Thomas v. Thomas

• Decision Date: 16 October 1990
• Docket Number: No. 89-1926,89-1926
• Citation: 571 So.2d 499
• Parties: 15 Fla. L. Weekly D2622 Margie Ann THOMAS, Appellant/Respondent, Cross-Appellee, v. Randell D. THOMAS, Appellee/Petitioner, Cross-Appellant.
• Court: Florida District Court of Appeals

Page 499

571 So.2d 499

15 Fla. L. Weekly D2622

Margie Ann THOMAS, Appellant/Respondent, Cross-Appellee, v. Randell D. THOMAS, Appellee/Petitioner, Cross-Appellant.

No. 89-1926.

District Court of Appeal of Florida First District.

Oct. 16, 1990.

Rehearing Denied Jan. 18, 1991.

Michael A. Morris and John L. Myrick of Myrick & Davis, P.A., Pensacola, for appellant.

Michael G. Allen of Eddins, Allen, Cooper & Owens, Pensacola, for appellee.

JOANOS, Judge.

The former wife in this dissolution of marriage proceeding appeals the financial and property distribution aspects of the final judgment. The former husband cross-appeals the award of attorney's fees to the wife's counsel. The specific issues presented for review are: (1) the failure to award adequate lump sum alimony or permanent periodic alimony to the wife, (2) the determination that Randell Thomas Glass Company stock constituted the husband's separate asset not subject to equitable distribution, (3) the failure to set aside the property settlement agreement entered into in connection with the dissolution of the parties' first marriage to each other, and (4) an award of attorney's fees unsupported by contemporaneous time records. We affirm the issue raised on cross-appeal, and reverse and remand the issues raised on the main appeal for further proceedings.

The parties were first married in 1956. The wife was sixteen and the husband was in the Air Force. The wife completed high school after the marriage, and has had no further education or technical or vocational training. During the first years of the marriage, the husband left the Air Force briefly, then signed on for four more years. Between 1955 and 1974, the parties' three sons were born, and the family moved frequently. The wife did not work outside the home for the first eighteen years of the marriage.

By 1974, the parties were living in Pensacola. The husband developed lung problems, and a doctor told him he would never be able to work again. The wife then went to work as an office manager for an air conditioning company. In 1978, the husband started his own glass business, operating out of the home. From that point on, the wife worked in the family corporation, which was named Randell Thomas Glass Company, Inc.

In 1984, the parties entered into a buy-sell agreement with Harmon Glass of Florida, Inc., whereby Harmon Glass bought fifty-five per cent of the stock of Randell Thomas Glass Company, Inc., paying a purchase price of $84,644. At the same time, the husband entered into an employment agreement with Harmon Glass. Afterwards, the husband bought the wife's one-half interest in the shares of Randell Thomas stock held by the parties.

On May 31, 1985, the parties' first marriage was dissolved. The final judgment incorporated a property settlement agreement entered into by the parties. Neither party was represented by counsel during the first dissolution proceeding. The parties gave conflicting accounts concerning how the property was divided. The husband's testimony establishes that he discussed the matter with an attorney and with his accountant, before he wrote out a division of the property. His testimony indicates that, because the wife insisted she needed some income, he gave her a note receivable in exchange for the furniture in the marital home. The husband also testified that he received the total cash payment from Harmon Glass prior to the 1985 divorce, and that he bought a lot on North Palafox Highway with $22,000 of the Harmon Glass money. He said the remainder of the cash was in the bank when the parties divided their property, and that they agreed he would keep the cash, and that the cash was taken into consideration in working out the division of property. The 1985 property settlement agreement contains no reference to these funds. The husband's testimony reflects that at the time of the 1985 divorce, he used $5,000 of the Harmon Glass stock purchase funds to pay to the wife as a down payment on her one-half interest in the forty-five percent ownership the parties held in Randell Thomas Glass Company. He executed a promissory note to the wife, providing for annual payments of $10,000, said payments due each March. The husband used the remainder of the stock purchase proceeds, together with borrowed funds, to build the new office and shop building located on North Palafox Highway, which facility is leased to Harmon Glass.

