VALENTINE v. SICKLE, 2D09-1634.

Decision Date28 July 2010
Docket NumberNo. 2D09-1634.,2D09-1634.
Citation42 So.3d 267
PartiesHarold Elliott VALENTINE, Appellant, v. Karen Lee VAN SICKLE, Appellee.
CourtFlorida District Court of Appeals

OPINION TEXT STARTS HERE

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

David A. Sharp, Clearwater, for Appellant.

Mary Ellen Borja of Mary Ellen Borja, P.A., Clearwater, for Appellee.

WALLACE, Judge.

Harold Elliott Valentine (the Husband) appeals the final judgment that dissolved his marriage to Karen Lee Van Sickle (the Wife). On appeal, the Husband challenges the amount of the award of permanent periodic alimony, the award of retroactive alimony and retroactive child support, the classification of his personal injury settlement as a marital asset, and the equitable distribution of the marital assets. There is no cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.

I. INTRODUCTION

The parties were married in 1989. They had one child, a daughter, who was born in 1993. The Husband worked as an underwriter in the mortgage banking industry, and his occupation required frequent travel. The Wife is a college graduate with a major in finance. She had an active real estate license and was employed in a salaried position in a real estate office.

The parties separated in April 2006. The Husband filed a petition for dissolution of marriage in June 2007, and the final judgment of dissolution of marriage was entered on December 19, 2008. In the final judgment, the trial court ordered that the parties share parental responsibility for their minor daughter and directed that the child's principal physical residence would be with the Wife. The trial court also awarded child support and permanent periodic alimony to the Wife and made these awards retroactive to June 2007, the month in which the petition for dissolution of marriage was filed.

At trial, the parties disputed whether the proceeds of the Husband's personal injury settlement were a marital or a nonmarital asset. Thus, before proceeding with the equitable distribution of the parties' assets, the trial court was required to classify the Husband's personal injury settlement. The Husband had previously been injured when he drank a corrosive substance contained in a beverage purchased at a fast food restaurant. In July 2005, the Husband received a check for $130,729.38 representing the net proceeds from the settlement of his claim. The Wife received a separate amount of $1000 to settle her claim for loss of consortium. For reasons explained below, the trial court classified the proceeds of the Husband's settlement as a marital asset. In addition to the classification of the Husband's settlement, the equitable distribution issues that the trial court confronted were complicated by the parties' dispute concerning the valuation of two parcels of real property and abundant evidence of the Husband's extravagant spending.

In the discussion that follows, we will first take up the issue of the award of permanent periodic alimony to the Wife. The discussion of this issue will require an examination of the evidence concerning the parties' respective incomes. Second, we will briefly treat the related issue of the trial court's decision to make the alimony and child support awards retroactive to the date of the filing of the petition for dissolution of marriage. Next, we will consider the trial court's ruling that the proceeds of the Husband's personal injury settlement were a marital asset. Finally, we will address the trial court's valuation and equitable distribution of the marital assets.

II. DISCUSSION
A. Permanent Periodic Alimony Award

The trial court ordered the Husband to pay the Wife permanent periodic alimony in the amount of $4000 per month. The Husband challenges the amount of the alimony award on various grounds. We begin our discussion of this issue by reviewing the evidence concerning the parties' earnings.

1. The Husband's earnings

When the parties separated in 2006, the Husband had worked for many years as a contract underwriter in the mortgage banking industry; i.e., he evaluated mortgage loans for their marketability in the secondary market. The Husband typically worked for various companies on temporary contracts. The demands of his work required him to be away from home for extended periods. Thus the Husband's income fluctuated based on the demand for his services and his ability to travel. Because of his out-of-town travel, the Husband generally received a per diem payment for expenses in addition to his contract payments.

