Smith v. Smith, 79-546

• Citation: 378 So.2d 11
• Decision Date: 20 November 1979
• Docket Number: No. 79-546,79-546
• Parties: Beverly A. SMITH, Appellant, v. Donald N. SMITH, Appellee.
• Court: Court of Appeal of Florida (US)

Page 11

378 So.2d 11

Beverly A. SMITH, Appellant, v. Donald N. SMITH, Appellee.

No. 79-546.

District Court of Appeal of Florida, Third District.

Nov. 20, 1979.

Rehearing Denied Jan. 18, 1980.

Sams, Gerstein & Ward and Richard E. Gerstein, Miami, Roger A. Bridges, Coral Gables, for appellant.

Horton, Perse & Ginsberg and Mallory H. Horton, Miami, for appellee.

Before HAVERFIELD, C. J., SCHWARTZ, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.

SCHWARTZ, Judge.

After a 17-year marriage to the president of Burger King which produced three children and which became irretrievably broken because of the husband's involvement with another woman, the appellant Beverly Smith was awarded four years of rehabilitative alimony and required to leave the jointly-held marital home within three months of the dissolution; during that time she was to bear the entire burden of the mortgage and expenses. We reverse these provisions of the final judgment as unsupported by the evidence and the applicable law, and order that the alimony be made permanent and that the wife be granted the right to live in the home until the youngest child reaches 18, with the husband required to bear his half of the necessary charges upon it. We also reverse a portion of the final judgment awarding the husband the entire interest in certain shares of stock which had been held in the names of both parties and which had been purchased by funds not "unconnected with the marital relationship." The other provisions of the final judgment challenged by the wife, including the amounts of alimony and child support, are affirmed.

Donald and Beverly Smith were married in Canada in 1961. He was 21 and attending college in Montana. She was a 19 year old high school graduate with business school training who was employed as a secretary and bookkeeper. She continued to work in that capacity until shortly before she gave birth to the couple's first child, Jeffrey, who is now 13. Mrs. Smith has not been employed since ¹ and has devoted herself instead to being a housewife and raising Jeffrey and the Smiths' other two children, Stacy, now 11, and Darby, who is 7. Mr. Smith, on the other hand, went into the fast food business and prospered. A few years after the marriage, he was hired by MacDonalds Corporation. By 1975, he had risen to become the executive vice president of that company. He was then based in Chicago, where he lived with his wife and children in a lavish twelve room lakeside home.

Early in 1976, Mr. Smith started the process which, as was indisputably established below, led to the breakup of the marriage. He looked up and tracked down his high school girlfriend, a Ms. Brogan, and began a relationship with her which has continued to the present day. In July, 1976, he told his wife he wanted nothing further to do with her and left the family home to live with his girlfriend. Mrs. Smith, who was not then aware of the affair, thereupon sued for divorce in Illinois. While the parties were separated, however, Mr. Smith was offered the presidency of the Burger King Corporation in Miami and decided to attempt a reconciliation. Around Christmas, 1976, he was taken back into the home.

At the beginning of 1977, Smith, having accepted the Burger King position, moved his family to Miami. He remained interested in Ms. Brogan, however, and after a series of arguments on the subject with his wife, he left his home permanently again, to move in with Ms. Brogan in August, 1977. In September, he filed a petition for dissolution in the Dade County Circuit Court, which was met by Mrs. Smith's counterpetition. From the outset, only money has been in dispute. Both parties sought a dissolution, and Mr. Smith has never challenged Mrs. Smith's fitness nor otherwise resisted her request for custody of the children.

The trial testimony demonstrated that Smith commands a salary fully commensurate with his position as the head of one of the nation's most prominent corporations. His gross employment income exceeds $225,000 and his net after taxes is over $150,000 per year. Consistent with that income, he established a life style for his wife and children which, while perhaps not mind-boggling, ² was at least eye-opening. After selling their equity in the Chicago house for $115,000 cash, the Smiths bought, by the entireties, a Miami home for a purchase price of $339,000. The house, which is encumbered by a $200,000 mortgage with monthly payments of approximately $1,800, was evaluated in 1978 at $380,000. It has several bedrooms, a swimming pool, a tennis court, and furnishings worth some $65,000. The children all attend a private school near the home. After they started school in 1977, Mr. Smith allotted $4,800 per month to his wife in order to run the household. In addition, she was granted the use of the usual array of credit cards and charge accounts at local stores.

