Ugarte v. Ugarte, s. 91-401

• Citation: 608 So.2d 838
• Decision Date: 22 September 1992
• Docket Number: Nos. 91-401,91-811,s. 91-401
• Parties: 17 Fla. L. Week. D2217 Thomas R. UGARTE, et al., Appellants, v. Sharon UGARTE, Appellee. , and 91-1847.
• Court: Court of Appeal of Florida (US)

Page 838

608 So.2d 838

17 Fla. L. Week. D2217

Thomas R. UGARTE, et al., Appellants, v. Sharon UGARTE, Appellee.

Nos. 91-401, 91-811, and 91-1847.

District Court of Appeal of Florida,

Third

District.

Sept. 22, 1992.

Rehearing Denied Dec. 22, 1992.

Stanley Jay Bartel, Miami, for appellants.

William A. Daniel, Jr., Mark A. Gatica, Hertzberg & Malinski, Miami, and Deborah Marks, North Miami, for appellee.

Before NESBITT, FERGUSON and COPE, JJ.

PER CURIAM.

In these consolidated cases, the former husband appeals the final judgment of dissolution of marriage which made various awards of alimony and support to the wife, the court's award of attorney's fees and costs, and two orders finding him in civil contempt for nonpayment of support obligations. We relinquished jurisdiction to the lower court to conduct a hearing for the purpose of setting forth the amount of income it was imputing to the former husband and the source of that income. Seilkop v. Seilkop, 575 So.2d 269 (Fla. 3d DCA1991); Hogle v. Hogle, 535 So.2d 704 (Fla. 5th DCA1988). Finding that the trial court has complied with this order, and having reviewed the evidence and the trial court's determinations, we affirm the final judgment of dissolution and the awards made therein and the awards for fees and costs. We do, however, reverse the orders for incarceration for civil contempt.

This former husband's chief claim of error is that the trial court erred in the amount of alimony and child support it ordered. He claims he is not appealing the asset distribution, which in fact awarded him his professional association, sole ownership of several properties, and $112,400 in his pension fund, but he is appealing only the $6,500 in monthly support awarded to his wife and three children.

The recent case of Hamlet v. Hamlet, 583 So.2d 654 (Fla.1991) clearly establishes that the type of piecemeal review requested is prohibited. Upon review, it is our obligation to consider the overall scheme of distribution devised by the trial court, to achieve equity between the parties. Id. at 656. Here, the former wife was awarded the marital home, $25,000 from the husband's pension fund, and alimony of $1,500 per month. The trial court also ordered the former husband to pay child support in the amount of $1,000 per child per month, plus private schooling and the children's insurance expenses. It is obvious that the criteria set out in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), and repeated in Hamlet, 583 So.2d at 656, for the distribution of assets and the award of permanent periodic alimony, including review of the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates, were all carefully considered in the trial court's award. The court found that the wife had not worked outside the home during this twenty-year marriage and that the couple had enjoyed a lavish life-style during the marriage.

It is also clear that the income-generating properties acquired during the marriage were allocated to the husband, and it was within the trial court's discretion to consider that fact in making its award of permanent periodic alimony. Hamlet, 583 So.2d at 656 citing Patterson v. Patterson, 315 So.2d 104 (Fla. 4th DCA1975), cert. denied, 330 So.2d 20 (Fla.1976).

The husband claims he simply does not have the income to meet the support obligations ordered. The trial court rejected this contention and concluded that it was easily within the husband's ability to meet the ordered payments. In Seitz v. Seitz, 471 So.2d 612 (Fla. 3d DCA1985), we observed:

Where the head of a family by supplying money over a period of years, establishes and maintains a standard of living on a certain financial level, it may be inferred, in the absence of a sufficient showing to the contrary, that he has a source of income or financial status sufficient to enable him to continue to maintain his spouse in substantially the same manner of living.

Id. at 614, citing Klein v. Klein, 122 So.2d 205, 207 (Fla. 3d DCA1960).

The trial court in the instant case found income available to the former husband in excess of $150,000 per year from his professional association, and there was sufficient evidence in the record to support this determination. Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth. See Jane L. Estreicher & Gerald I. Kornreich, Imputing Income: Proving the Unprovable, Fla.B.J. April 1985, at 56; see also Garfield v. Garfield, 58 So.2d 166 (Fla.1952); McRae v. McRae, 52 So.2d 908 (Fla.1951); Anderson v. Anderson, 451 So.2d 1030 (Fla. 3d DCA1984); Bucci v. Bucci, 350 So.2d 786 (Fla. 3d DCA1977); Preston v. Preston, 216 So.2d 31 (Fla. 3d DCA1968), cert. denied, 222 So.2d 753 (Fla.1969); Farbman v. Farbman, 208 So.2d 648 (Fla. 3d DCA1968).

In the instant case, the gross income of the professional association of this self-employed optometrist was $468,000 in 1984, $489,000 in 1985, $504,000 in 1986, $584,000 in 1987 (the dissolution case was filed in 1987), $474,000 in 1988, $481,000 in 1989 and $447,000 in 1990. There was evidence that prior to filing for dissolution, the former husband was drawing around $40,000 a month from the professional association, but was giving the wife between $15,000 and $17,000 in cash per month to deposit in the family checking account to pay for the family's personal expenses. While there was some evidence that certain physical disabilities prohibited the former husband from achieving past earnings levels, there was also ample evidence of the prior stream of income and evidence that immediately preceding and subsequent to the filing for dissolution, assets had been shifted, resulting in a significantly lower recorded income for the husband's professional association. Also, evidence was submitted that large salaries were being paid to several of the former husband's relatives employed at the professional association, where payment at the going rate could have resulted in a substantial increase in the former husband's income level.

The trial court found that the professional association had provided income which until the dissolution had permitted the accumulation of "race horses, condominiums, pension plans, an expensive residence, an office building and numerous other assets." Additionally, after the hearing held on the imputed income, the court's amended judgment noted:

The court was also impressed with the testimony of the Former-Husband that he was being stripped to $500 month total income net for his own living expenses. And yet there was testimony that he was paying cash in 50 and 100 bill denominations for himself and companions on travel trips to the Caribbean and South America for air, hotel, food, etc. Even assuming subsequent reimbursement as business expenses from the P.A. or from Seminars or Hospitals for the Husband, there is no explanation for the costs of the companion or the source...