Tronconi v. Tronconi, 81-525

• Decision Date: 01 December 1982
• Docket Number: No. 81-525,81-525
• Citation: 425 So.2d 547
• Parties: Felicia M. TRONCONI, Appellant, v. Francis Joseph TRONCONI, Appellee.
• Court: Florida District Court of Appeals

Page 547

425 So.2d 547

Felicia M. TRONCONI, Appellant, v. Francis Joseph TRONCONI, Appellee.

No. 81-525.

District Court of Appeal of Florida Fourth District.

Dec. 1, 1982.

Rehearing Denied Feb. 9, 1983.

Ira Marcus, P.A., Fort Lauderdale, for appellant.

Philip Michael Cullen, III, Fort Lauderdale, for appellee.

Melvyn B. Frumkes and Cynthia L. Greene of Law Offices of Melvyn B. Frumkes, P.A., Miami, Stephen W. Sessums and Miriam E. Mason, of Law Offices of Stephen W. Sessums, P.A., Tampa, amicus curiae on behalf of The Family Law Section of The Florida Bar.

EN BANC.

The wife here appeals the trial court's equitable distribution of two parcels of Florida real estate located in Pompano Beach and Lake Placid, Florida and another in the Bahamas. All of these properties were held as tenants by the entirety and purchased during the marriage, largely with joint funds. ¹ We affirm.

During this marriage, which produced no children and lasted for twenty-six years, both the husband and wife worked full time. At the time of the hearing, both were sixty years old. The wife was in fairly good health and still working, while the husband was in poor health with ulcers and a mental disorder, unable to work then or in the foreseeable future, with unemployment compensation constituting his only source of regular income. ²

Within this factual framework, the trial judge found that "neither party had established a special equity in any of the real property," that "physical partition of the realty would not be in the best interests of either party" and that his announced disposition of the property would result in an "equitable division of the parties' assets."

Pursuant thereto, he awarded a portion of the real estate holdings to the one and the remainder to the other in what the record supports as an approximately equal division of the equities involved. No periodic or rehabilitative alimony was awarded. To all of this, the wife takes great exception.

In affirming the trial judge, we adopt the doctrine of equitable distribution and revisit Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981). In Sangas, we were dealing with what was essentially an inequitable and improper distribution favoring one spouse over the other in a manner not justified by the facts of the case. It is true that in Sangas we opined that Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), did not create a totally new vehicle for the division of property; however, we now think, after further analysis of Canakaris and its progeny, that although the Supreme Court continues to quote traditional concepts in the vernacular of lump sum, periodic and rehabilitative alimony, we believe it has adopted the doctrine of equitable distribution de facto if not de jure. The Canakaris decision uses the word "equity" in its various forms thirteen times. "Justice," "justified" or "justification" appears twelve times and the phrase "equitable distribution" twice. In our view the totality of the language there employed, coupled with the accompanying dissertation on the trial judge's "broad discretion" obviously permits a trial judge to make a distribution of assets acquired during the marriage in a manner which is just and equitable: ergo, make an equitable distribution.

There is an important new twist which emerges from Canakaris. One of the two basic criteria traditionally employed to support lump sum awards has been deep sixed and is never once referred to in the opinion in the context of lump sum. "Ability" to pay remains but "need" has been excised and instead the word "justification" substituted. For emphasis, we quote from the opinion:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability .... At 1201.

It is this substitution that appears to make the whole equitable distribution doctrine viable. We could never before have said that the wife "needs" Blackacre and the husband "needs" Whiteacre, each of equal value. Nevertheless, we can "justify" such a distribution and we readily do so regarding the real estate sub judice. In sum, when speaking of the former traditional requirements, we were required to find need plus ability to respond, whereas under Canakaris we no longer have to find need to support lump sum awards. Instead, the necessary coupling is justification and ability to respond.

