Leonardis v. Leonardis

• Decision Date: 09 April 2010
• Docket Number: No. 4D08-2310.,4D08-2310.
• Citation: 30 So.3d 568
• Parties: Ann Marie LEONARDIS, Appellant, v. Antonio LEONARDIS, Appellee.
• Court: Florida District Court of Appeals

30 So.3d 568

Ann Marie LEONARDIS, Appellant, v. Antonio LEONARDIS, Appellee.

No. 4D08-2310.

District Court of Appeal of Florida, Fourth District.

February 17, 2010.

Rehearing Denied April 9, 2010.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellant.

Thomas H. Dougherty of Thomas H. Dougherty, P.A., Palm Beach Gardens, for appellee.

WARNER, J.

The wife appeals a final judgment of dissolution of marriage in which the court awarded alimony to the husband, ordered the marital home to be sold once the youngest child reaches the age of majority and provided the wife with an option to buy out the husband's interest in the marital home. We affirm the award of alimony as no abuse of discretion in the award has been shown. However, we reverse the court's disposition of the marital home because the use of the date of filing as the valuation date constitutes an abuse of discretion in this case, and the provisions setting the value of the husband's interest do not correctly reflect the intended equitable distribution, should the wife not exercise her option to buy out the husband's interest.

The wife and husband married in 1986 and have three children. The wife works as a paralegal for a law firm. The husband, who has little education, worked as a cook at the beginning of the marriage. Later, he and the wife opened a deli, which continues to be his main source of income. At the time of the dissolution, the wife earned approximately $2,000 more per month than the husband. The trial court carefully considered the factors for awarding alimony under section 61.08, Florida Statutes. Based upon the wife's greater earnings and earning ability, as well as the husband's limited education and prospects, the trial court awarded the husband permanent alimony of $500 per month.

The wife claims that the trial court erred in awarding alimony because her expenses already exceed her income, even though she concedes the husband's need for alimony. Alimony awards are reviewed using an abuse of discretion standard. Costa v. Costa, 951 So.2d 924, 925 (Fla. 4th DCA 2007). "If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). "In determining whether to award permanent periodic alimony, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments." Segall v. Segall, 708 So.2d 983, 987 (Fla. 4th DCA 1998). Furthermore, the trial court is required to consider the statutory factors set forth in section 61.08(2), Florida Statutes. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005).

The trial court rejected the wife's contention that she had an inability to pay alimony, finding that some of her expenses were inflated and some could be eliminated. Indeed, the wife's own testimony, in which she acknowledged a significant increase in her expenses since the filing of the divorce, supports the trial court's findings. In addition, for other expenses related to child support, the trial court also noted that the wife would be receiving child support from the husband. Under the circumstances, we cannot say that the trial court abused its discretion. We affirm the award of alimony.

With respect to the trial court's valuation and disposition of the marital residence, the final judgment does not appear to effectuate what the trial court intended in its oral rulings. As written, the judgment must be reversed.

The court valued the residence at $320,000 at the date of filing of the petition for dissolution, with equity of $48,000 after deduction of the outstanding mortgage balance of $272,000. The court required that the marital home be sold when the youngest child reaches eighteen years of age, but permitted the wife to buy out the husband's $24,000 share of the equity within ninety days of October 31, 2007, the date of the final hearing.¹ The final judgment contained additional provisions, however, stating that the husband would receive his $24,000 interest in the house at the time of sale. In addition, if the wife did not exercise her 90-day buy-out option, she would receive credit at the time of sale for the husband's share of mortgage payments, taxes, insurance, and extraordinary repair expenses.

The wife argues that the court improperly valued the property as of the date of the filing of the petition for dissolution, because the property had declined in value substantially since the date of the filing of the petition. On this record, we are compelled to agree. Scant evidence was presented as to the value of the home. The wife testified that fifteen months prior to the final hearing, the house was appraised at $357,000. However, since that time, property values had decreased 20-30% in Palm Beach County. She also offered in evidence the property appraiser's valuation of the home at $267,000 for the year 2007. In contrast, the husband testified that he believed that the property was worth more, because the parties had recently completed a pool addition and other improvements to the property which, despite any decline in property values, made it still worth at least $55,000 more than the wife's valuation. In fact, no one requested the court to value the property as of the date of the filing of the petition, nor did the parties offer testimony as to the value of the property as of that date. However, the court's valuation of the property as of the date of the filing of the petition at $320,000 approximates the husband's valuation of the home as of the date of the final hearing.

The standard of review for a trial court's selection of a valuation date for a marital asset is abuse of discretion. See Byers v. Byers, 910 So.2d 336, 344 (Fla. 4th DCA 2005). Section 61.075(6), Florida Statutes (2006), provides that the date of filing of the petition for dissolution is...