Rey v. Rey, 90-1102
| Decision Date | 17 April 1992 |
| Docket Number | No. 90-1102,90-1102 |
| Citation | 598 So.2d 141 |
| Parties | 17 Fla. L. Weekly D1006 Bennie Huff REY, Appellant, v. Jose REY, Jr., etc., Appellee. |
| Court | Florida District Court of Appeals |
Glen E. Greenfelder, Greenfelder, Mander, Hanson & Murphy, Brooksville, for appellant.
Charlie Luckie, Jr., and Mary Pavloff Attridge, McGee, Luckie & Dayton, P.A., Brooksville, for appellee.
ON MOTION FOR REHEARING EN BANC
The husband's Motion for Rehearing En Banc is granted. We withdraw our previous opinion and substitute the following for it.
The wife, Bennie Huff Rey, alleges that in dissolving her marriage to Jose Rey, Jr., the trial court abused its discretion in several respects. She contends that the court abused its discretion in failing to require the husband to provide health insurance for the wife and a minor child and in failing to require the husband to secure, with an existing life insurance policy, the future payments of $1,000 per month for child support, $1,000 per month for alimony, and $875 per month for ten years as part of the plan for equitable distribution. She contends that the court further abused its discretion in failing to require the husband to pay interest on the deferred payments of $875 per month, in failing to award adequate permanent periodic alimony and child support, and in failing to award attorney's fees to the wife. We agree only with the wife's contention that health insurance should have been required for the minor child, that the equalizing distribution should be secured, that alimony should be increased, and that her attorney's fees, at least in part, should be awarded.
The husband and the wife are fifty-four and fifty-three years of age, respectively. Four children were born during the parties' 28-year marriage. All of the children are adults except a son, age fourteen, who resides with the wife. However, the husband continues to contribute over $3,000 per month to the support of two adult sons and an unemployed daughter and her child who reside with him.
The husband's past income has varied with the success of the parties' operation of a drugstore. The husband is the store pharmacist, and the wife had participated as the store manager and bookkeeper. The husband's 1989 net income from the store was $144,000 before income taxes. The wife had earned $2,800 per month for her services at the store. The husband terminated her employment because he had decided they could no longer operate the store together after their separation. From her earnings from the drugstore, the wife had purchased several parcels of real estate. At the time of the dissolution of marriage, the wife had sold some of her holdings for a profit and still owned some others. The wife has chosen voluntarily not to seek employment since her departure from the family drugstore.
The final judgment provided for the following distribution of the marital assets. The assets were shown at market value less encumbrances established by the trial judge after hearing conflicting evidence:
ASSET HUSBAND WIFE
Drugstore Operation $275,000
Drugstore Real Estate 67,000
Marital Home 20,000
Miscellaneous Personal Property Not Valued Not Valued
Candlelight Townhouse $ 32,000
Gainesville Condominium 17,000
London Terrace Lots 10,000
Jacobson Lots
Damac Rental 8,000
Dafic, etc., Assignment 40,000
Montecalvo Mortgage 9,000
Ursula Agreement for Deed 23,000
Oakland Mortgage 14,000
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$362,000 $152,000
Court-ordered obligation of husband to wife 105,000
to equalize distribution of assets
payable over 120 months at $875 per month
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$257,000 $257,000
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The liabilities of the parties and monthly servicing payments were not scheduled in the record, but it appears that the marital home is encumbered by two mortgages, the first of approximately $40,000 and the second of approximately $73,000, which together require total annual payments of $21,000. The second mortgage had been incurred to satisfy a federal tax lien imposed as a result of inventory and bookkeeping errors in the operation of the drugstore business and the failure to report some income from the real estate ventures. An unpaid joint tax liability of $34,628 still remains. The drugstore real estate and the wife's investment real estate are also encumbered.
Two modifications to the final judgment would have little effect on the husband and would give some security to the wife and the minor son. Section 61.13(1)(b), Florida Statutes (1989), requires that an order for child support include a provision for health insurance when the insurance is reasonably available. The husband concedes that he maintains health insurance for his son and argues that there is no evidence that he will not continue to do so. Upon remand, the trial court should comply with the statute and require the husband to provide the insurance now in force. The trial judge should consider the extent to which the husband and wife should pay for uninsured medical expenses of the minor son.
The other modification is the use of the life insurance policy on the husband as security for the deferred payments of the amount equalizing the distribution of marital property. The policy existed prior to the dissolution, and the wife was removed as beneficiary when discord began between the parties. The amount awarded to the wife in the form of deferred payments is fixed and survives any misfortune of the husband. The long-term payout of the judgment, however, subjects the collection of these fixed amounts to the misfortunes of life and business and should be secured either by the policy, if sufficient to provide the security, or by a lien upon the business assets and real property. See Fraga v. Fraga, 562 So.2d 851 (Fla. 3d DCA 1990).
While the 1989 net income of the husband was $144,000, the wife's valuation expert testified that, without the drugstore, a pharmacist could anticipate an annual income of approximately $30,000. Selling the store in the near future appears to be an unreasonable alternative to raise funds to satisfy the $105,000 obligation to the wife, since the husband is dependent upon the income from the store to satisfy his alimony, debt service, and child support obligations, as well as to satisfy his living expenses. The parties were unsuccessful in their attempt to use the business assets as security for a loan to pay the federal tax assessment and were forced to encumber the residence with the second mortgage to raise the necessary funds. It appears that no funds will be available to the husband in the near future to satisfy the $105,000 obligation.
Testimony by both parties indicates only two potential sources of cash which must provide for their respective financial needs. Those two sources are the profits from the husband's drugstore business and the wife's earnings from employment should she obtain a job. Since the wife has chosen not to work and no evidence of a reasonable income was presented to impute to her, the only material source is the operation of the drugstore by the husband. The drugstore income is variable, a situation common to most retail businesses. In 1988, the husband had an adjusted gross income of $45,829, less taxes of $12,251 for a net of $33,578. In 1989, the adjusted gross income was $141,600, less taxes of $40,732 for a net of $100,868. Monthly income therefore approximates $2,800 per month in 1988 and $8,400 in 1989. The husband's financial affidavit of August 1989 indicated a monthly income of $5,814 and monthly expenses of $6,279. Approximately $3,000 of the expenses were used for the support of two adult sons enrolled in colleges and an adult daughter and her minor child who reside with the husband. The affidavit did not include a monthly allocation for repayment of the income tax deficiencies and debts.
The wife's affidavit reflected income of $282 per month from a mortgage receivable and expenses of $3,683 per month. If the husband's 1989 income were substituted for that shown on his financial affidavit and the trial court's award of alimony, child support, and equitable distribution were considered, the allocation of the higher income might be as follows:
Monthly income after provision for income taxes $8,400
Monthly expenses
As shown on 1989 affidavit $6,279
Alimony $1,000
Child support $1,000
Payments to equalize equitable distribution of assets 875
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$9,154 $9,154
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Monthly deficit $ 754
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