Rosenfeld v. Rosenfeld, 90-716

• Decision Date: 17 March 1992
• Docket Number: No. 90-716,90-716
• Citation: 597 So.2d 835
• Parties: 17 Fla. L. Weekly D747 William ROSENFELD, Appellant, v. Maria Elena P. ROSENFELD, Appellee.
• Court: Florida District Court of Appeals

Page 835

597 So.2d 835

17 Fla. L. Weekly D747

William ROSENFELD, Appellant, v. Maria Elena P. ROSENFELD, Appellee.

No. 90-716.

District Court of Appeal of Florida Third District.

March 17, 1992.

On Motion for Rehearing May 12, 1992.

Greene & Marks and Cynthia L. Greene, Miami, Fred Dellapa, Coral Gables, for appellant.

Elser, Greene & Hodor and Cynthia L. Greene, Miami, for appellant on rehearing.

Mark E. Pollack and Stuart L. Tockman, for appellee.

Stuzin & Camner and Mark E. Pollack, Miami, for appellee on rehearing.

Before FERGUSON, COPE and LEVY, JJ.

PER CURIAM.

William Rosenfeld appeals from a final judgment of dissolution of marriage in which the substantial majority of the parties' assets were awarded to the wife. We affirm in part and reverse in part.

This was a five and one-half year marriage with no children. Both parties had been married previously and had support obligations resulting from previous marriages. Both parties were employed in the fragrance industry. William was a national sales manager for the fragrance division of Foremost-McKesson, until the company decided to terminate that division in 1986. From February, 1987 until December, 1988, he was employed in his wife's business, Femme Internationale, Ltd., a closely held Florida corporation equally owned by Maria Elena and her mother. Maria Elena started this business in 1981, after she and William started dating and after William was employed at McKesson.

As national sales manager for McKesson, William was responsible for buying products for the company to retail. To this end, William purchased millions of dollars worth of fragrance products from Femme. Thus, McKesson's decision to leave the industry severely hurt Femme since it was Femme's largest account. New financing kept the business afloat, but it is no longer as profitable as it was in the past.

Both parties brought property into the marriage. Maria Elena owned a house in Miami and property in Polk County, in addition to her 50 percent interest in Femme. William had an interest in two limited partnerships. After the parties were married, they purchased the marital home, a condominium, two cars and interests in two more limited partnerships. It appears from the record that joint marital funds were used to acquire assets, as well as maintain the parties' respective nonmarital assets.

Marital funds were also used to provide some support for William's parents, to provide a loan to his son and to his sister, to pay alimony to his first wife and to pay other expenses, such as attorneys' fees, associated with his divorce. Maria Elena Since neither party was seeking spousal support, the sole issue before the trial court was the distribution of marital property. William asked for equitable distribution of the assets, including any enhanced value. Maria Elena argued strenuously that because William had spent marital assets on such expenses as alimony and loans to his family, he had "wasted" those assets and was not entitled to receive any distribution at the end of the marriage. ¹ The trial court agreed, ruling in part, "The court specifically finds that the Husband has wasted and misused marital assets. The balance of the assets should be awarded to the Wife, as the Husband has already received his equitable distribution." Maria Elena was awarded the marital home and all of the fixtures and furnishings, the condominium and all of its fixtures and furnishings, all of her interest in Femme, all of the funds remaining in the joint accounts, including substantial sums which she had removed from a joint account at the time the parties separated, the property in Polk County, all of her jewelry, including pieces given to her by William, a car valued at $12,500 and one half interest in each of the four limited partnerships.

had a son from a previous marriage whom she supported.

We conclude that the judgment must be reversed. The wife in this case took the position at the time of the divorce that the trial court should revisit the parties' expenditures throughout the marriage, and should retroactively decide that certain of the expenditures should not have been made. As the Fourth District has described it, this amounted to a request for "a financial accounting of all of the marital years to determine which spouse was the more prudent investor and spender. We do not choose to start down such a path with this case." Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990). ²

In the present case the wife complains because the husband paid court-ordered support to his previous wife, and made other payments required by the divorce decree. The wife's position is entirely without merit.

To begin with, once William and Maria Elena married, each spouse's income during the marriage was marital income. Thus, William's own income from his own job was marital income. It follows that in this case, as in most cases, marital income is the primary source, and possibly the only source, available with which to pay the prior support obligation.

Payments made to an ex-wife or children pursuant to a court order cannot be considered as waste or misuse of the marital assets of the successor marriage. Those obligations were incurred before the successor marriage, and obviously the subsequent spouse was well aware of them prior to the successor marriage. In any event, a party cannot refuse to make court ordered payments on the grounds that he or she has now remarried. Likewise, payment of expenses incident to a prior dissolution, such as attorneys' fees, does not constitute waste or misuse of marital funds. ³

The wife argued that certain gambling trips should not have been made during the marriage. Since the wife participated The wife contended that a loan of $6,000 should not have been made to the husband's sister, and $5,500 to the husband's adult son from the prior marriage. We see no basis on which to characterize either transaction as waste or misuse of marital assets. The trial court has discretion, however, to assign those assets--the amounts receivable from the sister and son--to the husband as a portion of his equitable distribution.

in those trips, she will not now be heard to complain.

Similarly without merit is the extraordinary suggestion that the husband should not have assisted in the support of his parents. ⁴ In short, the finding of waste and misuse of assets was in error, as was the equitable distribution based thereon.

Since there must be further proceedings on remand, we note that this dissolution proceeding is subject to the equitable distribution statute. Section 61.075, Fla.Stat. (1991). Equitable distribution of marital assets is presumptively equal, but may be varied if there is good reason to do so. See Bergstrom v. Bergstrom, 559 So.2d 82, 83 (Fla. 3d DCA), review denied, 574 So.2d 139 (Fla.1990), and cases cited therein; Sec. 61.075(1), Fla.Stat. (1991).

Pursuant to this statute, "the court shall set apart to each spouse that spouse's nonmarital assets and liabilities and shall distribute between the parties the marital assets and liabilities in such proportions as are equitable, after considering all relevant factors...." Section 61.075(1), Fla.Stat. (1991). The factors are enumerated in the statute. "Nonmarital assets and liabilities include ... [a]ssets acquired and...