Kennedy v. Kennedy

• Decision Date: 23 July 1993
• Docket Number: No. 91-1869,91-1869
• Citation: 622 So.2d 1033
• Parties: 18 Fla. L. Week. D1636 Edward M. KENNEDY, Appellant, v. Mary Ann KENNEDY, Appellee.
• Court: Florida District Court of Appeals

Page 1033

622 So.2d 1033

18 Fla. L. Week. D1636

Edward M. KENNEDY, Appellant, v. Mary Ann KENNEDY, Appellee.

No. 91-1869.

District Court of Appeal of Florida,

Fifth District.

July 23, 1993.

Rehearing Denied Sept. 3, 1993.

Charles W. Willits, Orlando, for appellant.

B. Paul Katz, of Chiumento & Katz, P.A., Palm Coast, for appellee.

EN BANC

PER CURIAM.

The issue in this case, simply stated, is whether the trial court erred in its decision to equalize the parties' incomes under the facts of this case. We find that it did and reverse.

The record in the instant case shows that the trial judge felt that consideration of the first two factors enumerated in section 61.08(2)--i.e., the standard of living established during the marriage and the duration of the marriage--required that he equalize the incomes of the parties, not simply as a discretionary matter but as a legally obligatory one. In other words, once the trial court determined this to be a long term marriage, he automatically divided the incomes so as to allow each party the nearest equivalent to the marital standard of living. This approach completely ignores other statutory factors such as the ages and physical conditions of the parties, and the contribution of each party to the marriage. ¹ While Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), allowed broad discretion to the trial judge in domestic matters, it specifically did not require the equalization of the financial position of the parties. See Canakaris at 1204. The Florida Legislature has now recognized factors other than the two utilized herein by the trial court, and has required that "all relevant economic factors" be considered and that findings of fact be made in regard thereto. The trial judge in this case did not do that. We find, therefore, that the court erred in its application of the law by failing to consider all of the mandated factors in determining the alimony issue and compounded that error by failing to make findings of fact relative to all of these said factors. ²

As great as the trial court's discretion is, it is not given the discretion to disregard the law.

In order to properly review orders of the trial judge, appellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule ... the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law.

Canakaris at 1202.

Although the effective date of the amendment to section 61.08(1) (which specifically requires the findings of fact) was July 1, 1991, it applies to this case since the final judgment was not rendered until August, 1991. Fogg v. Southeast Bank, N.A., 473 So.2d 1352 (Fla. 4th DCA 1985). And since the amendment is primarily intended to make appellate review more meaningful, the appellate court can insist on its application whether or not the parties raise it as an issue on appeal. Both justice and reason compel the appellate courts to insist that these findings of fact accompany any alimony decision--whether alimony is granted or denied.

The essence of justice is that all parties, regardless of gender, race or religion, under similar circumstances, receive substantially the same result in litigation before our courts. This concept of comparable fairness can be achieved only if the appellate court can determine the factors (and the weight given those factors) by the various courts within our jurisdiction. We can do this only if trial courts make the proper findings of fact as required by law.

Even though Canakaris is normally cited for the proposition that the trial court has almost unlimited discretion in domestic matters, it also strongly supports the proposition that the appellate courts must be concerned with comparable fairness.

The discretionary power that is exercised by a trial judge is not, however, without limitation, and both appellate and trial judges should recognize the concern which arises from substantial disparities in domestic judgments resulting from basically similar factual circumstances. [Emphasis added].

* * * * * *

Judges dealing with cases essentially alike should reach the same result. Different results reached from substantially the same facts comport with neither logic nor reasonableness.

Canakaris at 1203.

The findings of fact requirement serves two purposes--both important. First, it requires the judge to determine what the "facts" of the case actually are. Too often appellate judges cite the testimony of one party or the other as the facts of the case. Testimony is not fact until the trial judge says it is fact. In this case, for example, there is testimony that the wife quit her job at Pan American to be with her husband and strengthen the marriage; there is also testimony that she quit her job simply because she hated the work. The trial judge made no finding and, therefore, neither position is a "fact."

