McSwigan v. McSwigan

• Decision Date: 02 May 1984
• Docket Number: No. 83-450,83-450
• Citation: McSwigan v. McSwigan, 450 So.2d 284 (Fla. App. 1984)
• Parties: Maureen M. McSWIGAN, Appellant, v. James A. McSWIGAN, Appellee.
• Writing for the Court: HERSEY
• Court: Florida District Court of Appeals

Page 284

450 So.2d 284

Maureen M. McSWIGAN, Appellant, v. James A. McSWIGAN, Appellee.

No. 83-450.

District Court of Appeal of Florida Fourth District.

May 2, 1984.

Rehearing Denied May 31, 1984.

Jane Kreusler-Walsh and Larry Klein, West Palm Beach, for appellant.

William H. Pruitt of Pruitt & Pruitt, West Palm Beach, for appellee.

HERSEY, Judge.

Maureen M. McSwigan appeals from a final judgment in dissolution proceedings on the basis that she has been short-changed. We agree and reverse.

THE MARRIAGE

The parties were married on June 30, 1962. At the time of the final hearing the marriage was of twenty years duration and had produced three children, two of whom remained minors. Custody was split by agreement and modest child support, including temporary exclusive possession of the marital residence, was provided.

THE WIFE

Maureen M. McSwigan at the time of the marriage and for a short period of time thereafter worked as a secretary. She then became exclusively a mother, wife and homemaker. She subsequently went back to school and has been working toward her Master's Degree which will permit her to enter the teaching profession. Thus, at the time of the final hearing she had not worked for twenty years but had the potential, upon completing her training, of earning $10,000 to $12,000 per year as a teacher. She is forty-two years old and in good health except for a complaint of cardiac arrhythmia.

THE HUSBAND

James A. McSwigan, forty-six years old and in good health, is a successful practicing attorney. He has earned in excess of $90,000 per year in Ohio but has not yet returned to that level in Florida, earning most recently approximately $60,000 per year as an associate. He obviously has the potential to substantially increase his income.

ASSETS AND LIABILITIES

The indebtedness of the parties was allocated by the final judgment as follows: the husband to repay $9,196; the wife to repay $4,500; the parties jointly to repay $2,460. The marital home has an equity value of approximately $70,000. Upon termination of the wife's exclusive possession, the house will be sold and the proceeds divided between the parties, who are jointly responsible for expenses except that the wife pays for ordinary maintenance.

During the marriage the husband, with a partner, acquired interest in several properties in Ohio. As to those properties generally the court found: "The value of these properties is unascertainable based upon the evidence presented to the court; for, in the depressed real estate market and economy where they are situate, they cannot be sold, nor are they self-sustaining." As to one of the four Ohio properties there was an agreement between the husband and his partner, placed in evidence, providing for a mutual right of first refusal and, upon the death of either partner, an obligation on the survivor to purchase the interest of the deceased for $5,000.

The court determined that neither party had established a special equity in any property of the other.

THE WIFE'S SHARE

Child support, including temporary exclusive possession of the marital home, is not in issue. The final judgment gives the wife a one-half interest in the husband's one-half interest in the agreement pertaining to one of the four Ohio properties (not an interest in the property itself) together with rehabilitative alimony in the amount of $1,000 per month for eighteen months. She is required to assume the sole liability for $4,500 in debts and $1,230 of the joint obligations or a total of $5,730. Of her rehabilitative alimony, after debts, she will therefore be able to retain $12,270 ($18,000 less $5,730). The wife is also to receive assistance with the payment of her attorney's fees and costs.

COMPARISON

Upon termination of the marital partnership the husband exits with an obligation to pay certain debts, child support, and rehabilitative alimony in the amount of $18,000. He has an income of $60,000 with the potential of substantially increasing his earnings in the years to come. The wife, after twenty years of contribution to the marriage in her role as wife, mother and homemaker, receives short-term rehabilitative alimony and an interest in a nebulous agreement which may return her zero dollars. She has been out of the work force for twenty years, is unemployed with the prospect, if she is fortunate and remains in good health, of obtaining a teaching position with an annual income between $10,000 and $12,000, roughly one-sixth of the husband's present earnings.

THE LAW

The concept of marriage as a partnership entitling each of the partners, upon termination, to an equitable share of partnership assets, had its most eloquent beginnings in the case of Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cited and quoted with approval in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In the now famous words of Judge Rawls:

How shall the material wealth of a marriage which is being dissolved be divided when one partner, the wife, has contributed her time to the marital home and children of the parties while the husband has pursued the accumulation of material goods. The evolution of the law of alimony that we have reviewed in length shows that today the contributions of each party to the accumulation of material assets must be considered in dissolving the marital partnership. Either spouse may contribute either by working in the market place or by working as a homemaker. The fact that in one marital venture a spouse is gainfully employed in the market place and pays a housekeeper to rear the children and keep house is not distinguishable from the spouse who devotes his or her full time to the profession of homemaker. The primary factual circumstance is each spouse's contribution to the marital partnership. In the case sub judice, the wife has been shortchanged. The wife has not been adequately compensated for the contribution that she made as a fulltime mother and homemaker to the equal partnership marriage. We hold that the trial court abused its discretion in awarding the wife a pittance of the material assets accumulated in the husband's name during 21 years. In so holding, we emphasize even though the cited authorities on the subject speak of "equal partners" and complete equality as partners, we are not engrafting upon the jurisprudence of this state the law of community property. On the question of alimony the judgment is reversed with instructions to the trial court to enter an award of lump sum alimony sufficient to compensate the wife for her contribution to the marriage.

Id. at 1203-04 (quoting Brown, 300 So.2d at 726).

Our supreme court in Canakaris added the following explanation of the application of the test enunciated by Judge Rawls:

The court emphasized that its policy was not grounded upon principles of community property, but on basic fairness; a dissolution award should be sufficient to compensate the wife for her contribution to the marriage.

We recognize that a trial court need not equalize the financial position of the parties. However, 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 should not be "shortchanged." Brown v. Brown.

382 So.2d at 1204.

This court has on several occasions followed the precepts of Brown and Canakaris. See for example Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA 1982), and Tronconi v. Tronconi, 425 So.2d 547 (Fla. 4th DCA 1982).

In applying the discretionary standard of review the test of correctness is also found in Canakaris, quoting from Delno v. Market Street Railway, 124 F.2d 965, 967 (9th Cir.1942):

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. 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.

382 So.2d at 1203.

In our view the share allotted to Maureen McSwigan from the partnership assets...