Hua v. Tsung

• Decision Date: 05 July 2017
• Docket Number: No. 4D15–4213,4D15–4213
• Citation: 222 So.3d 584
• Parties: Nancy B. HUA, Appellant, v. Dennis H.L. TSUNG, Appellee.
• Court: Florida District Court of Appeals

222 So.3d 584

Nancy B. HUA, Appellant,

v.Dennis H.L. TSUNG, Appellee.

No. 4D15–4213

District Court of Appeal of Florida, Fourth District.

[July 5, 2017]

Dirk Lorenzen of Lorenzen Law, Coral Gables, for appellant.

Steven Friedman of Law Office of Steven Friedman, Pembroke Pines, for appellee.

ON MOTION FOR REHEARING

Forst, J.

We grant the motion for rehearing, withdraw our previously issued opinion, and substitute the following.

Appellant Nancy Hua ("Wife") appeals the trial court's final judgment of dissolution of marriage. Primarily, Wife contends that the trial court erred by (1) not awarding her permanent alimony; (2) failing to classify certain stock as assets in determining support; (3) ordering the parties to pay the proceeds of the sale of rental property to a certain non-party creditor; and (4) denying her motion for attorney's fees. We address these arguments below, while affirming without discussion the other issues raised in Wife's appeal, including the classification of certain loans as marital and the legality of the timesharing plan with respect to the couple's children.

Background

Wife's then-husband Dennis Tsung ("Husband") filed for divorce in 2013. By that time, the couple had been married for seventeen-and-a-half years. Both spouses were in their early forties by the time of divorce. Husband was the principal source of income throughout the marriage (abetted by the generosity of his parents), while Wife was both homemaker and, in the last years of the marriage, a stay-at-home mother. There was considerable evidence introduced at trial concerning Husband's various business ventures throughout the marriage. At the time of divorce, Husband was a part owner of a restaurant. He lived in Brazil with a new girlfriend and their two minor children. Wife, meanwhile, remained in Broward County, Florida, where the couple had lived, taking care of the couple's children who were also minors.

Throughout the marriage, Husband and Wife received generous gifts from Husband's parents. In 1999, Husband's father purchased the couple a house in California valued at approximately $800,000. The house was later sold. Then, when the couple moved to Broward County, Husband's parents again purchased a marital home for the couple. Evidence at trial suggested the Broward County home's value was about $650,000 to $700,000. The couple also decided to purchase a rental home (hereinafter "rental property"), subject to a mortgage. The value of the rental property was about $300,000 to $350,000. When Husband could no longer afford to pay the mortgage sometime around 2007 or 2008, his father loaned him approximately $260,000 to pay it.

Although the couple lived a relatively comfortable life during their marriage, Husband's financial affidavits and tax returns demonstrated that lifestyle was due in large part to his father. Husband's latest amended financial affidavit, for 2014, showed that he earned a monthly gross income of $6,295. He listed $1,281,300 in total assets, and over $1,035,199 in total liabilities. Husband reported that his father gave him a substantial amount of assets, but also testified that there were strings attached in the form of great debt. In fact, at trial, the court found that Husband's father loaned Husband approximately $1,410,000 over the course of the marriage. On his financial affidavit, Husband also claimed he owned contingent assets—shares in a company called DSC Holdings Limited—valued at $885,000. Evidence admitted at trial showed the true value of these shares to be in excess of one million dollars. As for Wife, she made no income, and argued at trial that her monthly reasonable living expenses exceeded $20,000. However, the trial court determined that Wife's temporary alimony award, which totaled $2,500 a month and included an unspecified amount of rental income from the rental property, was sufficient to cover her reasonable living expenses.

As such, the trial court fashioned its alimony award after the temporary one. It awarded Wife "conditional rehabilitative alimony," where Wife would receive $2,500 a month for two years as she attended nursing school, which she expressed interest in and which an expert testified she could accomplish in that time frame. Husband would pay the costs of nursing school, which could total up to $12,000. The expert, finding Wife to be in good health, also concluded Wife could earn between $49,920 and $58,240 per year as a full-time nurse.

Analysis

A. Alimony Award

We review the trial court's determination of the type of alimony to award for an abuse of discretion. Canakaris v. Canakaris , 382 So.2d 1197, 1203–04 (Fla. 1980). The trial court's judgment must be supported by competent, substantial evidence. Gray v. Gray , 103 So.3d 962, 963 (Fla. 1st DCA 2012). "However, ‘[w]here a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law.’ " Ondrejack v. Ondrejack , 839 So.2d 867, 870 (Fla. 4th DCA 2003) (alterations in original) (quoting Kennedy v. Kennedy , 622 So.2d 1033, 1034 (Fla. 5th DCA 1993) ).

