Siegel v. Siegel

• Decision Date: 12 July 1990
• Docket Number: No. 89-71,89-71
• Citation: 564 So.2d 226
• Parties: 15 Fla. L. Weekly D1816 James D. SIEGEL, Appellant, v. Victoria B. SIEGEL, Appellee.
• Court: Florida District Court of Appeals

Page 226

564 So.2d 226

15 Fla. L. Weekly D1816

James D. SIEGEL, Appellant, v. Victoria B. SIEGEL, Appellee.

No. 89-71.

District Court of Appeal of Florida,

Fifth District.

July 12, 1990.

Robert H. Hosch, Jr., of Butler, McDonald & Moon, Orlando, for appellant.

Dominick J. Salfi of Law Offices of Dominick J. Salfi, P.A., Altamonte Springs, for appellee.

W. SHARP, Judge.

James Siegel appeals from a supplemental final judgment in a dissolution case which awarded his former wife, Victoria, $300 per month permanent periodic alimony, and $9,000 as a contribution to her attorney's fees. This is the second appeal this court has heard in this case. See Siegel v. Siegel, 548 So.2d 266 (Fla. 5th DCA 1989), rev. granted, 559 So.2d 581 (Fla.1990). This appeal concerns the propriety of the trial court's award of attorney's fees and alimony. ¹ We reverse both and remand for further proceedings.

I. ALIMONY AWARD

The record establishes that Victoria is presently in good health. She works as a secretary earning $15,000 per year, and testified she expects to earn $25,000 per year within the next seven years. She is thirty-two years old, and the marriage lasted only six years. According to Victoria's testimony, the standard of living established during the marriage for their three-person family (Victoria, James and their one child) was based on annual support funds of $75,000. It thus appears that Victoria will be able to provide support for herself in a manner reasonably commensurate with the marital standard of living within a finite and ascertainable period of time. ²

Additionally, this record does not reflect any extraordinary circumstances or reasons to award permanent alimony in such a short-term marriage to a spouse so young and in good health. ³ The record provides only a punitive basis for such an award. ⁴ Victoria testified James abused her and her two children by a prior marriage, that he was addicted to alcohol and used drugs, and that he was guilty of other forms of parental and marital misconduct.

There was no showing, however, that such misconduct depleted the parties' marital assets, or that it permanently affected Victoria's earning capacity or caused her any lasting emotional or physical disability. See generally, Noah v. Noah, 491 So.2d 1124 (Fla.1986); Hill v. Hill, 415 So.2d 20 (Fla.1982); ⁵ West v. West, 414 So.2d 189 (Fla.1982). Reprehensible conduct by a former spouse is not a sufficient basis, standing alone, to justify the award of permanent alimony in a case where rehabilitative alimony is appropriate. ⁶

II. ATTORNEY FEE AWARD.

The trial court awarded Victoria $9,000 as contribution to her attorney fees in this case, based on the disparity in the incomes of Victoria and James. The record supports the trial judge's finding that James had an earned income of $52,000 per year excluding gifts from his parents which totalled $25,000 per year, and Victoria had only $15,000 per year. The record in this case is minimal, consisting primarily of Victoria's testimony. This was apparently because James elected not to appear. The record also establishes through expert witness testimony adequate to support the trial judge's finding that $11,000 (at least) would constitute a reasonable fee for Victoria's attorney in this case. Victoria's counsel and witness established that her trial attorney spent 73.67 hours on the cause, up to the time the final hearing began, and that a reasonable rate of compensation was $150 per hour.

However, the trial judge also found that this case was appropriate for the application of the lowest lode star multiplier of 1.5, Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985), holding modified, Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), which increased the reasonable attorney fee to $16,500. The trial judge cut back on the full award, and required James to contribute only $9,000 of the total reasonable fee. We do not know what ratio or formula the trial judge used to calculate James' required contribution, but no cross appeal has been filed in this case by Victoria.

Consideration of the lode star multiplier in this case was erroneous. Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990); Pirino v. Pirino, 558 So.2d 171 (Fla. 5th DCA 1990): Faust v. Faust, 553 So.2d 1275 (Fla. 1st DCA 1989). See also, Hoopes v. Hoopes, 525 So.2d 1015 (Fla. 4th DCA 1988). The expert witness testified that Rowe permits a trial judge to apply a multiplier factor in domestic cases, even though no contingency fee arrangements are involved. The Florida Supreme Court has since held multipliers should not be employed in domestic cases unless there are exceptional or extraordinary circumstances. Quanstrom. None were shown here other than that the case was hard fought by competent counsel on both sides, and that the case involved an interstate child custody proceeding in a different state, presided over by an uncooperative judge.

Accordingly, we remand this cause to the lower court to determine an appropriate length of time during which to award the former wife rehabilitative alimony and to determine a reasonable attorney fee for the former wife's attorney, without application of the lode star factor. In its discretion, the trial judge may take additional testimony on both issues.

REVERSED in part; REMANDED.

DAUKSCH, J., and MILLER, J.D., Associate Judge, concur.

1 In the prior judgment, the trial court reserved ruling on the calculation method and the amount James would be required to contribute to Victoria's attorney's fees. Similarly, it reserved jurisdiction as to the method and amount of rehabilitative and/or permanent alimony to be paid by James to Victoria. These sums were set in the supplemental final judgment, which was timely appealed. We agree with appellant that the appeal is timely. See Clearwater Federal Savings and Loan Ass'n. v. Sampson, 336 So.2d 78 (Fla.1976); Morand v. Stoneburner, 516 So.2d 270 (Fla. 5th DCA 1987), rev. denied, 525 So.2d 879 (Fla.1988).

2 See Pirino v. Pirino, 549 So.2d 219 (Fla. 5th DCA 1989).

3 Compare, e.g., Driscoll v. Driscoll, 547 So.2d 1247 (Fla. 4th DCA 1989) (court abused its discretion in failing to award fifty-seven year old wife permanent periodic alimony at conclusion of five year marriage where wife, by entering into the marriage, had given up alimony payments due from...