Powell v. Powell, 81-731

• Decision Date: 06 October 1982
• Docket Number: No. 81-731,81-731
• Citation: Powell v. Powell, 421 So.2d 575 (Fla. App. 1982)
• Parties: Margaret Alice POWELL, Appellant, v. Harry E. POWELL, Appellee.
• Court: Florida District Court of Appeals

Page 575

421 So.2d 575

Margaret Alice POWELL, Appellant, v. Harry E. POWELL, Appellee.

No. 81-731.

District Court of Appeal of Florida Fifth District.

Oct. 6, 1982.

Rehearing Denied Nov. 9, 1982.

Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant.

Tura Schnebly Paxson of Becks, Becks & Wickersham, Daytona Beach, for appellee.

COBB, Judge.

This is an appeal by the wife, Margaret Alice Powell, from a final judgment regarding property rights, alimony, attorney fees and costs awarded by the trial court in conjunction with a dissolution of her fourteen-year marriage to Harry E. Powell.

It is the contention of the appellant that the trial court erred in denying her claims for special equity and lump-sum alimony in regard to promissory notes due the parties resulting from the sale of stock in an incorporated family business, United Pest Control, Inc., and the real property from which the business operated; in denying her any special equity in another corporation owned by the husband, Tillis Exterminating, Inc.; in denying her permanent alimony; and in awarding her interest in a jointly-owned business, Robbins & Rollins, Inc., to the husband.

It is axiomatic that factual conflicts below must be viewed and resolved in favor of the appellee by this court. Viewed from that perspective, there was evidence before the trial court that these parties actually had become insolvent despite paper "assets," thus rendering each party "needy," and neither "able" to pay substantial alimony beyond that provided.

The trial court, in paragraph 12 of its judgment, stated "that neither party shall be entitled to alimony, either permanent or rehabilitative, from the date of this Order." This statement is contrary to what the trial court actually awarded, and indicates a misconception by the court of the broad compass of the term "alimony." The trial court ordered the defunct husband to pay joint liabilities of the parties in an amount of approximately $100,000, the equivalent in itself of an alimony award. In addition, the wife was awarded temporary alimony in the form of the right to occupy the marital home for a two-year period, ¹ the interest of the husband in a jointly-owned 1978 Cadillac, a monthly $500 payment of accrued alimony pendente lite until discharge of an aggregate amount of $4,800, all the furniture and furnishings in the marital domicile, and a 10% interest in the monthly payments due on a note given by the corporate purchaser of the pest control business, United Pest Control of Central Florida, Inc., which constitutes a monthly payment to her of $330. The appellee concedes that, as a result of scrivener's error, this latter sum is shown to be $300 in the final judgment, and should be corrected accordingly.

The pest control business of the parties was originally capitalized, insofar as the Powells are concerned, solely with the husband's assets acquired prior to this marriage. It was testified that the wives of Powell and Huling were each issued a single stock share, as opposed to nine for each husband, only to avoid corporate dissolution in the event one of the couples divorced. This stock allocation was based upon the suggestion of the attorney handling the incorporation. There was evidence that the wife was paid a reasonable salary as an employee for all the work she did for the pest control business. There also was testimony that the wife was working daily at time of trial, that she had never applied for disability benefits, and that her mental problems were not disabling, either from an economic or physical standpoint. She herself testified that she had never been adjudicated incompetent nor even advised by an attending physician that she should not work. The note payable by the purchasers of the pest control business was of "questionable collectability" and was in default at time of trial.

It is clear, and was so conceded at oral argument by counsel for appellee, that no basis existed for the trial court to award the jointly-owned Robbins & Rollins stock to the husband. See Aguiar v. Aguiar, 386 So.2d 280 (Fla. 4th DCA 1980).

In Hair v. Hair, 402 So.2d 1201 (Fla. 5th DCA 1981), review denied, 412 So.2d 465 (Fla.1982), this court, in observing the guidelines from Canakaris, ² relied upon the following quote from that landmark case:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.

