Pietras v. Pietras, 4D01-4841.

• Decision Date: 26 March 2003
• Docket Number: No. 4D01-4841.,4D01-4841.
• Citation: 842 So.2d 956
• Parties: Paul S. PIETRAS, Appellant, v. Sharon L. PIETRAS, Appellee.
• Court: Florida District Court of Appeals

842 So.2d 956

Paul S. PIETRAS, Appellant, v. Sharon L. PIETRAS, Appellee.

No. 4D01-4841.

District Court of Appeal of Florida, Fourth District.

March 26, 2003.

Rehearing Denied May 7, 2003.

Harry D. Dennis, Jr., of Law Offices of Harry D. Dennis, Jr., and Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for appellant.

Douglas H. Reynolds of Douglas H. Reynolds, P.A., Fort Lauderdale, for appellee.

POLEN, C.J.

Paul Pietras timely appeals a final judgment of dissolution from his ex-wife, Sharon Pietras. We find there are a number of mathematical errors, and some legal errors, in the final judgment, and reverse and remand for further proceedings.

Paul and Sharon were married in July of 1974. Paul was an insurance adjuster and Sharon was a teacher; neither party had substantial assets. Paul started his own insurance agency in early 1980; Sharon quit teaching the following year and worked full-time with Paul at the agency thereafter. The parties accumulated substantial assets over the life of the marriage, including a large number of insurance policies. On December 31, 1998, Sharon informed Paul that she had taken a number of credit card cash advances and that she was filing for divorce. Sharon stayed in the marital home and Paul moved out. Paul continued to pay Sharon's direct household expenses, but did not provide any additional support.

A few months later, Sharon filed a motion for temporary relief which came before Judge Vonhof in August of 1999. Paul was ordered to continue paying Sharon's household expenses, plus an additional $2,500 a month. Paul was also ordered to pay Sharon a lump sum of $46,000, covering her attorney's fees and costs, and expert witness fees and costs. Thereafter, Paul filed a motion for rehearing and a motion to pay Sharon's fees and costs ($46,000 award) from certain joint marital accounts. These motions were denied in strongly worded orders, and Paul was ordered to directly pay the fees and costs award.

Paul's counsel withdrew in July of 2001 and he retained substitute counsel. Although the parties were unable to resolve all their disputes in mediation, a large number of issues were stipulated to before trial, and only a few issues were presented for judicial resolution. The parties agreed the Wife had played a large role in the financial success of the insurance agency, and consequently the marriage, and that their marital assets should be equally divided. They agreed Paul, by way of his control of the insurance agency, had a significantly greater earning potential than Sharon; they were in near agreement in calculating Paul's salary, yet disagreed over the valuation of a number of assets and the amount of alimony Sharon would be entitled to. Paul also challenged Sharon's request to stay in the marital home and maintained there would be no need to secure any court-ordered support award by life insurance. Both parties, predictably, sought entitlement to their respective attorney's fees and costs pursuant to chapter 61.

The matter proceeded to a bench trial before a successor judge in November of 2001. The trial was relatively noncontentious, and the majority of the testimony presented was that of each party's respective expert CPA. During the course of the trial, before Paul testified, Sharon's counselor submitted a proposed final judgment. Then, at the end of Sharon's case, her lead attorney testified that he and his co-counsel were entitled to the payment of all of their costs and fees by Paul, because he had "added to the effort of the lawyers in this case ... caused a lot of problems ... and filed many motions that were frivolous."

A final judgment of dissolution of marriage was ultimately entered which adopted all of Sharon's valuation figures as reflected in her proposed final judgment. The court denied Paul's petition for partition and allowed Sharon to retain control and possession of the marital home. Sharon was also awarded $14,000 a month as permanent periodic alimony. Finally, the court ordered Paul to pay all of Sharon's attorney's fees and costs, noting his "litigious behavior."

On appeal, Sharon concedes the final judgment of dissolution contains a number of duplicative entries, which should be corrected.¹See Noone v. Noone, 727 So.2d 972, 974 (Fla. 5th DCA 1998)(notwithstanding trial court's wide discretion in dissolution matters, appellate court must correct mathematical errors made by the trial court). Paul also contends a number of assets were treated incorrectly, in effect failing to effectuate an even division of the marital assets as the parties had intended. Each asset will be addressed individually.