During the course of the marriage, the founder of the company made gifts of 1350 shares of MacDonalds stock each, to Mr. and Mrs. Smith individually. With the exception of a 1974 automobile, these shares were the only asset she held in her own name. Mr. Smith, however, had individually purchased an interest, worth a substantial sum, in a limited partnership which owns real property in New Jersey. In addition, the parties purchased, as tenants by the entireties, a $45,000 condominium apartment in St. Petersburg, which is occupied by Mr. Smith's parents in return for a monthly payment representing one-third of its fair rental value. The final asset in question in the proceedings below was 50% Of the stock in the corporation which owns the Yellowstone Racquet Club in Montana, which was purchased in April 1975, ³ and was issued to Mr. and Mrs. Smith in both their names. Mrs. Smith had pledged her MacDonalds stock as security for one of the loans which was used to pay the purchase price, and both the down payment and amounts due on the loans were paid by Smith from assets he had earned during the marriage.

Because the wife's objection to evidence of marital misconduct by Either party as irrelevant was overruled, ⁴ the record contains extensive evidence of Smith's affair with Brogan and the direct causal relationship it bore to the termination of the marriage. For the same reason, it also establishes, by her own admission, that Mrs. Smith had sexual relations with others after her husband had already permanently left the Miami home and at a time when, as he himself stated at the trial, he did not care what she did with other men. There was also testimony, denied by Mrs. Smith, that she had admitted a single adulterous incident which occurred while she was still living with her husband. The final judgment, which stated only that there was "evidence" as to the pre-separation incident, did not resolve this conflict, but there is, in any event, no indication whatever that any misconduct of the wife had the slightest effect on the marital relationship or the fact that it had come to an end.

In the final judgment now under review, the lower court, after dissolving the marriage and granting the children's custody to the wife, and after pointedly noting that both parties "have been guilty of adulterious (sic) relationships,"

(a) denied the wife's claim for permanent alimony and awarded $2,000 per month in rehabilitative alimony for four years

(b) granted child support of $75.00 per week per child plus medical expenses and the maintenance of the husband's existing life insurance policies with the children as beneficiaries

(c) provided that

The Husband's claim of a special equity in the marital home and the Wife's claim for Lump Sum Alimony of the marital home or a special equity therein are both denied and the Petitioner/Husband and Respondent/Wife, upon the signing of this Order, shall own the said marital home and the furnishings therein as tenants in common.

The Wife shall have possession of the marital home for a period of three months should she desire, ⁵ however, the Wife shall pay for the maintenance and mortgage on the house for its use during the time she possesses the home. The purpose of this is for the parties to have time in which to make arrangements for the disposal of the marital home and the furnishings therein.

(d) declared the husband the owner of all the Yellowstone Racquet Club stock, thereby effectively striking the wife's interest in the 50% Certificate, on the stated ground that it "was never intended to give the Wife any right, title or interest in the . . . Club."

The wife has challenged these portions of the final judgment. ⁶ As already indicated, we affirm in part and reverse in part.

In his appellate presentation in support of the manner in which the trial court dealt with the wife, the husband points, as did the final judgment itself, to the fact of the wife's adulterous behavior and suggests that this evidence at least partially justifies the result. For two separate reasons, we hold directly to the contrary.

In the first place, as has been demonstrated, the wife's conduct simply had nothing whatever to do with any of the issues properly considered in this case. It was unrelated either to the breakup of the marriage, or to any of the financial relationships and obligations between the parties with which this dissolution proceeding, in common with most, was really concerned. Of course, under the specific provisions of Section 61.08 Fla.Stat. (1975), the court "May consider evidence of (the) adultery" of a spouse seeking alimony or indeed "any factor necessary to do equity . . . between the parties." See Williamson v. Williamson, 367 So.2d 1016 (Fla.1979). But such conduct may not be ipso facto employed as an excuse or device to reduce an otherwise appropriate award when, as here, it clearly appears that it was legally and equitably irrelevant. In several situations, considerations of adultery or other misconduct of, in a word, "fault" are obviously pertinent to the...