With the exception of the award of the Robbins & Rollins stock, the indicated scrivener's error, and the erroneous statement regarding alimony in paragraph 12, we cannot say that the judgment of the trial court, viewed in its totality, reflects a view which no reasonable man would take. Therefore, with those three exceptions, the judgment of the trial court should be affirmed and the cause remanded for the trial court to correct its final judgment in accordance with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAUKSCH, J., concurs.

SHARP, J., dissents with opinion.

SHARP, Judge, dissenting.

I dissent in this case, and protest what I feel is a gross miscarriage of justice. The majority seals its denial of relief for the wife in this case with the truism that a discretionary ruling by a trial court should not be overturned because of its "superior vantage point." Query if any such presumption should be given in this case where the trial judge, himself, did not hear the testimony. The record is composed of four sessions of testimony taken before a Special Examiner, from August 29, 1980 to February 19, 1981, and it is transcribed like depositions. The Examiner made no findings of fact. Therefore, the trial judge was in no better position than this appellate court to weigh contrary testimony and resolve issues of credibility. Julian v. Julian, 188 So.2d 896 (Fla. 2d DCA 1966); Sconyer v. Scheper, 119 So.2d 408 (Fla. 2d DCA 1960).

I. Special Equity or Lump Sum Alimony

Based on the undisputed portions of this record, I think the trial judge erred in not making a more equitable division of the assets of the parties acquired and built up during the course of their fourteen year marriage--either through the mechanism of granting the wife a greater ownership interest in the assets of the pest control business, above and beyond her ten percent interest due to her stock ownership, by calling it a special equity or through lump sum alimony. ¹

The parties began their fourteen and one-half year marriage with few material possessions. When they married, the wife worked as a seamstress and the husband worked as a meat cutter. They pooled their earnings and both earned G.E.D. diplomas. The husband continued his studies and became licensed as a pest exterminator by the State of Florida. In 1974 or 1975 the husband and Mr. Roy Huling jointly began a pest control business named United Pest Control, Inc. The original capital for the Powell's share of the business (some $6,000) was borrowed and the loan was secured by the parties' jointly-owned car and stock, by some stock owned by the husband before the marriage, and by the wife's fourteen hundred dollar ($1,400) certificate of deposit. ²

When the pest control business began to grow, about six months after its inception, both Mrs. Powell and Mrs. Huling quit their jobs and began working in the office. They were the office staff for the new enterprise--the bookkeepers, office managers, secretaries and clerks. They became supervisors as other employees were added. The wives worked long hours and took work home when the business required it. In addition, they performed their functions and duties as homemakers.

United Pest Control, Inc. prospered. The Hulings took over the Jacksonville division and the Powells ran the division in New Smyrna Beach. Mrs. Powell handled all of the bill paying, payroll, and billing for both offices, and later performed similar jobs for Tillis and Master Shield, two spin-off business which were begun with assets and accounts from United. Mrs. Powell worked in this capacity until November, 1979, when she was hospitalized for a mental illness and the parties separated.

In 1979 United provided both families with a good living. The wives were paid twelve thousand five hundred dollars ($12,500) each and the husbands each received a salary of thirty-four thousand three hundred dollars ($34,300). United was a Sub-Chapter "S" corporation, and Mr. Powell said he and Mr. Huling split any excess profits as dividends. The corporation was set up with Mr. Huling and Mr. Powell each owning nine shares, and the wives each owning one share. The Powells deposited their earnings into a joint account and used them for joint living expenses, to acquire other assets, and to fund United.

In 1979, while Mrs. Powell was hospitalized for a mental illness, the stock of United was sold to two purchasers of the business (one in Jacksonville and one in New Smyrna Beach), and all of its assets, consisting of the real estate where the business offices were located, were transferred to a partnership owned solely by Mr. Huling and Mr. Powell. They then leased the properties back to the purchasers. The fair market value of the New Smyrna property was twenty-one thousand dollars ($21,000). The purchasers of the business executed notes for the balance of the obligation owed--roughly seven hundred thousand dollars ($700,000)--payable to Mr. Huling and Mr. Powell. Mr. Powell's share was later limited to the New Smyrna purchaser and business, and he was receiving three thousand...