Polley v. Polley, s. 91-1405

• Decision Date: 22 October 1991
• Docket Number: 91-517,Nos. 91-1405,s. 91-1405
• Citation: 588 So.2d 638
• Parties: 16 Fla. L. Weekly D2723 Ruth S. POLLEY, Petitioner/Appellant, v. Richard D. POLLEY, Respondent/Appellee.
• Court: Florida District Court of Appeals

Page 638

588 So.2d 638

16 Fla. L. Weekly D2723

Ruth S. POLLEY, Petitioner/Appellant, v. Richard D. POLLEY, Respondent/Appellee.

Nos. 91-1405, 91-517.

District Court of Appeal of Florida,

Third District.

Oct. 22, 1991.

Rehearing Denied Dec. 4, 1991.

Markus & Winter and Dennis E. Wald, Miami, for petitioner/appellant.

Alan S. Rosenthal and Eduardo I. Rasco, North Miami Beach, for respondent/appellee.

Before BASKIN, JORGENSON and LEVY, JJ.

BASKIN, Judge.

Ruth Polley appeals a final judgment of dissolution of marriage. She also seeks a writ of certiorari to review the trial court's denial of her motions to quash writs of garnishment. We reverse the final judgment and deny the petition. ¹

Ruth and Richard Polley were married for 31 years. They have four children, one of whom is a minor. During the marriage, the husband developed a formula for a protective coating for construction materials. The parties marketed the product through Polymorphic Polymers Corporation (PPC), a close corporation, for which they both worked. The wife owns 600 shares of PPC stock. ² The husband created two close corporations, Hydrodine and Omnidine, to market other products he had developed. He owns 550 shares in Hydrodine and 100% of the shares in Omnidine.

PPC shareholders removed the husband from his position as chief operating officer and elected the wife an officer of the corporation. She earns approximately $55,000 annually in that position. After his removal, the husband began working as a consultant and salesman at another corporation to which he had previously given the formula to PPC's primary product. He has made several sales and has received draws and advances against commissions.

In the final judgment dissolving the marriage, the trial court awarded the husband the wife's interest in the marital home, his controlling shares in Hydrodine and Omnidine and a gold watch and chain given to the wife by her mother-in-law. The husband was not required to pay child support. The court awarded the wife the 600 PPC shares and a 1983 Buick, ³ ordered her to pay the husband $1,000 a month as "rehabilitative alimony" for six years, and to pay the mortgages, taxes, and repair bills for the marital home. She receives no credit for any portion of the expenses. She retains exclusive possession of the home until the minor child becomes eighteen, approximately six years. The trial court also ruled that the wife must pay the husband's attorney's fees. Upon consideration of the final judgment as a whole, we conclude that the judgment is arbitrary and unreasonable. See Hamlet v. Hamlet, 583 So.2d 654 (Fla.1991). We address each award in turn.

First, we conclude that the trial court erred in failing to order the husband to pay child support for the parties' minor child. Upon the husband's departure from PPC, he obtained employment as a consultant for a company selling the same product. The husband asserts that he receives no income from this position; however, the record indicates that he has accepted draws and advances against commissions from the company. The trial court's denial of child support was based merely on a finding that the husband "has no income of his own," but the record does not support that finding. There is competent substantial evidence that the husband has received income as contemplated by section 61.046(4), Florida Statutes (1989). See Alvarez v. Board of Trustees of the City Pension Fund for Firefighters and Police Officers in the City of Tampa, 580 So.2d 151, 153-4 (Fla.1991); Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990), review denied, 581 So.2d 1312 (Fla.1991). In addition, section 61.30(2)(b), Florida Statutes (1989), provides that "[i]ncome shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent's part, absent physical or mental incapacity or other circumstances over which the parent has no control." The record is devoid of evidence that the husband's underemployment is involuntary. On the contrary, there is substantial competent evidence that the husband has voluntarily chosen to continue the consulting position despite the lack of adequate remuneration. There are no circumstances to support a finding that the husband lacks the ability to obtain employment commensurate with his proven ability to formulate and market a product or to operate a corporation.

Where both parties are financially able to fulfill their child-support obligations, Cobb v. Cobb, 538 So.2d 1370 (Fla. 3d DCA 1989), one parent's voluntary underemployment does not eradicate that parent's child-support obligation. The trial court should have determined "the employment potential and probable earnings level of the parent ... based upon his ... recent work history, occupational qualifications, and prevailing earnings level in the community...." Sec. 61.30(2)(b), Fla.Stat. (1989). It did not do so. Accordingly, we hold that the trial court erred in failing to impute income to the husband for child-support purposes. See Huntley v. Huntley, 578 So.2d 890 (Fla. 1st DCA 1991); Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989); Bielecki v. Bielecki, 505 So.2d 546 (Fla. 3d DCA), review dismissed, 511 So.2d 297 (Fla.1987); Ward v. Ward, 502 So.2d 477 (Fla. 3d DCA 1987); Maddux v. Maddux, 495 So.2d 863 (Fla. 4th DCA 1986). On remand, the trial court is directed to conduct a hearing to ascertain the father's actual and imputed income to determine a child-support award. See Sec. 61.30(2)(b), Fla.Stat. (1989).

