Segall v. Segall, s. 96-2328

• Decision Date: 25 March 1998
• Docket Number: 97-0667,Nos. 96-2328,s. 96-2328
• Parties: 23 Fla. L. Weekly D808 Bart L. SEGALL, Appellant, v. Leslie F. SEGALL, Appellee.
• Court: Florida District Court of Appeals

Page 983

708 So.2d 983

23 Fla. L. Weekly D808

Bart L. SEGALL, Appellant, v. Leslie F. SEGALL, Appellee.

Nos. 96-2328, 97-0667.

District Court of Appeal of Florida,

Fourth District.

March 25, 1998.

Susan R. Brown of Susan R. Brown, P.A., Hollywood, for appellant.

No brief filed on behalf of appellee.

MARRA, KENNETH A., Associate Judge.

Appellant, Bart L. Segall ("the Husband"), appeals the final judgment of dissolution entered below which dissolved his marriage to the appellee, Leslie Segall ("the Wife"). The Husband asserts that the trial court erred in: (1) unequally distributing the parties' marital assets and liabilities, (2) awarding the Wife permanent alimony, (3) calculating the amount of child support awarded to the Wife, and (4) awarding the Wife attorneys' fees. Because we agree that the trial court committed reversible error, we reverse the final judgment and remand for further proceedings.

I. BACKGROUND

The parties were married on July 20, 1985, and the Wife filed a petition for dissolution on September 9, 1993. At the time of trial, the Wife was almost 43 years old and the Husband was 49 years old. The parties had two minor children from the marriage.

In January of 1986, the parties purchased the marital home in Hollywood, Florida. At the beginning of the marriage, the Husband worked as an account executive at an advertising firm. In August of 1986, he began his career with a national real estate brokerage firm as a sales director and subsequently became vice-president. The Husband continued his employment in this capacity until April of 1991, when he accepted a job with the brokerage firm in California as the North American Field Marketing Director. After commuting from California to Florida for the first year, the entire family relocated to California in April of 1992. The Wife subsequently left the Husband and relocated to Florida. The Husband later followed the Wife and children to Florida and, after an unsuccessful attempt at reconciliation, the parties permanently separated in October of 1992.

The Wife began working full-time as a registered nurse in January of 1993. The Husband began working as a realtor in an independent contractor capacity in September of 1995. Estimates of the Husband's anticipated earnings ranged between $50,000 and $100,000. The Wife earned $35,000 in salary during 1995, working forty hours per week.

II. THE TRIAL COURT ERRED IN PERFORMING AN EQUITABLE DISTRIBUTION OF MARITAL ASSETS AND LIABILITIES

A. Unequal Equitable Distribution

Section 61.075(1), Florida Statutes (1993), mandates an equitable distribution of net marital assets unless there is a justification for an unequal distribution based on all relevant factors. Regardless of whether the distribution is equal or unequal, the distribution must be accompanied by specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities.

§ 61.075(3).

The trial court awarded the Wife: the marital home, which had an equity value of approximately $40,000; ¹ the sum of $9,000; and the Wife's unvalued pension. In contrast, the court awarded the Husband: $9,100, the value of marital assets that the court found that he had previously sold; the Husband's depleted pension; and $1,780 in marital debt.

The only specific justifications given by the trial court for this unequal division were the Husband's purported significant expenditures to purchase personal items and his alleged dissipation of the parties' marital assets. In Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990), this Court described dissipation of assets as a situation where one spouse used marital funds for his or her own benefit, and for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown. See id. at 823 (citations omitted). In 1993, the Legislature adopted this concept in section 61.075, when it added the following as a factor for the court to consider in distributing marital assets:

The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition.

§ 61.075(1)(i).

The evidence in the instant case does not support the trial court's inequitable distribution based on its enumerated findings. In fashioning its distribution scheme, the trial court relied upon many matters which arose before there was any evidence of an irreconcilable breakdown in the marriage. Moreover, several of these expenditures were nothing more than purchasing decisions made during the course of the marriage.

The evidence in the record is insufficient to support the conclusion that the Husband's alleged uncontrolled spending and mismanagement of money constituted "intentional dissipation, waste, depletion, or destruction of marital assets," sufficient to warrant an inequitable distribution. See Gentile, 565 So.2d at 823 (husband's mismanagement of family's finances did not constitute marital misconduct to be considered in fashioning distribution scheme); Monas v. Monas, 665 So.2d 346, 347 (Fla. 4th DCA 1995) (inequitable distribution not justified on basis of husband's alleged squandering of assets). In Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988), this Court stated that:

those entering into a marriage partnership must share not only the benefits and successes of the relationship, but also the risk of failure and the economic consequences to the parties of such failure.

Id. at 1018. Thus, the trial court erred in awarding a greater share of the marital assets to the Wife on the basis of the findings in its final judgment.

B. Pension Plan

The Husband liquidated his pension plan in October of 1992 and subsequently used it for living expenses and child support payments. The final judgment stated that "[t]he Court determines that the parties shall keep their own respective retirement accounts and plans without claim from the other party." This provision of the final judgment also stated that the parties' pension/retirement benefits accrued during the marriage.

Section 61.075(6) states that the date for determining the marital assets and liabilities, and the value of such assets and the amount of such liabilities, is the earlier of the date the parties entered into a valid separation agreement or the date of filing of a petition for dissolution of marriage, unless the trial judge determines another date is just and equitable under the circumstances. Thus, the trial court's classification of the Husband's pension plan as a marital asset, when it was liquidated one year prior to the filing of the petition, was improper. In the absence of any findings that the Husband wrongfully depleted the pension through any misconduct or that the pension was used for any purpose that would support crediting the value of this depleted asset to him, the court erred in distributing the value of this depleted pension as a marital asset to the Husband. See Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2nd DCA 1994)(error to distribute value of husband's IRA liquidated before final hearing and used to pay temporary support order).

The trial court also failed to comply with the dictates of section 61.075(3)(b), by not identifying the value of the Wife's pension. Upon remand, the trial court is directed to strike that portion of the judgment awarding the Husband's depleted pension to him, identify the value of the Wife's pension, and specify the date it is using to determine and value the marital assets and liabilities if it is other than the date of the filing of the petition.

C. Marital Debt

The trial court also erred in failing to equitably distribute more than $30,000 in marital debt. Other than the $1,780 Macy's debt, which the court specifically allocated to the Husband, the trial court failed to perform an equitable distribution of this marital debt. The court's failure to make findings clearly identifying the marital liabilities and designating which spouse was responsible for each, as required by section 61.075(3)(c), constitutes reversible error. See Keaton v. Keaton, 634 So.2d 798, 799 (Fla. 4th DCA 1994)(reversed equitable distribution scheme for failure to make statutory findings required by section 61.075(3)). Upon remand, the trial court is directed to specifically identify and equitably distribute the parties' marital liabilities.

III. THE TRIAL COURT ABUSED ITS DISCRETION IN ITS AWARD OF PERMANENT ALIMONY TO THE WIFE

Section 61.08(1), Florida Statutes (1993), directs the trial court to "include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony." Although the court's final judgment tracked the language of section 61.08(2) in discussing the factors it considered, it failed to make findings of fact relative to those factors. The only finding supporting the trial court's award of permanent alimony was that the Wife's "past income and ability to earn future income so as to maintain the lifestyle established during the marriage" was limited to less than one-half of the Husband's past annual income-earning ability. This finding was insufficient.

In determining whether to award permanent periodic alimony, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments. See Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). The trial court awarded the Wife $692 per month in...