Lewis v. Lewis, 93-1035

• Decision Date: 20 December 1995
• Docket Number: No. 93-1035,93-1035
• Citation: 665 So.2d 322
• Parties: 21 Fla. L. Weekly D43 John LEWIS, Appellant, v. Ester LEWIS, Appellee.
• Court: Florida District Court of Appeals

Page 322

665 So.2d 322

21 Fla. L. Weekly D43

John LEWIS, Appellant, v. Ester LEWIS, Appellee.

No. 93-1035.

District Court of Appeal of Florida,

Fourth District.

Dec. 20, 1995.

Joseph S. Geller of Geller, Geller, Burton & Garfinkel, P.A., Dania, for appellant.

Darryl S. Schreiber of Schreiber, Schreiber & Schreiber, Hollywood, for appellee.

KROLL, KATHLEEN J., Associate Judge.

In his appeal from a final judgment of dissolution of marriage, John Lewis claims the trial court erred in (1) identifying, valuing and distributing the assets and liabilities of the parties; (2) awarding to the wife his share of the equity in the marital home; (3) awarding the wife rehabilitative alimony; (4) failing to impute income to the wife in determining the child support amounts; (5) setting a visitation schedule with the minor children; and (6) awarding the wife attorney's fees and costs. We reverse the award of attorney's fees because the trial court made insufficient findings to afford proper appellate review of the attorney's fees issue. We otherwise affirm the final judgment of dissolution in all respects.

The parties were married on August 13, 1977, and the wife filed a petition for dissolution of marriage on February 25, 1992. They had two children during the marriage, ages five and eight as of the trial. At that time, the husband earned $40,000 annually and the wife was not employed. She had worked almost continuously throughout the marriage, with the exception of two years following the birth of her first child, but was laid off in 1989. The wife had been making approximately $18,000 per year as a trained bookkeeper. At the time of trial, she had been looking for employment.

The major marital assets of the parties were the marital home, a Charles Schwab account, the husband's pension and a thrift account. Concerning the background on the Charles Schwab account, the trial court found that in January 1991, the husband was awarded $67,058.25 on a work-related claim which was a marital asset. He deposited the money into a Charles Schwab account under his mother's name. The trial court found in its final judgment that $54,000 in marital assets, in the form of stocks, remained in the account as of February 25, 1992. The trial court had issued an order on that date enjoining the husband from disposing of any marital property or assets. The husband admitted he depleted the account after the order was issued, giving various and sundry explanations for the consumption of the funds. At the commencement of trial, less than $1000 remained in the Schwab account.

The trial court then awarded the husband's interest in the house to the wife, resulting in the wife receiving full right and title to the marital home. In its order on the husband's motion for clarification, the trial court emphasized that the wife had been given the husband's interest in the marital home in satisfaction of her claim to the Schwab account, the pension and the thrift account.

The record supports the trial court's valuation and distribution of assets and liabilities. The husband wrongfully, intentionally and in defiance of the trial court's order dissipated the Schwab account. Under these circumstances, the trial court had the discretion to affect an unequal distribution pursuant to section 61.052, Florida Statutes (1993). Such discretion would allow the trial court to assign the parties' liabilities solely to the husband. Notwithstanding this discretion to distribute the assets unequally, the record supports the conclusion that the trial court achieved close to an equal distribution of the marital assets and liabilities.

Additionally, the trial court ordered the husband to pay two years of rehabilitative alimony at $350 monthly. The trial court did not err when it awarded the wife this rehabilitative alimony. In Murray v. Murray, 374 So.2d 622, 623 (Fla. 4th DCA 1979), this court stated Rehabilitative alimony is designed to aid a person to regain the ability for self-support similar to that which previously existed or would have existed except for the marriage of the parties.

In this case, the wife had a high school education and some vocational training in bookkeeping. She had earned between $18,000 and $20,000 per year while working, compared to the husband's annual income of $40,000. Although not employed at trial, the wife was making attempts to find a job which would pay sufficient income to provide for herself and her minor children. The record supports a finding of disparate financial conditions between the husband and the wife. See Sisson v. Sisson, 336 So.2d 1129 (Fla.1976). We believe that as a court we should not blindly follow cases attaching a restrictive definition to rehabilitative alimony without giving deference to the realities of life nor without doing that which is equitable to the parties. See Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA), rev. denied, 519 So.2d 986 (Fla.1987); cf. Longo v. Longo, 533 So.2d 791 (Fla. 4th DCA 1988) (holding rehabilitative alimony not warranted under these particular facts "to do equity between the parties or to provide a 'transition period' for the wife" unlike the situation in Bridges where rehabilitative alimony was properly awarded for those reasons). The wife had not worked...