Layeni v. Layeni

• Citation: 843 So.2d 295
• Decision Date: 28 February 2003
• Docket Number: No. 5D01-3376.,5D01-3376.
• Parties: Mary Lou LAYENI, Appellant/Cross-Appellee, v. Kehinde A. LAYENI, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

843 So.2d 295

Mary Lou LAYENI, Appellant/Cross-Appellee, v. Kehinde A. LAYENI, Appellee/Cross-Appellant.

No. 5D01-3376.

District Court of Appeal of Florida, Fifth District.

February 28, 2003.

Rehearing Denied April 23, 2003.

Marcia K. Lippincott of Marcia K. Lippincott, P. A., Lake Mary, for Appellant/Cross-Appellee.

Shannon McLin Carlyle and Gilbert S. Goshorn, Jr. of The Carlyle Appellate Law Firm, The Villages, for Appellee/Cross-Appellant.

ORFINGER, J.

The former wife, Mary Lou Layeni, appeals the final judgment of dissolution of marriage terminating her marriage to Kehinde A. Layeni, the former husband. She argues that the trial judge erred by denying her request for permanent and rehabilitative alimony and by failing to properly value the former husband's interest in his medical practice. She further contends the trial court erred in calculating the former husband's income available for child or spousal support. On cross-appeal, the former husband alleges the trial court erred by requiring him to maintain a life insurance policy naming the former wife as the beneficiary. We affirm in part and reverse in part. The parties were married for just over seven years. During the course of the marriage, two children were born. At the time of the final hearing, the former husband was a forty-two-year-old medical doctor specializing in cardiology. He worked in a professional association with two other doctors during most of the marriage. The former wife, forty-four years old at the time of the final hearing, did not work outside the home during the marriage. The parties enjoyed an upper-middle-class lifestyle with average gross earnings of approximately $375,000 per year. Throughout the parties' marriage, the former wife was a full-time homemaker, devoting her efforts to caring for the family. Before the marriage, the former wife worked in New York as a cardiology technician earning $40,000 per year. However, due in part to one of the children's special needs and the former wife's impaired health as a result of several serious illnesses, her earning potential was imputed to be only $17,000 per year.

EQUITABLE DISTRIBUTION

We first consider whether the trial court erred in determining the value of the former husband's medical practice. The parties' disagreement turns on whether the former husband's net accounts receivable should be included in calculating the value of his medical practice. Relying on Leone v. Leone, 577 So.2d 587 (Fla. 3d DCA 1990), the trial judge denied the former wife an equitable interest in the accounts receivable, concluding that it was from this income that the former husband would be required to make his support payments. We find the trial court erred in concluding that, as a matter of law, accounts receivable cannot be included in the valuation of marital assets. Staman v. Staman, 622 So.2d 1147 (Fla. 1st DCA 1993); Spillert v. Spillert, 564 So.2d 1146, 1148 (Fla. 1st DCA 1990); Carr v. Carr, 522 So.2d 880, 885 (Fla. 1st DCA 1988) (finding error in trial court's exclusion from marital assets of the tangible assets of husband's medical practice, including accounts receivable). We believe the holding in Leone was based on its unique facts. On remand, the trial court should include the net value of the former husband's accounts receivable in determining the value of his medical practice so that the trial court can distribute the assets in an equitable manner, given the overall division of marital property. See § 61.075, Fla. Stat. (1998).

THE CALCULATION OF THE FORMER HUSBAND'S INCOME

The parties agree that the trial court erred by failing to consider automobile and insurance benefits paid on behalf of the former husband by his medical practice. Those payments, totaling $2,577.95 monthly, and representing automobile lease payments and insurance and health, dental, and life insurance, must be included as income to the former husband on remand. See § 61.30(2)(a)(13), Fla. Stat. (1998); Cozier v. Cozier, 819 So.2d 834, 836 (Fla. 2d DCA 2002) (although the value of family medical insurance provided by the husband's employment and family business was properly added to the husband's gross income as an employment benefit for the purpose of awarding alimony and child support, the trial court erred by failing to allow a corresponding deduction for the amount of the insurance).

