Lostaglio v. Lostaglio

• Decision Date: 16 September 2016
• Docket Number: No. 5D14–3494.,5D14–3494.
• Citation: 199 So.3d 560
• Parties: Anthony J. LOSTAGLIO, Appellant/Cross–Appellee, v. Sharon N. LOSTAGLIO, Appellee/Cross–Appellant.
• Court: Florida District Court of Appeals

199 So.3d 560

Anthony J. LOSTAGLIO, Appellant/Cross–Appellee,
v.
Sharon N. LOSTAGLIO, Appellee/Cross–Appellant.

No. 5D14–3494.

District Court of Appeal of Florida, Fifth District.

Sept. 16, 2016.

Theodore R. Doran and Carol A. Yoon, of Doran, Sims, Wolfe & Ciocchetti, Daytona Beach, for Appellant/Cross–Appelle.

Horace Smith, Jr. and Sheila M. Ennis, of Smith Bigman Brock, Daytona Beach, for Appellee/Cross–Appellant.

BERGER, J.

Anthony Lostaglio (Husband) appeals the final judgment of dissolution, challenging portions of the equitable distribution and the award of durational alimony. Sharon Lostaglio (Wife) cross-appeals, challenging the equitable distribution scheme and alimony award. We affirm the dissolution of the parties' marriage and the award of durational alimony but reverse and remand for the trial court to recalculate the equitable distribution and reconsider the amount of durational alimony awarded to Wife.

Husband and Wife married on October 16, 1999. On March 8, 2011, Husband filed for divorce. They were married for eleven years and five months, during which Wife had an affair. Throughout their moderate-term marriage, Husband and Wife enjoyed a high standard of living.

The two met while they were both employed with IBM. At the time, Wife earned between $40,000 and $45,000 annually, while also receiving workers' compensation benefits in the amount of $520 per month. When Husband and Wife got married, the parties agreed that Wife would no longer work due to her health issues.¹ She has remained unemployed for fourteen years. Meanwhile, Husband has continued his career as a high-ranking executive with IBM and earns in excess of $450,000 per year.

In 2008, Wife, at the direction of Husband, settled her workers' compensation claim with IBM. The settlement money was then deposited into the parties' joint account to be used in the construction of the marital home located on the Intracoastal Waterway in Palm Coast, Florida. The parties put $500,000 cash down on the home and spent $1.8 million to build it. At the time Husband filed his petition for dissolution, the house was valued at $1,150,000, with a mortgage debt of $1,349,000.²

199 So.3d 562

Wife brought a number of premarital assets to the marriage, including a home, investment accounts, an IRA account that was funded in part by a rollover from a 401(k) plan in the amount of $130,000, an annuity worth approximately $90,000, and the workers' compensation claim. These assets, valued at more than $400,000, were liquidated and used to purchase the parties' marital homes in North Carolina and Palm Coast.³

Husband consistently showed a surplus on his financial affidavits. By the time of trial, his monthly income had increased from $18,670 in July 2013 to $20,330.59 in April 2014, not including stock options in excess of $18,246 per month. While the case was pending, Husband exercised his stock options to pay down roughly $90,000 of the $135,000 equity line of credit, and to pay off Wife's credit card debt in the amount of $48,000. He also used the money to fund the parties' standard of living, pay household expenses, marital debt, and other expenses that did not exist prior to separation, such as temporary alimony and attorney's fees. There was no evidence that either party dissipated assets.

In September 2011, the parties stipulated to the following:

1. The parties have been residing together and all of the Wife's needs have been provided for by the Husband. Beginning on September 8, 2011, Wife shall vacate the marital home and take her clothing and personal items.

2. In light of the parties [sic] separation, Husband shall pay temporary alimony to the Wife in the amount of $5,300.00 per month beginning September 16, 2011, and continuing on the sixteenth day of each and every month thereafter, until further order of the Court.

Accordingly, Wife began receiving $5300 in temporary alimony beginning September 16, 2011.

At trial, Wife testified that the $5300 in temporary alimony did not meet her ongoing needs, and that she had a deficit each month. This deficit included Wife's income tax liability on the temporary alimony in the amount of $658.58 per month, as well as monthly health insurance costs between $500 and $600. According to Wife's financial affidavit, her basic needs totaled $7035 per month. In order to meet the standard of living she enjoyed during the marriage and to cover her health insurance costs, Wife claimed that her post-dissolution needs would be $9900 per month. Wife testified that her monthly deficit would increase to $5528 per month if she lived in a manner approaching the marital standard of living. Husband, however, enjoys a surplus each month ranging from $3000 to $7000, after paying monthly expenses of $16,000 to $22,000.

The trial court ultimately awarded Wife her portions of Husband's 401(k), valued at approximately $300,000, and her share of Husband's pension. In the end, she received an unequal distribution in the amount of $34,500. Wife was also awarded durational alimony in the amount of $5300 per month for ten years to begin on June 25, 2014, the date of the final judgment. Although the trial court indicated that it had considered the “appropriate tax treatment” of the alimony award, it did not expressly provide that the alimony would be taxable to Wife and deductible to Husband, and it...