Seitz v. Seitz, s. 84-1447

• Decision Date: 18 June 1985
• Docket Number: Nos. 84-1447,84-2741,84-2740,s. 84-1447
• Parties: 10 Fla. L. Weekly 1520 Ronald A. SEITZ, Appellant, v. Arlene SEITZ, Appellee.
• Court: Florida District Court of Appeals

Page 612

471 So.2d 612

10 Fla. L. Weekly 1520

Ronald A. SEITZ, Appellant, v. Arlene SEITZ, Appellee.

Nos. 84-1447, 84-2740, 84-2741.

District Court of Appeal of Florida Third District.

June 18, 1985.

Rehearing Denied July 10, 1985.

Barranco, Kellough & Kircher; Daniels & Hicks and Sam Daniels and Patrice A. Talisman, Miami, for appellant.

Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik and Paul A. Louis, and John Zavertnik, Miami, for appellee.

Before BARKDULL, NESBITT and JORGENSON, JJ.

PER CURIAM.

The husband appeals the final judgment of dissolution of marriage which made various awards of alimony and support to the wife, and in addition, he appeals the award of attorney's fees. We affirm the final judgment of dissolution and the awards made therein but reverse the award of attorney's fees.

After three days of testimony, the trial court made the following findings of fact which are supported by the record. The parties were married in New York in 1964 and moved to Miami in 1972. Arl-Ron Corporation was formed by the parties to buy and operate a dry cleaning business. The wife's participation in the early years of the business was substantial. The stock in the corporation is wholly owned by the husband and has a value of $753,510. In 1983, the husband received a salary of $83,200 per year as well as $25,298 in corporate perquisites. In addition, the husband established an employer-funded corporate defined benefit plan. The trial court averaged the yearly payments to this plan and treated this amount ($27,514) as part of the husband's annual economic income. The court also included in its determination of the husband's annual economic income $60,000 which testimony indicated he receives from an "undisclosed source."

The parties own two homes by the entireties. The "Glenn Eagle" home, valued at $240,000, has an outstanding mortgage of $154,000. The "Mahogany" home, valued at $136,000, has an outstanding mortgage of $44,000. The husband has $82,544 in the pension fund and $18,000 in an IRA; the wife has $7,226 in the pension fund and $3,000 in an IRA. The husband also holds a note from the corporation for $47,500 and owns stock valued at $6,000. Two children were born of the marriage, one of whom is a minor.

In the final judgment of dissolution, the trial court dissolved the marriage and, inter alia, required the husband to pay: (1) $421,764 in lump sum alimony as equitable distribution ¹ (which can be paid by quarterly installments of $11,716, with the wife acquiring a security interest in fifty per cent of the Arl-Ron stock and the assets of the corporation to secure the lump sum award); (2) $4,500 a month in permanent periodic alimony; (3) $1,600 a month in child support; (4) all the minor child's medical expenses; (5) the premiums necessary to maintain his present life insurance with the minor child designated as beneficiary until she reaches majority; (6) all reasonable and necessary bills incurred by the wife which were outstanding prior to the final judgment; and (7) the expenses of the wife's current dental treatment. Pursuant to an agreement between the parties, the court ordered the husband to deed his one-half interest in the "Mahogany" home to the wife and the wife to deed her one-half interest in the "Glenn Eagle" home to the husband. ²

While the final judgment was on appeal before this court, the trial court entered an order, pursuant to a retention of jurisdiction in the final judgment, which awarded the wife $100,000 in attorney's fees. The husband has appealed this order as well as the final judgment. The matters have been consolidated before this court.

The only points raised by the husband relating to the final judgment which merit discussion are those concerning his ability to pay the awards made in the judgment. ³ Initially, the husband contends that the trial court improperly took into account $60,000 a year that the husband receives from an "undisclosed source" in determining his annual economic income. He argues that this finding was based upon the wife's testimony that he was "skimming" this money from the business. The husband concludes, therefore, that the trial court's judgment must be reversed because it requires him to continue an illegal activity to fund the alimony award. ⁴ See King v. King, 79 Neb. 852, 113 N.W. 538 (1907) (in awarding alimony, court will not speculate upon or consider future income from a continuous career of criminality); Moore v. Moore, 198 Pa.Super. 349, 181 A.2d 714 (1962) (a support order may not be based upon the assumption that continuous unlawful pursuits will provide the anticipated income). Although we agree wholeheartedly with these cases cited by the husband and the reasoning therein, we find they are inapplicable to the present case.

It is well settled in Florida that income can be imputed to a spouse although the source of that income cannot be clearly established.

Where the head of a family by supplying money over a period of years, establishes and maintains a standard of living on a certain financial level, it may be inferred, in the absence of a sufficient showing to the contrary, that he has a source of income or financial status sufficient to enable him to continue to maintain his spouse in substantially the same manner of living.

Klein v. Klein, 122 So.2d 205, 207 (Fla. 3d DCA 1960). See also Garfield v. Garfield, 58 So.2d 166 (Fla.1952); McRae v. McRae, 52 So.2d 908 (Fla.1951); Anderson v. Anderson, 451 So.2d 1030 (Fla. 3d DCA 1984); Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA 1977); Preston v. Preston, 216 So.2d 31 (Fla. 3d DCA 1968), cert. denied, 222 So.2d 753 (Fla.1969); Farbman v. Farbman, 208 So.2d 648 (Fla. 3d DCA 1968). An accountant who reviewed the husband's financial affidavit and amended financial affidavit testified that based upon the husband's representations of expenses over a period of several years, the husband had an undisclosed source of income in the approximate amount of $60,000 per year. This testimony was corroborated by testimony from the wife and the wife's brother as to the husband's continual access over several years to ready cash in large amounts.

The trial court did not find, as the husband contends, that the income was derived from illegal activity, but rather merely found it came from an "undisclosed source." ⁵ Where, as here, the record demonstrates that "a husband has set a standard of living different from his ledger sheets and has maintained that standard over some period of time, the court is justified in holding that he has funds which are not visible." Bucci, 350 So.2d at 789. See generally Estreicher & Kornreich, Imputing Income: Proving the Unprovable, Fla. B.J., April 1985, at 56. Accordingly, it was not reversible error for the trial court to include the $60,000 from an undisclosed source in its...