The wife testified that up until 1984, the parties were totally involved in the business together, and discussed everything. In 1984, the husband began shutting the wife out of involvement in the business. The wife's testimony reflects that in March 1985, the husband said they should divorce. After the husband spoke to an attorney, the wife obtained some legal forms which she typed at the husband's direction. The wife said she was not forced to sign the settlement agreement, explaining that the husband told her she could have the house and car, and that the value of those assets was equal to the value of the parties' other assets, i.e., real property and stock. Although the wife received the marital home in connection with the former property settlement agreement, the husband continued to reside there, rent-free.

The wife also testified that during the preparation of the papers for the 1985 dissolution, she inquired about the money paid by Harmon Glass for the stock purchase, and the husband told her the cash was all gone. A year or more after the divorce, the wife found a bank statement which indicated a large portion of the money was in the bank at the time of the prior dissolution. The wife also stated that prior to the first dissolution, at the husband's insistence, she went to see the husband's counselor. The counselor told her the husband was a walking time bomb, and she had better get what she could and leave before he exploded.

The parties reconciled shortly after the May 31, 1985, dissolution of their first marriage, and lived together for a period of time before remarrying on May 8, 1986. On November 7, 1987, during the parties' second marriage, Randell Thomas Glass bought S & S Glass, a Fort Walton Beach business. The husband paid forty-five percent of the purchase price for a forty-five percent interest in S & S Glass. To make the investment, the husband obtained a bank loan in the amount of $110,000, using the North Palafox Highway property as security for the loan. The testimony of Mr. Inman, vice-president of Harmon Glass, established that during the second marriage, the husband received a base salary of $36,500; for the first eleven months of 1988, he was reimbursed $6,600 for travel and entertainment expense; his 1988 bonus was projected as $7,000 to $8,000; and his 1988 distribution of profit was projected as $30,000 to $40,000. In Mr. Inman's opinion, the husband's employment agreement with Harmon Glass incorporates S & S Glass.

When the parties divorced in 1985, they closed their joint checking account, and the husband opened a personal checking account. When the parties remarried in 1986, the wife's name was added to the husband's personal checking account, but the parties' money market accounts remained separate. The husband signed a listing agreement for the marital home owned solely by the wife, and acknowledged that a joint financial statement dated June 30, 1987, listed husband and wife's assets as the building on North Palafox Highway, the residence, and two vacant lots.

In the summer of 1988, the husband told the wife he was going to file for divorce. The husband also acknowledged that after consulting his attorney about a divorce, on his attorney's advice, he tendered past-due payments owed to the wife on the promissory note executed in connection with the first dissolution proceeding. These payments were refused. The husband filed a petition for dissolution of marriage. The wife filed an answer and counterpetition, seeking alimony, equitable division of property, and abrogation of the final judgment entered May 31, 1985.

In the final judgment entered June 29, 1989, the trial court ruled that the May 31, 1985, final judgment of dissolution of marriage was valid and binding, that the property settlement agreement entered into at that time was valid, and that the property awarded to each party at the time of the first dissolution of marriage was separate property for distribution purposes in the instant divorce. The court found no authority to set aside the agreement, and further found no authority to suggest that reconciliation of parties after a valid final judgment of dissolution of marriage abrogates the property settlement aspects of that decree. Accordingly, the counterpetition to set aside the final judgment or property settlement agreement was denied. The trial court denied the wife's claim for permanent alimony, expressly finding that this had been a three-year marriage. In a separate order entered September 21, 1989, the trial court directed the husband to pay the wife's counsel an attorney's fee of $10,000, plus costs of $906.50.

The first issue concerns the trial court's refusal to award any form of alimony to the wife. It is well settled that the primary criteria to consider in an alimony determination are the needs of one spouse and the ability of the other spouse to meet those needs, taking into consideration the parties' shared standard of living during the marriage. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Sisson v. Sisson, 336 So.2d 1129 (Fla.1976); Askegard v. Askegard, 524 So.2d 736, 737 (Fla. 1st DCA), review denied, 536 So.2d 243 (Fla.1988); Lutgert v. Lutgert, 362 So.2d 58, 60 (Fla. 2d DCA 1978), cert. denied, 367 So.2d 1125 (Fla.1979). In other words, "the purpose of permanent periodic alimony is to provide the needs and necessities of life to a former spouse as they were established during the marriage of the parties." Canakaris, 382 So.2d at 1201; Allison v. Allison, 491 So.2d 1201,...