WABEKE v. WABEKE, 2D08-1745.

• Decision Date: 15 July 2009
• Docket Number: No. 2D08-1745.,2D08-1745.
• Citation: 31 So.3d 793
• Parties: Shirley Q. WABEKE, Appellant, v. Mark WABEKE, Appellee.
• Court: Florida District Court of Appeals

31 So.3d 793

Shirley Q. WABEKE, Appellant, v. Mark WABEKE, Appellee.

No. 2D08-1745.

District Court of Appeal of Florida, Second District.

July 15, 2009.

Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appellant.

Andrew J. Rodnite, Jr., of Reeser, Rodnite, Outten & Zdravko, P.A., Palm Harbor, for Appellee.

SILBERMAN, Judge.

In this postdissolution proceeding, Shirley Q. Wabeke, the Former Wife, seeks review of the "Supplemental Final Judgment to Modify and Increase Alimony." The Former Wife challenges the amount of alimony awarded and the trial court's denial of her request that Mark Wabeke, the Former Husband, maintain life insurance to secure the award. We reverse the alimony award because the trial court failed to make sufficient findings of fact to support the award. We affirm without comment the denial of the Former Wife's request that the Former Husband be required to maintain life insurance as security for alimony.

In November 1995, the trial court entered a final judgment of dissolution of marriage which incorporated the parties' marital settlement agreement (MSA) and dissolved the parties' eighteen-year marriage. The MSA provided that the Former Husband would pay $1800 per month in rehabilitative alimony for a period of ten years. Either party could apply for modification or termination of alimony prior to the expiration of the ten-year period, with the change to become effective upon the expiration of the ten-year period. The MSA also required the Former Husband to pay $1900 per month in child support until the children turned eighteen. At the time, the Former Husband was earning a gross annual income of about $100,000.

In addition to providing for alimony, the MSA equitably divided the parties' marital assets and liabilities. The MSA awarded the Former Wife the first $150,000 from the future sale of the marital home, $203,719.40 from the Former Husband's retirement benefits, and approximately $75,000 in other liquid assets. The MSA awarded the Former Husband a similar amount of assets.

Prior to the expiration of the ten-year period, the Former Wife filed a supplemental petition for modification of the final judgment of dissolution of marriage. The Former Wife requested an extension of alimony, a conversion of rehabilitative alimony to permanent periodic alimony, and an increase in alimony. The Former Wife asserted that the Former Husband's income had increased, her income had decreased, and the child support obligation was extinguished because the children had reached majority. The Former Husband eventually agreed that the Former Wife was unemployable and entitled to permanent alimony. The Former Husband also agreed to pay the Former Wife $3700 in temporary alimony while the supplemental petition was pending.

At the hearing on the supplemental petition, the Former Wife testified that she used the $150,000 she received from the sale of the marital home as a down payment for her current home. She further testified that she had invested the assets she received in equitable distribution and her income was limited to the support paid by the Former Husband and the income generated by these investments. The Former Wife claimed that she had to regularly dip into the investments to pay her living expenses.

The Former Wife's financial affidavit listed her living expenses as $6600. The Former Wife testified that her monthly expenses had not changed significantly from the monthly expenses of approximately $6000¹ she had at the time of the original final judgment. She testified that at the time of the hearing her share of the Former Husband's retirement account had diminished from $203,719.40 to $86,000. The Former Wife claimed she had only $3200 left in investments and that she had $14,700 in credit card debt. She would need a monthly alimony award of $7600 to pay her claimed expenses because of tax implications.

The Former Husband testified that his 2006 gross annual income was over $213,000, although there was some evidence that his income may have been $234,739.77. His 2006 gross income was more than double his 1996 gross annual income of $100,000. In addition, the Former Husband's financial affidavit listed over $1 million dollars in net assets. He also acknowledged that he had several substantial assets that were not listed on his current financial affidavit, including (1) a retirement account worth almost $1 million; (2) a 401(k) account worth $31,059; and (3) a $20,000 bond.

The Former Husband's counsel urged the trial court to find that the Former Wife's monthly expenses could not have been $6000 or $6600 because his "simple math" showed that she would not have $86,000 left in her share of the Former Husband's retirement account if her monthly expenses had been $6000 or $6600 over the years. Counsel argued that a monthly alimony award of $3000 to $3700 would be appropriate.

The trial court entered a "Supplemental Final Judgment to Modify and Increase Alimony" which devoted two paragraphs to the Former Wife's need and the Former Husband's ability to pay alimony. Those two paragraphs read as follows:

(8) At hearing, the former wife alleged that she had depleted her retirement assets since the Final Judgment of Dissolution. The Court finds that she was depleting her assets for living expenses at the rate of $1,000.00 per month, over a twelve (12) year period of time, and that she depleted a total of $114,000.00² in assets. The Court therefore finds that the alleged need of the former wife cannot amount to the $6,000.00 per month sh

...