Marshall v. Marshall

• Decision Date: 09 March 2007
• Docket Number: No. 5D06-967.,5D06-967.
• Citation: 953 So.2d 23
• Parties: James T. MARSHALL, Appellant/Cross-Appellee, v. Betty Lou MARSHALL, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

953 So.2d 23

James T. MARSHALL, Appellant/Cross-Appellee, v. Betty Lou MARSHALL, Appellee/Cross-Appellant.

No. 5D06-967.

District Court of Appeal of Florida, Fifth District.

March 9, 2007.

Rehearing Denied April 3, 2007.

Elise A. Singer, Melbourne, for Appellant/Cross Appellee.

Judith E. Atkin, Melbourne, for Appellee/Cross-Appellant.

ORFINGER, J.

James T. Marshall (the "former husband") appeals a final judgment dissolving his marriage to Betty Lou Marshall (the "former wife"). The former husband contends that the trial court erred in awarding $1 and exclusive use and possession of the marital home as permanent alimony to the former wife. Further, he claims that although the court found that he was totally disabled and relies on his retirement pay as his sole income, it ordered that he pay the former wife one-half of his retirement income, awarded his one-half share of the former wife's 401k account as lump sum alimony, and required him to maintain a life insurance policy, which named his adult children as beneficiaries. Because there is no trial transcript, our review is limited to errors that may appear on the face of the amended final judgment. See Mayfield v. Mayfield, 929 So.2d 671, 672 (Fla. 5th DCA 2006). In the absence of an adequate transcript on appeal, a judgment that is not fundamentally erroneous must be affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).¹

A trial court has considerable discretion in determining an award of alimony. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Ondrejack v. Ondrejack, 839 So.2d 867 (Fla. 4th DCA 2003). Permanent alimony is appropriate where the requesting spouse cannot support herself in accordance with the lifestyle of the marriage. See Bucknam v. Shelton, 849 So.2d 1204, 1206 (Fla. 5th DCA 2003). However, before a court can determine the proper amount of an award of alimony, the court must first determine the actual need and the ability to pay. Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003).

Based on the facts found by the trial court, we conclude that the court did not abuse its discretion in its award of $1 permanent periodic alimony to the former wife. This amount accommodated the former husband's claim of disability at the time of trial but leaves open the possibility of increasing the former wife's alimony in the event that the former husband's ability to pay changes. See Ellis v. Ellis, 699 So.2d 280 (Fla. 5th DCA 1997) (affirming nominal award of alimony), disapproved on other grounds by Acker v. Acker, 904 So.2d 384 (Fla.2005).

In addition, as permanent alimony, the court granted the former wife exclusive possession of the marital home, formerly held as tenants by the entirety, until her death or remarriage. This was error. In Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980), the supreme court held that an award of exclusive possession of the marital home is proper where such award is directly connected to the obligation to pay support or is temporarily necessary to prevent reduction in the value of the subject property. However, the grant of exclusive possession of the marital home must serve some "special purpose." The critical question is whether the award is equitable and just given the nature of the cause. Id.; Arze v. Sadough-Arze, 789 So.2d 1141 (Fla. 4th DCA 2001); Todd v. Todd, 734 So.2d 537 (Fla. 1st DCA 1999).

Here, the parties have no minor children. The parties' incomes are relatively the same, and, thus, there is no great disparity in the financial circumstances of the parties. The former husband is disabled while the former wife is able bodied, has stable income and ready employability, and they have very few assets. It appears that the effect of awarding the marital home to the former wife until her death or remarriage was to force the husband from his modest economic status to a state of relative impoverishment. Based on these facts, this Court cannot sustain the trial court's award of exclusive possession of the home to the former wife until her death or remarriage. These circumstances mandate a partition sale of the marital home. See Boynton v. Boynton, 636 So.2d 53, 55 (Fla. 2d DCA 1994).

Moreover, as the former husband points out, the parties entered into a temporary property/asset settlement agreement, which was approved by the trial court. In that agreement, the parties agreed that "they [would] sell the home and divide the profits from the sale equally." Yet, in its final judgment, the court awarded the former wife exclusive use and possession of the marital home until she dies or remarries, contrary to the terms of the agreement. The trial court offered no reason for its failure to observe the parties' agreement regarding the marital home. Moreover, no request to set aside the agreement appears in the record, and the court failed to address the impact of the agreement in the final judgment.

Lastly, the trial court erred in distributing the marital assets unequally, ultimately favoring the former wife. Section 61.075(1), Florida Statutes (2006), requires the trial court to distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur. However, where a justification is shown, a trial court may make an unequal distribution. In making an unequal distribution "a trial judge must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be `shortchanged.'" Canakaris, 382 So.2d at 1204.

Under the trial court's equitable distribution scheme, the former wife was awarded a majority of the assets. Yet apart from finding that the former wife was living at poverty level (an interesting finding in light of its later finding that the former wife had given the parties' adult daughter $13,800 in marital funds without the former husband's knowledge), the final judgment fails to identify that factor, or any other factor as a justification for an unequal distribution. A court must provide a legally sufficient factual basis for its unequal distribution of marital assets. Carr v. Carr, 779 So.2d 311, 312 (Fla. 2d DCA 1999); Harreld v. Harreld, 682 So.2d 635, 636 (Fla. 2d DCA 1996). We conclude that the trial court erred by awarding the former wife her entire 401k account as lump sum alimony, exclusive possession of the marital home until her death or remarriage as permanent alimony, and one-half of the former husband's retirement income as well as survivor...