Watterson v. Watterson

• Court: Florida District Court of Appeals
• Writing for the Court: BOYER; MILLS; McCORD; McCORD; McCORD; MILLS; BOYER; BOYER
• Citation: Watterson v. Watterson, 353 So.2d 1185 (Fla. App. 1977)
• Decision Date: 22 November 1977
• Docket Number: No. EE-378,EE-378
• Parties: Gary Adair WATTERSON, Appellant, v. Earline O. WATTERSON, Appellee.

Page 1185

353 So.2d 1185

Gary Adair WATTERSON, Appellant, v. Earline O. WATTERSON, Appellee.

No. EE-378.

District Court of Appeal of Florida, First District.

Nov. 22, 1977.

On Rehearing Jan. 20, 1978.

M. Stephen Turner and Joseph P. Mawhinney of Thompson, Wadsworth, Messer, Turner & Rhodes, Tallahassee, for appellant.

L. Ralph Smith, Jr. of Smith & Moore, Tallahassee, for appellee.

BOYER, Judge.

By appeal from a final judgment of dissolution of marriage the husband (appellant) asserts the following four alleged errors: (1) The trial court erred in declaring the parties' adult son a dependent within the meaning of Florida Statute 743.07(2) and in considering that dependency in awarding to the wife lump sum alimony; (2) the trial court erred in awarding the wife lump sum alimony in the amount of $63,000.00; (3) the trial court erred in requiring the husband to maintain life insurance on his life for the benefit of the wife; and (4) the trial court erred in awarding the wife attorney's fees.

The parties were married in 1953 at which time neither had substantial assets. The wife worked as a legal secretary during the first years of the marriage while the husband became a C.P.A. The parties only child, a son, was born in 1955. In 1961, the wife became primarily a homemaker and thereafter invested her energies in her husband's career to the exclusion of her own personal development. The parties attained a "fused relationship" in the words of the clinical psychologist who testified at the trial. During the early 1970's, the husband was a partner in an accounting firm earning from $50,000-$70,000 annually. In June of 1975, the husband left that firm taking with him certain assets, accounts receivable, and client files having a value of $107,000. He is now in partnership with another accountant earning approximately $35,000 in 1975 and 1976. He is also a Major in the National Guard earning from that source approximately $4,000 a year. When he retires his military retirement will be between $800 and $900 a month. When the parties separated in September of 1975, the wife remained in the marital home which was in her name and which had a value of $15,000. During the 15 month period of separation, the wife became extremely upset over the marriage breakup, the husband's adulterous relationship with another woman, and her financial future and security. At the final hearing, the clinical psychologist whom the wife began seeing during the separation period, testified she was incapable of competing in the job market and needed continued mental health counseling. The psychologist also testified in regard to the parties' 21-year-old son stating that the son was upset over his parents' divorce and was clinically depressed, socially withdrawn and incapable of earning a living and maintaining himself. The psychologist felt the son needed continued counseling and would most likely improve as soon as the dissolution proceedings were over. It was his opinion that the son was college material and should go to college since his personality and interests were not suited to manual labor.

The parties have a net worth of $373,640.06 on December 31, 1974. Two years later on the day of the final hearing, December 22, 1976, the husband testified to a net worth of $116,105.28 and the wife stated in a financial affidavit submitted to the court that she had a net worth of $52,145.14. See the following table:

                                     TABLE
                -------------------------------------------------------------------------------
                ASSETS AT THE TIME
                OF FINAL HEARING                             WIFE                HUSBAND
                -------------------------------------------------------------------------------
                Savings Accounts, cash                 $   636.64         $   388.76
                Accounts Receivable                                         11,000.00
                Notes Receivable                                            94,956.52
                Real Estate (marital
                  home)                                 15,000.00
                Automobiles & furnishings                                    2,500.00
                Cash value--Life insurance               5,670.00*
                Securities                              30,838.50**
                Investments--Equity                                         21,000.00
                CPA Partnership
                    Net Capital                                             21,000.00
                    Goodwill                                                16,875.00
                Notes Payable                                              (51,615.00)
                -------------------------------------  -----------------  ---------------------
                NET WORTH                              $52,145.14         $116,105.28
                *There is a conflict in the record, in that the husband testified the wife
                   has a life insurance policy with a cash surrender value of $6,000.00 in
                   addition to the wife's assets of an automobile and furnishings for a total of
                   $11,700.00 in this category while the wife submitted a figure of only
                   $5,670.00
                **Although the securities were jointly held, the wife included the total
                   value of her net worth and the husband excluded the value of his 1/2 interest
                   from his net worth
                

At the final hearing the wife objected to the husband's testimony concerning his net worth since he had not furnished accurate or complete records of the value of his accounting practice. The court noted this and stated it would not be bound by the figures. During the separation, the husband made several real estate investments which decreased his assets and generated losses. The wife testified that during the 15 month separation she withdrew $98,381.14 from savings accounts in her name and spent all of it but $1,000.00. $11,128.35 of this money was spent for taxes and her husband's investment in a real estate venture. The rest of the money was used for the purchase of appliances, furniture, clothes, a new car, payment for repair and remodeling work on the house and donations to various churches. The wife testified she thought if she got rid of the money her husband would come back to her.

In the final judgment, the trial judge determined that the son's lack of earning capacity was significantly due to his emotional trauma over the domestic discord of the parties and that he required substantial assistance. The court found that the son was a "dependent" person within the meaning of Section 743.07(2), Florida Statutes (1975) in need of support for the next year or two rather than indefinitely. The trial court concluded that allocation of property to the wife sufficient to buttress supporting the son's needs would be more practical than a specific award of child support. He ordered periodic alimony of $1,000 a month to the wife and lump sum alimony in the form of $18,000 worth of securities (1/2 interest in jointly held securities worth $36,000) and $45,000 worth of promissory notes held by the husband. The court did not give any weight to the $98,000 withdrawn from the savings accounts, stating that though the dissipation was prodigal, a substantial amount was spent in providing for the living needs of the wife and son over the 15 month separation and that the emotional distress precipitated by the marriage rupture had a significant influence on those actions. Finally, the court found that because of the wife's substantial dependence on the husband for support, the husband should maintain a $40,000 life insurance policy on his life for the benefit of his wife. Attorney's fees were awarded to the wife in the amount of $8,000.

At the final hearing, the learned trial judge stated that he had been confronted with more problems in this case than any case he could recall in nearly 20 years on the bench. We agree with the learned and able trial judge that this case presents many difficulties: However, we must disagree with the manner in which the law was applied to the facts of the case.

There is nothing in the law which requires a parent to support a child who is not disabled by physical or mental incompetency beyond the age of 21. Briggs v. Briggs, 312 So.2d 762 (Fla. 4th DCA 1975). The decision of Finn v. Finn, 312 So.2d 726 (Fla.1975) which adopted the dissenting opinion in White v. White, 296 So.2d 619 (Fla. 1st DCA 1974) simply holds that the law which changed the age of majority from 21 to 18 did not change the previous law which enabled a trial judge to order support for a dependent child until he reaches 21, providing the child pursues in good faith the furtherance of his education and has a need for help beyond his own reasonable capacity to provide for himself. Sub judice the "child" was over 21, almost 22, at the time of the final judgment. There is no allegation that he...