Kendall v. Kendall, 94-3685

• Decision Date: 10 July 1996
• Docket Number: No. 94-3685,94-3685
• Citation: 677 So.2d 48
• Court: Florida District Court of Appeals
• Parties: 21 Fla. L. Weekly D1590 Gary D. KENDALL, Appellant, v. Joyce A. KENDALL, Appellee.

Page 48

677 So.2d 48

21 Fla. L. Weekly D1590

Gary D. KENDALL, Appellant, v. Joyce A. KENDALL, Appellee.

No. 94-3685.

District Court of Appeal of Florida Fourth District.

July 10, 1996.

Bennett S. Cohn, Law Office of Bennett S. Cohn, West Palm Beach, for appellant.

Lynn G. Waxman and Louisa Smith-Adam, West Palm Beach, for appellee.

PER CURIAM.

This case arises from the dissolution of the parties' fifteen year marriage. The husband challenges the characterization and valuation of assets in equitable distribution, the awards of permanent periodic alimony and attorney's fees and costs, and the failure to exclude a witness upon violation of the rule of sequestration. We affirm on all issues.

In characterizing the assets, the trial court determined that by signing a prenuptial agreement, the wife had waived her interest in the original values of the husband's share of closely-held family companies, but that the husband's efforts during the marriage contributed to increases in the values of these companies. Without any citation to the record, the husband contends that the increase in value of his interest was due to inter vivos gifts. The trial judge noted that the husband had received gifts of stock and designated those as nonmarital property. The trial court's finding that increases in the companies' values were marital assets subject to equitable distribution is supported by competent substantial evidence, and we find no error. See § 61.075(5)(a)2, Fla. Stat. (1993); Pagano v. Pagano, 665 So.2d 370 (Fla. 4th DCA 1996); Robbie v. Robbie, 654 So.2d 616 (Fla. 4th DCA 1995).

As to the valuation of assets, the husband contends that the trial court erred in not discounting the value of his interests in the family companies. Although the husband contests the credentials of the wife's expert, there is competent substantial evidence to support the trial court's decision not to apply the discount factor suggested by the husband's expert. Further, the husband was not entitled to a credit for his share of the mortgage and lawn care payments made on the marital home, as these payments were awarded to the wife as temporary support. Roth v. Roth, 611 So.2d 1268 (Fla. 3d DCA 1993); Fitzgerald v. Fitzgerald, 558 So.2d 122 (Fla. 1st DCA 1990).

The trial court awarded the wife $650 per month in permanent periodic alimony and half of her attorney's fees and costs. Contrary to the husband's assertions, the parties did not leave the marriage in similar financial positions or with similar earning abilities. In addition, there was no evidence of the wife's ability to become self-supporting. The trial court found that the husband's earning ability was almost twice that of the wife's, and that the husband had nonmarital assets in excess of $400,000. The record supports these findings, which are permissible considerations for an award of alimony under section 61.08(2)(d), (g), Florida Statutes (1993). In awarding attorney's fees and costs, the trial court's consideration of the wife's...