"In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance." § 61.08(2), Fla. Stat. (2014) (emphasis added); see also Sherlock v. Sherlock , 199 So.3d 1039, 1043 (Fla. 4th DCA 2016). After making these two requisite ("shall") "specific factual determination[s]," the court must then determine the type of alimony to award. § 61.08(2), Fla. Stat. (2014). The alimony statute lists several factors for a trial court to consider when choosing the type of alimony, including ("but not limited to") the duration of the marriage, age of the parties, financial resources of the parties, earning capacities of the parties, employability of the parties, and contribution of the parties to the marriage. Id.

Once the trial court determines that alimony is appropriate, it must choose what type of alimony to award. There is a rebuttable presumption in the alimony statute that a marriage lasting more than seventeen years is a long-term marriage.¹ § 61.08(4), Fla. Stat. (2014). There is also a rebuttable presumption in our case law and that of every sister District Court that an award of permanent alimony is appropriate after dissolution of a long-term marriage. Fichtel v. Fichtel , 141 So.3d 593, 595 (Fla. 4th DCA 2014) ; Motie v. Motie , 132 So.3d 1210, 1213 (Fla. 5th DCA 2014) ; Broemer v. Broemer , 109 So.3d 284, 289–90 (Fla. 1st DCA 2013) ; Alcantara v. Alcantara , 15 So.3d 844, 845–46 (Fla. 3d DCA 2009) ; Schlagel v. Schlagel , 973 So.2d 672, 676 (Fla. 2d DCA 2008). "Neither age nor a spouse's ability to earn some income will alone rebut the presumption." Motie , 132 So.3d at 1213.

As we recently explained, "[i]n almost every case [involving one spouse who has historically been the homemaker in a long-term marriage and a subsequent disparity in income], courts have found that permanent alimony was appropriate." Dickson v. Dickson , 204 So.3d 498, 503 (Fla. 4th DCA 2016) (alterations in original) (quoting Motie , 132 So.3d at 1213 ). However, this is by no means an irrebuttable presumption. A trial court can overcome it by making detailed findings of fact regarding a spouse's need and the other spouse's ability to pay, as well as by considering all the relevant statutory factors listed in section 61.08(2).

The trial court's final judgment implicitly determined that Wife would have a need for alimony, but not beyond the $2,500 she had been receiving each month pursuant to the temporary spousal support order (supplemented by a separate child support provision, gross rental income from the couple's rental property, and Husband's payment of taxes and insurance for the marital property), and that this monthly payment would end in two years, at which time the trial court expected Wife to be holding a full-time job. The final judgment does not include any "specific factual determination" with respect to Husband's ability to pay alimony beyond finding that Husband's "current living expenses to support himself, his family in Brazil and his two children born of this marriage is not sufficient to pay the rehabilitative alimony award." The judgment appears to conclude that, until the marital home is sold (entitling Husband to half of the proceeds), Husband lacks the ability to pay alimony, even the limited rehabilitative alimony conditionally awarded by the trial court.

As noted above, this was a "long-term marriage" and, as such, "the trial court was required to apply the rebuttable presumption in favor of permanent alimony." Dickson , 204 So.3d at 503. The trial court's judgment erroneously fails to make any reference to this presumption in choosing to award Wife conditional rehabilitative alimony, although the judgment does state that the factors enumerated in section 61.08(2) were considered, including the duration of the marriage.

The final judgment of dissolution awarded Wife rehabilitative alimony, consisting of $2,500 per month for two years (which the court erroneously calculated as totaling $62,000), plus Husband paying up to $12,000 in tuition for Wife to attend nursing school. The $2,500 per month is conditioned upon (1) Wife attending school to obtain her degree, and (2) the sale of the marital home (to provide funds for Husband to make the monthly support and tuition payments). In choosing conditional rehabilitative alimony, the trial court imputed to Wife "income equal to $2,500 per month," and also took into account, "[a]s an element of support," that Wife would be either living in the couple's rental property (she would need a new residence with the marital home being sold), or she would be receiving gross rental income from this rental property, with Husband paying half of the tax and insurance.² Thus, if Wife chooses not to attend nursing school, the...