Johnson v. Johnson

• Decision Date: 27 June 2003
• Docket Number: No. 5D02-425.,5D02-425.
• Citation: 847 So.2d 1157
• Parties: Sandra Diegel JOHNSON, Appellant, v. Irving Douglas JOHNSON, Appellee.
• Court: Florida District Court of Appeals

847 So.2d 1157

Sandra Diegel JOHNSON, Appellant, v. Irving Douglas JOHNSON, Appellee.

No. 5D02-425.

District Court of Appeal of Florida, Fifth District.

June 27, 2003.

Eric K. Neitzke, of Eric K. Neitzke, P.A., and Steven J. Guardiano, Daytona Beach, for Appellant.

Ivan K. Clements, Jr., of Ivan K. Clements, Jr., P.A., DeLand, for Appellee.

PLEUS, J.

This is an appeal of a final judgment of dissolution of marriage. The former wife challenges aspects of the equitable distribution as well as the denial of her request for alimony. The parties were married for 13 years and had no children born of the marriage.

The standard of review is abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). The test to be applied by this court is whether the trial court's order is supported by competent evidence. Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983).

The trial court entered a final judgment which addresses the issues raised by the former wife save for two. A trial court's discretion is abused only where, based on the evidence before the trial court, no reasonable person would take the view adopted by the trial court and "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris, 382 So.2d at 1203. We find no abuse of discretion. This opinion will address first the equitable distribution issues and then the issue of permanent alimony.

EQUITABLE DISTRIBUTION

No mention was made by the trial court in the final judgment of a $1,600 tax refund from the year 2000 which was retained by the former husband. No mention was made of proceeds from two life insurance policies on the former husband's late father which the former husband kept for himself. These policies provided death benefits of $12,000 and the former husband testified the policies were purchased with marital funds.

We conclude the trial court erred in failing to divide the tax refund and the life insurance proceeds between the former wife and former husband.

PERMANENT ALIMONY ISSUE

The uncontroverted evidence was that the former wife had three affairs while married to the former husband. She claims the court denied her alimony because of these affairs. On that issue, the trial judge made the following findings:

14. The Court finds that adultery should not be considered as a bar to alimony in this case because there if [sic] no evidence that the adultery caused the waste or dissipation of marital assets. The Court finds that the adultery caused the marriage to be irretrievably broken.

The crux of the former wife's argument for alimony is that she is 46 years old and suffers from numerous ailments including Crohn's Disease. On the issue of the wife's disability, the court noted:

18. The Court finds that the Wife's Crohn's Disease does not cause her to be totally disabled. The basis for Dr. Cheesman's opinion that the Wife could not work was basically Crohn's Disease would cause her to need to use the bathroom frequently which would be unacceptable to employers. The Court rejects this opinion and finds it unworthy of belief because the uncontroverted and undisputed facts are that the Wife was able to engage in sex with three men, strike up relationships, and carry on affairs with them. Further, the Wife was capable of driving more than 400 miles per week. The Court finds that an office setting is a far more suitable place for someone with Crohn's Disease than an automobile. Therefore, the Court finds that the Wife retains the residual functional capacity to engage in a broad range of sedentary work. Indeed, the Wife currently engages in work that has exertional requirements far greater than sedentary. The Court accepts Dr. Cheesman's opinion as to diagnosis, but rejects his opinion as to disability.

After a thorough review of the transcript, we find competent, substantial evidence in the record to support the final judgment. In Krafchuk v. Krafchuk, 804 So.2d 376, 380 (Fla. 4th DCA 2001), the court noted: "A twelve-year marriage is not considered a short-term nor long-term marriage, but rather falls into a `grey [sic] area.'" When a marriage falls within this "gray area," a determination of entitlement to permanent alimony needs to be decided upon a review of other pertinent factors. We believe the court did just that. See Zeigler v. Zeigler, 635 So.2d 50, 54 (Fla. 1st DCA 1994) (citing Gregoire v. Gregoire, 615 So.2d 694 (Fla. 2d DCA 1992), and Ghen v. Ghen, 575 So.2d 1342 (Fla. 4th DCA 1991)). This is not a case, as the dissent suggests, in which the former wife has passed from relative comfort to poverty or "from prosperity to misfortune."