The same is true concerning the wife's contribution to the husband's education. There is testimony that the wife paid the rent and utilities on the couple's apartment during the last two quarters of the husband's stay in school. There is also testimony that the husband's parents paid his tuition and books and made other financial contributions to his living expenses and that he worked part-time during this period. The court made no finding as to what the wife's contribution was and how it should affect the issue of alimony, so there is no "fact" on this important issue.

The lack of findings also proves problematic on the issue of what interpretation should be given the wife's testimony regarding her reason for taking a leave of absence from Pan American at the time of the parties' second marriage. Did she merely want to stay home (and was able to take advantage of a leave of absence conveniently being offered by Pan American at that time), or did she make a career sacrifice to benefit the new marriage? We don't know because the trial court didn't tell us.

The second purpose of the findings of fact is even more important. It permits a comparable fairness analysis.

Let's compare this case, for example, with our previous decision in Bujarski v. Bujarski, 530 So.2d 953 (Fla. 5th DCA 1988). First, we must consider the comparable "facts." ³ The Kennedys were married sixteen years--eight years on either side of a short divorce. The Bujarskis were married 29 years. Mrs. Kennedy worked, for all practical purposes, throughout the marriage. Mrs. Bujarski was a homemaker and student for the greater part of the marriage. Mrs. Kennedy made minimal, at best, contributions to the education of her husband; Mr. Bujarski, through his income, was the sole support of Mrs. Bujarski while she received both a bachelor's and a master's degree. It appears, therefore, that under the section 61.08(2) factors, an equal division of income in Bujarski would be far more appropriate than in Kennedy.

Not so. In Bujarski, at the time of the divorce, Mr. Bujarski who had entered the service as an enlisted man and retired as a commander, was in college and living on his $31,000 annual pension. Mrs. Bujarski was working for AT & T and earning $43,000. The trial court awarded Mrs. Bujarski $200 per month alimony, augmenting her income to over $45,000 and reducing Mr. Bujarski's income to less than $29,000. It was Mrs. Bujarski that appealed, claiming as error the fact that the court treated Mr. Bujarski's pension as a source of income rather than as a marital asset. This, of course, is permitted. See Diffenderfer v. Diffenderfer, 491 So.2d 265 (Fla.1986). It was Mrs. Bujarski's position that she should receive one-half of Mr. Bujarski's pension which would then give her an income of $58,000 and Mr. Bujarski an income of $15,500. The trial judge would not (nor would any but one of this court's en banc panel) approve this result. But even so, instead of dividing the income, the trial court in Bujarski required the spouse receiving the lower income to pay alimony to the one receiving a substantially greater income. ⁴

The diametric difference results in Bujarski and the present case can only be explained by the luck of the draw of the trial judge or the gender of the higher earning spouse. Neither factor, under a just legal system, should play any role in the outcome of the case. Requiring specific findings of fact will minimize the effect of these irrelevant factors.

It appears that the dissents' criticism of the doctrine of comparable fairness is that it has "a subversive effect on Canakaris." That is, if the appellate panel finds that any specific alimony award is unfair when compared to the range of other awards based on similar facts, it could find that the trial court had abused its discretion. But the court (and all other appellate courts) have been doing something similar for years under the concept that "the wife has been shortchanged." Rey v. Rey, 598 So.2d 141 (Fla. 5th DCA 1992); Decker v. Decker, 534 So.2d 844 (Fla. 5th DCA 1988); Pirino v. Pirino, 525 So.2d 1028 (Fla. 5th DCA 1988); Overstreet v. Overstreet, 513 So.2d 1277 (Fla. 5th DCA 1987); Marsh v. Marsh, 489 So.2d 68 (Fla. 5th DCA 1986); Tuller v. Tuller, 469 So.2d 212 (Fla. 5th DCA 1985); Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983); DiPrima v. DiPrima, 435 So.2d 876 (Fla. 5th DCA 1983); Sanders v. Sanders, 435 So.2d 372 (Fla. 5th DCA 1983). This concept has only been applied in favor of the wife and the only limitation on its application is that a majority of the panel--based on whatever standard they choose--find that the trial court did not, in the exercise of discretion, award sufficient property or alimony.

The doctrine of comparable fairness, on the other hand, is intended to protect both spouses from an unreasonable result and limits the ability of the appellate court...