PERMANENT ALIMONY

The former wife next argues that the trial court's decision to deny permanent alimony was an abuse of the trial court's discretion. While if permitted to reweigh the evidence we might have reached a different result on the issue of permanent alimony, we cannot conclude that the trial court abused its broad discretion in denying an award of permanent alimony to the former wife in this relatively short-term marriage. As we said in Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001):

In a dissolution proceeding, the trial court possess broad discretion to do equity between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980); Doyle v. Doyle, 789 So.2d 499, 501 (Fla. 5th DCA 2001). The standard of review is whether the trial court abused its discretion. Canakaris, 382 So.2d at 1202-03. In reviewing a dissolution judgment, this court looks at the judgment as a whole in determining whether the trial court abused its discretion. Hamlet v. Hamlet, 583 So.2d 654, 657 (Fla.1991). "It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence." Deakyne v. Deakyne, 460 So.2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So.2d 203 (Fla. 1983)).

We do, however, reach an opposite conclusion regarding the trial court's denial of rehabilitative alimony to the former wife because we find the trial court misapplied the law.

REHABILITATIVE ALIMONY

The former wife argues that the trial court denied her request for rehabilitative alimony because she failed to present a written rehabilitative plan at the dissolution hearing. The former wife asserts that through her testimony, she presented an oral rehabilitative plan, and argues that this is sufficient.

A review of the record shows that the former wife testified that although she attempted to become employed as a cardiology technician, her efforts were unsuccessful. Therefore, she decided to go to college to become a medical records coder. The former wife testified in detail regarding her plans to attend school to pursue a career as a medical records coder, at a total cost of approximately $11,840, excluding spousal support during the rehabilitative period.

The former wife also offered the testimony of Ede Slovan, the coordinator of the New Directions program at Seminole County Community College.¹ Slovan, the former wife's counselor at the college, testified that the former wife took an eight-week remedial course, and then enrolled in some college courses. Slovan testified that the former wife did poorly on several tests administered by the program, particularly in her ability to read, write, and understand the English language. As a result, Slovan recommended that the former wife take certain remedial classes. Slovan testified that according to the school's records, the former wife usually takes one to two classes per semester, and had completed her remedial classes. Slovan further testified that the former wife had begun taking college credit classes, and was taking them though the summer.

The former wife testified that she enrolls in one course per semester because her impaired health and the special needs of her children would not permit a more demanding schedule. The former wife's therapist also testified that the former wife has made a good faith effort at her schooling, but that it has been difficult for her. He believed that the former wife was not capable of handling full-time employment in addition to her duties and responsibilities as a full-time mother.

The former husband argues that the trial court correctly denied rehabilitative alimony because the former wife failed to establish any rehabilitative plan, much less one in writing, as required. "The principal purpose of awarding rehabilitative alimony is to provide funds to the requesting spouse so he or she can establish the capacity for self-support, either through the redevelopment of previous skills or the provision of training necessary to develop potential supportive skills." Hill v. Hooten, 776 So.2d 1004, 1006 (Fla. 5th DCA 2001). Rehabilitative alimony cannot be awarded absent a rehabilitative plan. Fullerton v. Fullerton, 709 So.2d 162, 164 (Fla. 5th DCA 1998). In Brock v. Brock, 682 So.2d 682 (Fla. 5th DCA 1996), this court, in setting forth the requirement of a written rehabilitative plan, said:

Rehabilitative alimony is for a time certain or until a specific goal has been met. Further, courts have held that a viable rehabilitative plan must be presented at the time the request for rehabilitative alimony is made. Since rehabilitative alimony is a projection based upon assumptions and probabilities, the plan must be in writing in the event the plan or goal is not achieved.

Id. at 683 (internal citations omitted). See Calderon v. Calderon, 730 So.2d 400, 402 (Fla. 5th DCA 1999)

. However, we have also recognized that a rehabilitative plan may be orally presented. See Beasley v. Beasley, 717 So.2d 208, 209 (Fla. 5th DCA 1998) (finding it was error to award rehabilitative alimony where wife did not present written or oral rehabilitative plan); see also Bryan v. Bryan, 765 So.2d 829 (Fla. 1st DCA 2000) (same).

An award of rehabilitative alimony should not turn on whether the rehabilitative plan is oral or written. Instead, such an award must be based on whether an adequate and credible rehabilitative plan is presented to the court, assuming that the requesting party also...