This case is remanded to the trial court for a modification of the final judgment so that the former wife gets one-half of the tax refund and one-half of the insurance proceeds. Otherwise, the final judgment is affirmed.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

THOMPSON, C.J., concurs.

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

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

I agree the trial court erred in not awarding the former wife one-half of various cash assets which were established as marital, but which were not accounted for in the final dissolution judgment. I also agree with the majority opinion that a thirteen-year-old marriage is neither a short term nor a long term marriage, and accordingly under current case law, it falls in a grey area.¹ However, in my view, the trial court breached its discretion in ruling that the former wife is not entitled to permanent alimony.

In making such a determination the trial court should consider factors other than the length of the marriage.² Factors supporting an alimony award here are: the former wife's failing health and disabilities; the disparity in the incomes between the parties, which is even greater than appears on the face of the judgment because of the trial court's improper imputation of income to the former wife; and the fact that the parties enjoyed a relatively comfortable lifestyle during their marriage, which will drastically end for the former wife under the best of circumstances.

With regard to the equitable distribution of the parties' marital assets, the trial court made an effort to make an equal division between the parties of those marital assets addressed by the court. However, at the trial, it was established without dispute that the former husband obtained and kept for his own benefit a $1,600.00 tax refund for the year 2000 and that he also kept and retained $12,000.00 in death benefits from insurance policies which were paid for by marital funds, on the life of the husband's father who was living with the parties at the end of his life. The trial court's failure to deal with these assets makes even more poignant its equal division of the wife's $13,197.00 award for disability compensation from the Social Security Administration in January of 2000, due and owing effective October 1997. Had it dealt with those additional marital assets, they could have off-set the court's award of half of the wife's disability award to the former husband. Since the court did not do so, I agree the case must be remanded for modification of the final judgment to divide the tax refund and insurance proceeds.

But, the major problem in this case, in my view, is the trial court's denial of permanent alimony to the former wife. The parties had few liquid assets, and left the marriage without substantial assets beyond splitting the $67,000.00 equity in the parties' marital home. The former husband was 50 years old at the time of the dissolution and in good health. He had been a home builder and currently works as a truck driver. He earned $2,572.00 net, per month. The parties enjoyed a comfortable middle class standard of living during the marriage, and lived in a three-bedroom home with a pool, in a nice neighborhood.

At the time of the dissolution, the wife was 46 years old and suffered from numerous mental and physical disorders. Her most debilitating condition was Crohn's disease. It causes her to have severe abdominal pains, described as feeling like "labor pains". People with this disease may have to use the bathroom as much as twenty times a day. It rarely goes into remission, and the majority of patients with this disease die due to recurrent infections. This testimony was not refuted.

It was also established at trial that the former wife has a compression of her vertebra in her cervical spine, which limits her ability to turn her head. She has three compressed disks—one of which she said was the result of a fight with the former husband, when he shoved her against a door. She has had two surgeries for this condition, but cannot have surgery on the third disk because the risk of loss of mobility is too high. She can only do work that allows her to look straight ahead. She also has hidradenitis suppurativa (dysfunctional sweat glands), and has suffered from psoriasis, urinary tract infections and kidney infections.

In addition, it was established at trial that the former wife has been treated for severe and chronic depression and anxiety, an eating disorder and an obsessive/compulsive disorder. This disorder causes her to check and recheck the doors of the house to make sure they were locked, and to check all plugs in the house to make sure appliances were unplugged. It could take her from thirty minutes to two hours to be able to leave her home. To keep her various chronic medical and mental problems under control, the former wife takes numerous medications daily, including Sulfasalazine (used to treat bowl inflammation, diarrhea, and abdominal pain from Crohn's disease) eight times a day, an anti-depressant, and an anti-anxiety drug.

The former wife's mental health counselor testified at trial that her functioning level is 41. A person with a score in the...