Veiner v. Veiner, 84-1426

• Decision Date: 06 November 1984
• Docket Number: No. 84-1426,84-1426
• Citation: 459 So.2d 381
• Parties: Joyce S. VEINER, Appellant, v. Martin I. VEINER, Appellee.
• Court: Florida District Court of Appeals

Page 381

459 So.2d 381

Joyce S. VEINER, Appellant, v. Martin I. VEINER, Appellee.

No. 84-1426.

District Court of Appeal of Florida,

Third District.

Nov. 6, 1984.

Rehearing Denied Dec. 17, 1984.

Elizabeth S. Baker, Coconut Grove, for appellant.

Jonathan B. Alper, Miami Beach, Edward Shack, for appellee.

Before HENDRY, HUBBART and BASKIN, JJ.

HENDRY, Judge.

Ms. Veiner appeals from a post-dissolution order of a successor trial court, pursuant to a remand from this court, which found that she was not entitled to a special equity award because there was no res to which it could be attached, all marital assets other than the marital home having been dissipated. We reverse.

It would serve no purpose to relate any but the most essential elements of the tortured history of this bitterly fought contest. The parties were married for 19 years. There were four children, the last of which has now reached his majority. Appellee obtained his masters and Ph.D. degrees in finance after the parties were married. Appellant holds a teaching certificate but did not work full-time during the marriage. She has continuing physical problems as a result of an automobile accident. The amended final judgment of dissolution found that appellant was entitled to a $32,232 special equity in appellee's assets for her "contribution of substantial monies and efforts which enabled [appellee] to accumulate his fortune." ¹ Other relevant portions of the order awarded appellant child support, divided the marital home and certain of the couple's jointly held securities, and gave her no alimony. Appellee received his ship-chartering business and certain other securities outright.

The former husband appealed the special equity award to this court and appellant herein cross-appealed the denial of alimony, the amount of child support, and the award of certain jointly held property to the husband. This court's opinion, Veiner v. Veiner, 364 So.2d 834 (Fla. 3d DCA 1978) (Veiner I), cert. denied, 376 So.2d 77 (Fla.1979), remanded that part of the judgment which awarded the special equity to the wife, stating that it was error to award a special equity without specifying the res or showing her contributions to the res, affirmed the award of certain jointly held property to the husband and the amount of the child support award, finding that the record supported the trial court's resolution of the disputed questions of fact, and reversed a final order entered by the trial court after the case was on remand. The remand was general; no instructions were given as to what precisely this court wanted the trial court to do with the special equity issue. ² A motion for clarification was denied.

The original appeal in this case pre-dates Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), the landmark case which, along with Ball v. Ball, 335 So.2d 5 (Fla.1976), and Duncan v. Duncan, 379 So.2d 949 (Fla.1980), clarifies for the legal profession the various alimony and property settlement awards available in a dissolution proceeding and when these awards should be utilized. Obviously, lump sum alimony and special equity in marital property were available before Canakaris. Cf. Yandell v. Yandell, 39 So.2d 554, 556 (Fla.1949) (lump sum alimony advisable in those instances where wife may have brought to the marriage, or assisted husband in accumulating property and where husband has the ability to pay the gross award), and Eakin v. Eakin, 99 So.2d 854, 855 (Fla.1958) (special equity in property warranted when facts show a contribution of funds or services above and beyond the performance of ordinary marital duties, citing Heath v. Heath, 103 Fla. 1071, 138 So. 796 [1932] ). Just as obviously, the fact that there were three Florida Supreme Court opinions in four years on the issue of special equity vs. lump sum alimony reflects the confusion surrounding these awards at the trial and district court levels.

It is clear that such uncertainty affected the initial disposition of this case. At a time when it was not at all uncommon to see courts award lump sum alimony because of the "special equities" involved in the case, cf. Yandell, 39 So.2d at 556 ("a lump [sum] award should be made only in those instances where some special equities might require it ...."), the original trial court in this case, using the language of Yandell, found a "special equity" when its reasoning and supporting authority indicated that what it really found was justification for lump sum alimony. In short, the trial court used the wrong term of art. Appellant argues strenuously, as she has throughout all of the proceedings below, that she should not be penalized for the trial court's use of mistaken nomenclature; that even though the trial court was wrong to say that she had a special equity in the former husband's assets, it would have been correct if it had awarded the marital home as lump sum alimony. She is asking for the marital home now as either lump sum alimony or an equitable distribution. Appellee argues just as strongly that the issue of the marital home is res judicata as having been finally disposed of in the amended final judgment.

It is clear that if this case were coming before us for the first time, we could acknowledge that the special equity award was an error but still uphold the trial court by finding that it was really an equitable distribution, Granda v. Granda, 457 So.2d 589 (Fla. 3d DCA 1984), or lump sum alimony, Fell v. Fell, 421 So.2d 790 (Fla. 1st DCA 1982). We would not burden the trial court with a remand merely for a change in nomenclature. Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981). This court had that power at the time of Venier I also, Firestone v. Firestone, 263 So.2d 223 (Fla.1972), but instead remanded with no instructions. ³

It is settled that upon remand with general directions for further proceedings, a trial judge is vested with broad discretion in handling or directing the course of the cause thereafter. City of Pensacola v. Capital Realty Holding Co., Inc., 417 So.2d 687, 688 (Fla. 1st DCA 1982); St. Joe Paper Co. v. Adkinson, 413 So.2d 107 (Fla. 1st DCA 1982). The trial court reacquired jurisdiction over the cause upon the issuance of our mandate. Murphy v. Murphy, 378 So.2d 27 (FLa. 3d DCA 1979). Obviously it had to do so or otherwise our mandate would have been an exercise in futility. The trial court clearly had jurisdiction on remand to correct its error. It had a number of options for doing so. The most logical option would have been for the trial court to award lump sum alimony in either cash or the marital home if it determined that the special equity award was an error. Or, it could have found a special equity by identifying a specific contribution and res. Both of these options, available to the trial court on remand, follow from the determination already made by that trial court after a full trial; that is to say, that appellant was entitled to a specific, equitable interest in the assets, in the amount of $32,232 (and, as a corollary, that appellee had the ability to pay).

Appellee argues...