Turner v. Turner

• Decision Date: 20 April 1988
• Docket Number: No. BT-153,BT-153
• Citation: 13 Fla. L. Weekly 971,529 So.2d 1138
• Parties: 13 Fla. L. Weekly 971 Diane Dally TURNER, Appellant, v. Filo Harris TURNER, Jr., Appellee.
• Court: Florida District Court of Appeals

Page 1138

529 So.2d 1138

13 Fla. L. Weekly 971

Diane Dally TURNER, Appellant, v. Filo Harris TURNER, Jr., Appellee.

No. BT-153.

District Court of Appeal of Florida,

First District

.

April 20, 1988.

Charles J. Kahn, Jr. of Levin, Warfield, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellant.

James D. Swearingen of Harrell, Wiltshire, Stone & Swearingen, Pensacola, for appellee.

JOANOS, Judge.

The wife appeals the final judgment of dissolution of marriage, raising three issues for our review: (1) the trial court's finding that the husband's assets were not subject to equitable distribution, (2) the trial court's failure to award lump sum alimony to the wife, and (3) the trial court's failure to provide findings of fact with regard to the denial of equitable distribution. We reverse and remand on point three, but find the other issues merit some discussion.

The parties were married December 27, 1958, when the wife was twenty-one and the husband was thirty-seven. It was the first marriage for both. Five children were born of the marriage, all of whom had attained majority at the time of the final hearing. On July 29, 1986, the wife filed a petition for dissolution, together with an affidavit stating that she was unable to fill out a financial affidavit because she had no knowledge of the financial situation of the parties.

The record reflects that after her graduation from high school, the wife worked briefly, first as a sales clerk, and then as a switchboard operator. During the parties' 28-year marriage, the wife did not work outside the home. It is undisputed that during the marriage the wife was not privy to knowledge of the husband's financial position. The husband provided grocery money to the wife on a weekly basis, but otherwise retained control of the family finances. The wife did not know the amount of the husband's income, the amount of the house payment, the amount of the utility bill, or any of the other details regarding the family's finances. Moreover, the wife was without charge account or check-writing privileges, so that, with the exception of groceries, the husband made virtually all purchases. In addition, there was testimony that the husband regularly signed the wife's name to the parties' joint tax returns, and held the wife's power of attorney.

The information concerning the husband's finances was provided by the husband and his brother. In 1957, the husband's family (his father, mother, brother, sister and the husband) formed 426 Corporation. The corporation was wholly owned, in equal shares, by the family members. The husband presently owns 20.23% of the corporation, and his ownership interest in 426 Corporation and its enterprises has remained substantially the same throughout the marriage.

At the time of the marriage, the husband was employed as parts and service manager for the automobile dealership owned by his father. The dealership was situated on property owned by 426 Corporation. In addition to the dealership property, the corporation owns property which is leased for use as a used car lot, a shopping center, 1200 acres of timberland originally held by Lazy B Ranch, and acreage in Alabama. In 1986, the entity known as Lazy B Ranch was dissolved and title to the tract of land is now held by 426 Corporation, the husband, the husband's brother, and one other individual.

In December 1986, 426 Corporation sold the automobile dealership property for $800,000. Although the evidence regarding value of all of these properties at date of acquisition is not entirely clear, it is undisputed that, without exception, the assets substantially increased in value during the marriage.

In addition to his 20.23% interest in his family-owned enterprises, the husband also formed an individually owned business known as White Sands Engineering Company. This company was primarily a consulting business, but the husband also used his company for speculation in various commodities. The husband said he had drawn an unspecified amount from White Sands Engineering in the past, but had taken only $400 from the company in the year preceding the hearing. In 1985 and 1986, the husband wrote a number of checks from his personal account to White Sands Engineering Company. The husband's tax returns reflected no income from White Sands. He explained that he wrote checks as large as $1,000 to White Sands to pay personal expenses, but acknowledged there was no real reason to pay personal expenses in this manner, rather than through his personal account.

According to the husband, his time during the marriage was primarily devoted to the family automobile business, from which he drew a monthly salary. The dealership was sold in 1977, and since that time the husband's income has been derived from 426 Corporation properties and now social security benefits. In addition to his work with the automobile dealership, the husband said he worked as a consultant, and worked on behalf of 426 Corporation as an analyst, maintenance supervisor, and supervisor of operations.