State Farm Growth Fund Investment # 60005337

An $82,855 withdrawal from this account was charged as an asset to Paul. The record reflects this charge actually consists of two sub-charges: $46,000 withdrawn by Paul to pay Sharon's costs and fees per the 1999 order on Sharon's motion for temporary relief ("Temporary Order"), and $36,855 withdrawn by Paul to pay off a number of bills that were incurred prior to the filing of the dissolution petition. Paul concedes the $46,000 was properly charged to him since he was ordered to pay such per the Temporary Order. However, he contends the $36,855 should not have been charged to him, where the money was used in January of 1999 to pay off credit card cash advances taken by Sharon before she filed her dissolution petition. We agree. Sharon's cash advances before the filing of her petition constitute a marital liability; Paul paid off this liability by withdrawing funds from a marital asset. See Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. 3d DCA 1992)

. This amounts to a "wash," and where the parties agreed to use the most recent valuation dates for the marital assets, should not have been included in the equitable distribution. On remand the trial court shall deduct $36,855 from the marital net worth (assets) and deduct this same sum from Paul's award of assets under the equitable distribution.

Merrill Lynch Account # 29S 99220

(A) A $32,876 withdrawal charged as an asset to Sharon. The record reflects this sum was withdrawn by Sharon and used as a means of support during the pendency of the dissolution action. Though contrary to his financial interests, Paul acknowledges this money, used by Sharon as temporary support, should not have been included in the equitable distribution. See Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991)

. We agree. On remand the trial court shall deduct $32,876 from the marital net worth (assets) and deduct this same sum from Sharon's award of assets under the equitable distribution.

(B) A $48,497 withdrawal charged as an asset to Paul. The record reflects this sum was withdrawn by Sharon to pay her attorneys and expert witness. Sharon concedes this charge is duplicative since Paul was already charged with payment of these fees and costs, i.e., the $46,000 withdrawn from State Farm Growth Fund # 60005337. On remand the trial court shall deduct $48,497 from the marital net worth (assets) and deduct this same sum from Paul's award of assets under the equitable distribution.

Credit card charges

A $7,135 marital liability, factored into Sharon's net worth under the equitable distribution. The record reflects this sum represents charges Sharon incurred on credit cards she had opened, in her own name, after the filing of her petition for dissolution. We find these accounts, and the amounts charged on such, are non-marital, and should not have been included in the equitable distribution. See § 61.075(6), Fla. Stat. (2001)(cut-off date for determining marital assets and liabilities is earliest of the date the parties entered into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of the petition for dissolution). We reject Sharon's contention that the trial court "implicitly" ordered Paul to pay these charges at the 1999 hearing on her motion for temporary relief. On remand the trial court shall remove this $7,135 liability from the parties' marital net worth, and remove this liability from Sharon's award under the equitable distribution.

State Farm Life Insurance Accounts # XXXX-XXXX & XXXX-XXXX

Account # XXXX-XXXX was charged as a $71,581 asset to Paul; account # XXXX-XXXX was charged as an $8,127 asset to Paul. On appeal, Sharon concedes these accounts were double counted since they were included as part of the Paul S. Pietras Profit Sharing Plan. On remand the trial court shall remove these accounts from the parties' marital net worth (assets) and deduct these sums from Paul's award of assets under the equitable distribution.

State Farm Life Insurance Policy # XXXX-XXXX

A $34,800 marital asset, charged to Paul. This sum represents an imputation of payments, $1,200 per month × 29 months, that Paul "failed" to make on his universal life insurance policy (on which Sharon was the beneficiary) from May 1999 until the date of the final hearing. This asset was treated too simplistically and remand is needed.

In the Temporary Order, Paul was ordered to continue to pay all of Sharon's household expenses, including "all insuraance [sic] bills." As of May 1999, Paul stopped paying the premium on a universal life insurance policy on which Sharon was the beneficiary. At trial, Sharon argued Paul's failure to continue to make premium payments on that policy depleted the policy's cash value, a marital asset. While this argument is technically correct, usage of the $1,200 figure for imputation purposes was not.

Universal life insurance is a "hybrid" form of life insurance-part insurance and part investment. Generally speaking, a universal life insurance policy allows the insurer to choose his or her own "premium." A portion of that premium is used to pay account expenses and maintain insurance coverage; the remainder is placed in an interest bearing account, known as the policy's "cash value."...