The Husband earned approximately $83,400 in 2005 and approximately $86,800 in 2006. In 2007, the year he filed the petition for dissolution of marriage, the Husband became ill and was hospitalized, and he also underwent an elective surgery. As a result, the Husband was out of work for a significant part of 2007, resulting in a substantially reduced income for that year of approximately $24,000. On September 26, 2008, the first day of trial, the Husband submitted his fourth amended financial affidavit. In this affidavit, he claimed monthly earnings, averaged over nineteen months, of $5522, or $66,264 annually. The affidavit also reflected that the Husband received a $1000 monthly per diem. The Husband or his counsel erroneously entered the $1000 monthly per diem amount on the financial affidavit's line for "[m]onthly reimbursed expenses and inkind payments to the extent that they reduce personal living expenses."

In the first part of 2008, the consequences of the refinancing boom that occurred then as a result of historically low interest rates enabled the Husband to work an extraordinary amount of overtime. On some occasions, he worked as many as sixty hours of overtime in addition to forty hours of regular time during the same week. As a result, his income during this period was relatively high. During the first eight months of 2008, the Husband earned an average of $11,113 per month. Annualizing the $11,113 monthly amount produces a figure of $133,356, which is approximately $50,000 more than the Husband had earned historically.

2. The Wife's earnings

When the parties separated, the Wife had been working for several years as an office manager for a real estate office.

Her approximate annual income was $36,700 in 2005, $28,100 in 2006, and $23,300 in 2007. However, shortly before trial, the Wife filed an amended financial affidavit indicating that her salaried position had been terminated but that she continued working for her employer as a real estate sales associate on a commission-only basis. In her amended financial affidavit, the Wife asserted that her gross monthly income was $365.

As previously noted, the Wife is a college graduate with a major in finance. She does not suffer from any physical or mental disabilities. The Wife worked during the marriage and contributed to the household income, albeit in a lesser amount than the Husband. The Wife had an active real estate license and was employed at a successful real estate office that is a franchisee of a nationwide organization. To support her claim of a sudden drastic decrease in income, the Wife offered in evidence at trial a letter from her employer dated June 25, 2008, and addressed "To Whom It May Concern." The letter stated that the Wife had been laid off from her salaried position as of December 15, 2007, and that any income she had received after that date was commission income. The Husband objected to the letter as hearsay, but his objection was overruled, and the letter was received in evidence. Under the circumstances, the convenient conjunction of the Wife's sudden layoff and the dissolution proceeding raised a question concerning whether the change in the Wife's employment status and loss of income was voluntary.

3. The trial court's findings

The trial was held on September 26, 2008. At trial, the Wife's counsel stated that he calculated the Husband's actual income in 2008 to be "$11,113 . . . per month and then I added to that $1,000, which was the amount on his Financial Affidavit that he said he receives in per diem untaxed." The Wife's counsel apparently obtained the $11,113 figure by averaging the Husband's gross year-to-date earnings as shown on his pay stub for September 4, 2008 (reflecting pay for the last week of August 2008). The Wife did not present any evidence controverting the Husband's calculations of his nineteenmonth average income. However, the trial court's pronouncement made at the conclusion of the trial suggests that it was swayed by the Wife's counsel's arguments concerning the Husband's 2008 income:

As far as alimony to [the Wife], the Court will award $4,000 per month retroactive to the date of the filing of the alimony. In looking at [the Husband's] Financial Affidavit, the Financial Affidavit that he filed with the Court, that shows a gross income of $6,522.

However, the court considers that [the Husband] has made considerabl[y] more money than in the year 2008. And we cannot predict, and this Court will not predict what will happen to the future of either [the Husband] or [the Wife's] employment.

We note that the trial court's oral ruling on the alimony issue did not include findings concerning the factors listed in section 61.08(2), Florida Statutes (2006).

The trial court's written findings in the final judgment on the alimony issue were similarly limited. The findings concerning alimony—in their entirety—are as follows:

5. ALIMONY: The Court finds that the Wife has a need and the Husband has the ability to contribute to the Wife's support. The Court will award $4,000 per month permanent periodic alimony retroactive to the date of filing of the Petition for Dissolution of Marriage in June 2007. The Court finds that the statement of income on the Husband's Financial Affidavit is inaccurate and he made considerably more money in 2008. The Court will not predict what will happen to the future...

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