According to the husband and his brother, inflation is the major factor in the substantial increase in value of the assets acquired by 426 Corporation and Lazy B Ranch during the course of the parties' marriage. However, the brother agreed that factors other than inflation played some part in the enhanced value of these assets. The husband conceded that his most recent financial statement, prepared in 1981, reflected his net worth as $900,000. The husband explained the figure was inflated, as the statement had been prepared in connection with a loan. The husband also acknowledged that he had $17,000 in an A.G. Edwards brokerage account that had not been included on his financial affidavit. This $17,000 was the amount remaining of a $25,000 inheritance. In addition, the husband had two paid-up life insurance policies, but the cash surrender value was not clearly established. At the time of the final hearing, based on figures provided by the husband's brother, the husband's net worth was $424,000, exclusive of his interest in the marital home.

In contrast, the wife had no assets other than her interest in the marital home, no cash, and no demonstrated earning ability. At one point during the marriage, the wife's mother gave her $2,000, which she spent on clothes for herself and the children. In addition, the wife's mother gave her $1,700 with which to pay attorney's fees incurred in the dissolution. Although the wife's counsel advised that it might be necessary to obtain an accountant to clarify the complex nature of the husband's financial interests, there is no indication in the record that this step was taken.

In the final judgment, the trial court awarded the wife a 1986 Chevrolet Caprice, one-half of the sale price of the marital home, and $1,000 per month permanent alimony. The trial court found that with the exception of the marital home, all other property owned by the husband was not marital property subject to equitable distribution.

The final point raised by the wife concerns the trial court's failure to provide findings of fact with respect to the equitable distribution issue. This court has held that an appellate court may, when it is necessary in order to review a case, "require explicit findings with respect to disputed facts that form the factual basis on which a trial court undertakes to award equitable distribution." Barrs v. Barrs, 505 So.2d 602, 604 (Fla. 1st DCA 1987). See also Ashe v. Ashe, 509 So.2d 1146, 1148-1149 (Fla. 1st DCA 1987); DePoorter v. DePoorter, 509 So.2d 1141, 1146 (Fla. 1st DCA 1987). In a similar vein, the Fourth District has required findings where, as in the instant case, the trial court refused to provide equitable distribution. Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987); Smith v. Smith, 487 So.2d 339 (Fla. 4th DCA), review denied, 496 So.2d 143 (Fla.1986).

In this case, the trial court held summarily that with the exception of the marital home, all other property owned by the husband is not marital property subject to equitable distribution. Our examination of the record inclines us to a different view. We recognize that the trial court must be affirmed as to the facts if there is competent substantial evidence to support its findings. The record does reflect that for the most part, the husband's assets were acquired through inheritance or gift from his father or through the family corporation. However, there is what appears to be undisputed evidence that the enhanced value of the husband's assets can be attributed in some measure to the husband's efforts during the marriage. The record also reflects that on at least one occasion, the husband expended marital funds to acquire assets or to increase the value of an asset. The trial court's summary determination of the equitable distribution issue precludes meaningful review. We, therefore, reverse and remand. On remand the trial court is directed to reconsider the equitable distribution issue, taking such additional evidence as may be necessary, and to enter an order containing specific findings on this issue in sufficient detail to enable a reviewing court to understand what has been determined and why.

Equitable distribution is a mechanism developed by the Florida courts to achieve a fair division of marital assets acquired during the marriage. Marital assets are those assets which have been created by the parties' work efforts, services, or earnings. Pardue v. Pardue, 518 So.2d 954, 955 (Fla. 1st DCA 1988); Keller v. Keller, 521 So.2d 273, 276 (Fla. 5th DCA 1988); Szemborski v. Szemborski, 512 So.2d 987, 989 (Fla. 5th DCA 1987), review denied, 520 So.2d 586 (Fla.1988); Wright v. Wright, 505 So.2d 699, 700 (Fla. 5th DCA 1987). Thus, an equitable distribution determination should recognize the enhanced value of assets owned solely by one spouse prior to the marriage, insofar as the increase in value can be attributed to...