Subsequent cases appear to confirm our conclusion. In Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), the court spoke of providing "an equitable share of the assets of the parties accumulated during their marriage, as distinguished from her need for support ... if it is found necessary to compensate the wife for her contribution to the marriage" (emphasis supplied). Subsequently in Robinson v. Robinson, 403 So.2d 1306 (Fla.1980), the court held that, "awarding lump sum alimony to ensure equitable distribution of property acquired during the marriage is within the trial court's discretion so long as there is some justification for the award and the paying spouse is financially able to make the payment" (emphasis supplied). Even more recently in Hill v. Hill, 415 So.2d 20 (Fla.1982), the Supreme Court again spoke approvingly of the "fair division of property acquired during the marriage."

We stress that this opinion applies only to assets acquired during the marriage and we specifically do not address its applicability to assets acquired by inheritance or gift or whether it might encompass the value of a personal professional degree. Nor do we suggest that an equitable distribution must be carried out automatically in every case. Other more traditional methods are still available in the sound discretion of the trial judge. Further as Canakaris notes, an "equitable" distribution does not require an "equal" distribution. The two words are not synonymous. When an equitable distribution is invoked it may well take the place of lump sum alimony or any special equity. However, any such equitable distribution may be influenced by factors indicating the presence of a special equity or any concomitant award of periodic alimony.

He or she who seeks an equitable distribution should set it forth in the pleadings. However, in the interests of justice, we make this suggestion prospective only. Moreover it should be remembered that equitable distribution can involve an award of the wife's property to the husband as well as vice versa. See Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981); Ingram v. Ingram, 379 So.2d 955 (Fla.1980).

As to the standards to be used to effectuate equitable distribution, the court in Canakaris contented itself with quoting the last paragraph of Section 61.08, Florida Statutes (1979) which says:

The court may consider any other factor necessary to do equity and justice between the parties.

However we see no reason why the provisions of subsection (2)(a) through (f) of the same section should not also be applicable to an equitable distribution and we have considered them relative to our conclusion in this case. It is tempting to enumerate a more complete laundry list of guidelines. Perhaps however this is better left to the legislature or our Supreme Court. Meanwhile, we note the proposed legislation being pushed by the Family Law Section of the Florida Bar which sets forth guidelines which do not appear to be inappropriate. ³

AFFIRMED.

LETTS, C.J., and DOWNEY, HERSEY, DELL and WALDEN, JJ., concur.

BERANEK, J., with whom HURLEY, J., joins, concurs specially with opinion.

GLICKSTEIN, J., with whom HURLEY, J., joins, concurs specially with opinion.

ANSTEAD, J., concurs specially with opinion.

BERANEK, Judge, with whom HURLEY, Judge, joins, concurring in the judgment only:

I concur in the result reached by the majority but on different grounds. Under the majority view of Canakaris, the award here can be sustained as a "justified" award of lump sum alimony. In Sangas v. Sangas, supra, we held that equitable distribution was not a totally new vehicle for the division of property. The majority now seems to recede from that holding. If we are not receding, there is obviously no reason to consider this case en banc. See Rule of Appellate Procedure 9.331. We are apparently now holding equitable distribution to be a totally new vehicle, but I am not at all certain how it differs from the "more traditional" concepts of alimony and special equities. Strangely, the guidelines suggested by the majority opinion are a simple reference to Section 61.08, Florida Statutes (1979), which is the statute governing awards of alimony. If the guidelines are the same, what is the difference? We now know that lump sum alimony has been redefined by abrogating "need" and substituting "justification." I am unable to distinguish between equitable distribution and the newly defined "justified lump sum alimony." I submit that equitable distribution is simply a goal or an end--which is to be achieved through the avenues of alimony and special equities. Canakaris only broadened the definitions of these avenues and also broadened the discretion of the trial judge in achieving the laudable goal of an equitable division or distribution.

I disagree with the majority view that a trial judge has discretion to employ the "more traditional" concepts (alimony and special equity) to the exclusion of equitable distribution or to use equitable distribution and ignore alimony and special equities. The uncertainty created by this approach will be comfortable for the courts but further cloud an already murky situation for the litigants.

GLICKSTEIN, Judge, with whom HURLEY, Judge, joins, concurring specially:

Although I join in the result and agree with much of what is said in the majority opinion, I am troubled by the following language:

In affirming the trial judge, we adopt the doctrine of equitable distribution and revisit Sangas...