In light of our remand for reconsideration of the husband's income, we reverse the trial court's ruling that the wife should pay the husband's attorney's fees and direct the court to entertain further proceedings on the issue consistent with this opinion. Huntley, 578 So.2d at 893; see Mayers v. Mayers, 575 So.2d 321 (Fla. 3d DCA 1991).

Second, we hold that the trial court erred in awarding the husband rehabilitative alimony. "The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills." Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Blumberg v. Blumberg, 561 So.2d 1187, 1188 (Fla. 3d DCA 1989). The record demonstrates that the husband does not need assistance in becoming self-sufficient. He was fully capable of self-support at the end of the marriage and is employed. Furthermore, he has marketable skills. Vena v. Vena, 556 So.2d 436 (Fla. 5th DCA 1990); compare Mayor v. Mayor, 570 So.2d 1044 (Fla. 3d DCA 1990) (former spouse awarded rehabilitative alimony because further education was necessary to improve spouse's income potential). The husband does not require redevelopment of previously acquired skills, and does not plan to obtain additional education or training for his support. Rehabilitative alimony is inappropriate under these circumstances.

Third, we hold that the trial court erred in failing to fashion an equitable distribution scheme. The court found that the marital home and 600 shares of PPC stock were the significant marital assets. It valued the home at between $150,000 and $175,000, subject to $36,000 in notes and mortgages. As for the PPC stock, the court ruled that the stock had no market value "because of substantial, unpaid loans to outside shareholders," but concluded that the shares "have real value to the parties because they can provide an income of not less than $55,000 per year in salary and perks [sic] to the wife." (Emphasis supplied.) The final judgment does not set forth the "real value" of the shares.

The parties do not dispute that the PPC stock is a marital asset and that the stock value is subject to equitable distribution. ⁴ Lanzetta v. Lanzetta, 563 So.2d 101 (Fla. 3d DCA 1990); Rodriguez v. Rodriguez, 550 So.2d 16 (Fla. 3d DCA 1989); Robbins v. Robbins, 549 So.2d 1033 (Fla. 3d DCA 1989), review denied, 560 So.2d 234 (Fla.1990); Manzella v. Manzella, 473 So.2d 39 (Fla. 3d DCA 1985); Novak v. Novak, 429 So.2d 414 (Fla. 4th DCA), review denied, 438 So.2d 833 (Fla.1983). The wife contends that the trial court erred in treating her salary as an asset for equitable distribution purposes. Although we find that the trial court did not consider the wife's salary a marital asset, we conclude that the evidence does not support the trial court's valuation of the PPC stock. The trial court's valuation of the PPC stock must be supported by competent substantial evidence. Eckroade v. Eckroade, 570 So.2d 1347 (Fla. 3d DCA 1990); Ross v. Bandi, 566 So.2d 55 (Fla. 4th DCA 1990); Hamm v. Hamm, 492 So.2d 467 (Fla. 1st DCA 1986); Marcoux v. Marcoux, 475 So.2d 972 (Fla. 4th DCA 1985), review denied, 486 So.2d 597 (Fla.1986); Greer v. Greer, 438 So.2d 535 (Fla. 2d DCA 1983); Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla.1982). Absent such evidence, the trial court's valuation constitutes an abuse of discretion. See Marcoux v. Marcoux, 464 So.2d 542, 544 (Fla.1985); Zucker v. Zucker, 577 So.2d 591 (Fla. 3d DCA 1991); Sheffield v. Sheffield, 522 So.2d 986 (Fla. 1st DCA 1988); Addington v. Addington, 522 So.2d 897 (Fla. 1st DCA 1988).

The wife presented expert testimony as to the value of the parties' interest in PPC. The expert testified that in his professional opinion, based on an analysis of PPC's business and financial documents, and other factors, the corporation had a negative value. ⁵ The husband did not present any evidence to contradict that conclusion. Nevertheless, the trial court apparently valued the parties' interest in the business at approximately the value of the marital home, and concluded that the award of the stock to the wife justified awarding the husband the entire equity in the marital home. No record evidence supports this assessment of the parties' interest in PPC. Zucker; Ross; ...