in this dissolution consisted of a "mom and pop" grocery store and building which included the marital residence in the back; three duplexes and a vacant lot; and several bank accounts and miscellaneous cars. The grocery store had been purchased prior to the marriage, but substantial improvements were made during the marriage. Two of the three duplexes were also purchased prior to the marriage. The wife also claimed that $30,000 held by the husband in trust for his mother was derived from marital funds.

The income of the parties from the grocery store was the subject of widely divergent testimony. The wife's expert concluded that the income from the store was around $55,000, while the husband testified that he only made about $9,000 per year. The wife worked in the store without salary throughout the marriage. The husband also received a disability pension of $754 per month. The parties argued about money throughout their marriage, mainly because, as the trial court found, the husband was very secretive about his holdings and income. The wife always suspected that the store made far more money than her husband disclosed to her, and when she was in charge of running the store for a period of time due to the husband's illness, the wife discovered that the store actually grossed about $300 per day.

In the final judgment the trial court awarded the wife one-third of the value of the marital home and grocery store building, awarded the husband exclusive possession of the grocery store, and awarded the wife exclusive possession of the marital home. However, the trial court determined that it would not make equitable distribution of the business, finding that it would only increase problems in the future between the parties as to what the husband had done with the money. The trial court also divided all jointly owned bank accounts equally; refused to award a share of the $30,000 trust account to the wife; divided equally "two" duplex properties and the vacant lot acquired by the husband "subsequent" to the marriage; divided various other funds and the automobiles of the parties; awarded the wife $1,000 per month in permanent alimony; and denied any claim for attorneys' fees.

The first issue raised by the wife is the equitable division of the marital home and grocery store building by the court. The wife claims both that she was entitled to more than one-third of the value of the real property and that the court erred in awarding exclusive possession of the store to the husband and ordering her to occupy the marital residence. The husband cross-appeals claiming that the court erred in awarding the wife any interest in the store which was purchased prior to marriage. With respect to the division of this marital asset, no reversible error is presented. The store/marital home was in part a non-marital asset because of its purchase prior to the marriage, but the value of its enhancement and improvement subsequent to the marriage must be treated as marital assets for purposes of equitable distribution. Turner v. Turner, 529 So.2d 1138, 1141 (Fla. 1st DCA 1988). Furthermore the wife must be credited for her contributions both by her work in the business as well as her contributions as a wife throughout the course of the marriage. Buttner v. Buttner, 484 So.2d 1265 (Fla. 4th DCA 1986). The court used an elaborate formula to evaluate both the non-marital portion of the asset as well as the value of the wife's contribution to the business. While we may not agree with all of his calculations, the result reached was not an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). ¹

However, it was error to award the husband exclusive possession of the store property for an indeterminate period. Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980); Warren v. Warren, 480 So.2d 707 (Fla. 5th DCA 1986). While this may be a circumstance where exclusive possession of the property is appropriate so that the husband can operate the grocery store business, the trial court awarded him exclusive possession even past the time in which the store may occupy the property. The trial court cannot indefinitely postpone the wife's entitlement to her share of the major asset of the marriage.

As to the wife's claim that the trial court erred in awarding her exclusive use of the marital home, this point is moot as the wife has moved from the marital residence. The trial court had authority to...