Weininger v. Weininger
| Decision Date | 10 October 2019 |
| Docket Number | No. 3D17-49,3D17-49 |
| Citation | 290 So.3d 928 |
| Parties | Janet Ray WEININGER, Appellant, v. Michael Joe WEININGER, Appellee. |
| Court | Florida District Court of Appeals |
ADR Miami LLC and Juan Ramirez, Jr., Miami; Zumpano Patricios & Winker, P.A. and Leon N. Patricios and Heather K. Stoessel, Coral Gables, for appellant.
Gilbert C. Betz, P.A. and Gilbert C. Betz, Miami, for appellee.
Before EMAS, C.J., and FERNANDEZ and HENDON1 , JJ.
The former wife appeals the trial court's final judgment of dissolution of marriage. Specifically, the former wife challenges the trial court's refusal to award permanent alimony and the court's distribution of marital assets. For the reasons articulated below, we reverse for equitable distribution of the USAA Subscriber account and affirm in all other respects.
The parties, Janet Ray Weininger ("Janet") and Michael J. Weininger ("Michael"), were married in February 1977. They had two children – Peter and Christina. Both children were adults when the parties filed for divorce on January 28, 2009.
Throughout the marriage, Michael was the family's primary breadwinner. Michael was a pilot in the Air Force when the parties met. When he retired from active duty, he continued to fly for the Reserves, and began flying as a pilot for Delta Airlines. He later retired from the Reserves and worked only for Delta. Janet worked sporadically and/or part-time.2 Following the birth of their first child, the parties agreed that Janet would be the homemaker because Michael's career required significant travel.
The family lived comfortably on Michael's income. They sent their children to private schools, and they paid for the children's college education.3
The couple acquired several properties over the course of their marriage. They purchased the family home in Palmetto Bay, two rental properties in Tampa, and land in Alabama. The properties were purchased and maintained with funds from the couple's joint accounts. The rental income, along with Michael's salary and bonuses, were deposited in joint accounts.
Michael acquired several retirement accounts and insurance policies throughout his career with the Air Force, the Reserves, and Delta Airlines. Michael began receiving military retirement benefits in December of 2012, at the age of 60. His military retirement benefits were not shared with Janet. Michael also acquired the following during the marriage: a Charles Schwab investment account; a Delta Pilots Savings Plan and a Delta Pilots Defined Contribution Plan ("Delta Retirement"); and a USAA Subscriber's Account.
Janet also acquired her own funds during the marriage. She maintained an individual IRA, and also received approximately $9 million from a lawsuit stemming from the capture and death of her father during the Bay of Pigs invasion. Janet established the Wings of Valor trust ("the Trust") with the lawsuit proceeds and deposited approximately $8 million therein – naming her children, their spouses, her grandchildren and herself as beneficiaries. In 2012, the Trust had a gross declared value of $9,488,494.00. The record reflects that Janet maintained approximately $1 million from the award and used the funds to set up the Trust.
Janet testified that she is only permitted to use Trust distributions for educational or medical expenses. Thus, any funds disbursed for purposes unrelated to the same would require Janet to reimburse the Trust. Here, Janet testified that she requested, and received, Trust funds to cover ordinary living expenses.
Following allegations of infidelity, the parties separated and Janet filed for divorce. By that time, Michael had already moved out of the marital home and into an apartment in Texas with his mistress. While the parties were separated, Michael continued to pay the mortgage, taxes and insurance on the properties, with the exception of the Alabama lot. Janet covered the maintenance and repair expenses, and she received the rental income generated therefrom. The parties agreed to divide the real properties as marital assets, and both claimed credits for their respective payments.
The major issues in the trial court were Janet's right to alimony, the equitable distribution of assets, and Michael's dissipation of the same. Specifically, Janet argued that Michael dissipated marital assets on, among other things, his mistress and her son and failed to provide for the family – causing Janet to exhaust her personal funds. Janet also claimed that, due to the long-term nature of the marriage and the disparity between the parties' income, she was entitled to permanent alimony. Michael, on the other hand, contended Janet voluntarily depleted her personal income to support their adult children and spent more than reasonably required to maintain the marital home. Michael further argued that his forced retirement, and the equitable distribution of his pension funds, placed both parties in the same financial position and eliminated the need for alimony.
Following a bench trial, the court found that Janet was financially able to meet her needs and necessities, and therefore, denied her request for alimony. The court further found that Michael had not dissipated the Charles Schwab Account during the pendency of the divorce proceedings and that the contributions made by Michael, and Delta, to the Delta Retirement Account during the separation were nonmarital. Additionally, the court determined that the value of the furniture that Michael purchased for the former marital home was $30,000, and awarded Michael a credit for the same. Finally, the court determined that the USAA Subscriber Account was not subject to equitable distribution. This appeal followed.
"A trial court's decision to either award or deny alimony will not be disturbed on appeal unless the record demonstrates that the trial court abused its discretion." Williams v. Williams, 904 So. 2d 488, 491 (Fla. 3d DCA 2005). Similarly, a trial court's ruling on equitable distribution is reviewed for an abuse of discretion. Rodriguez v. Rodriguez, 994 So. 2d 1157, 1159 (Fla. 3d DCA 2008).
The issues on appeal are whether the trial court erred in: (1) denying Janet permanent alimony, (2) finding that Michael did not dissipate the Charles Schwab Account, (3) valuing the Delta Retirement account as of the date the parties filed for divorce, (4) relying on Michael's testimony to award him a credit for furniture, and (5) failing to distribute the USAA Subscriber's Account between the parties.
Janet contends that the court abused its discretion in denying her alimony. Consistent with the record evidence and for the following reasons, we find no error.
"In a proceeding for dissolution of marriage, the court may grant alimony to either party ...." § 61.08(1), Fla. Stat. (2016). "In determining whether to award alimony ..., the court shall first make a specific factual determination as to whether either party has an actual need for alimony ... and whether either party has the ability to pay alimony ...." § 61.08(2). The relevant statute sets forth factors the court must consider in determining whether to award alimony. Id. These factors include: the standard of living established during the marriage; the duration of the marriage; and the financial resources of the parties, inclusive of assets distributed to each at dissolution. Id.
"Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage." § 61.08(8), Fla. Stat. (2016). In the case of a long-term marriage, the courts recognize an initial rebuttable presumption in favor of awarding permanent alimony. Alcantara v. Alcantara, 15 So. 3d 844, 845 (Fla. 3d DCA 2009) (citing Schlagel v. Schlagel, 973 So. 2d 672, 676 (Fla. 2d DCA 2008) ); § 61.08(4), Fla. Stat. (2016) (). "[T]he party seeking alimony ... ha[s] the burden to prove her financial need and the husband's ability to pay." Demont v. Demont, 67 So. 3d 1096, 1101 (Fla. 1st DCA 2011) (citing Esaw v. Esaw, 965 So. 2d 1261, 1266-67 (Fla. 2d DCA 2007) ). "A trial court can overcome [the presumption] by making detailed findings of fact regarding a spouse's need and the other spouse's ability to pay, as well as by considering all the relevant statutory factors listed in section 61.08(2)." Hua v. Tsung, 222 So. 3d 584, 588 (Fla. 4th DCA 2017) ; see also Fichtel v. Fichtel, 141 So. 3d 593, 595 (Fla. 4th DCA 2014).
Here, the trial court acknowledged that this was a long-term marriage and began its analysis under the assumption that Janet was entitled to permanent alimony.4 However, the trial court ultimately denied Janet's request after concluding that: (1) Janet had significant income from the Trust; (2) she was going to receive a significant amount of money from the equitable distribution; and (3) she was able bodied, educated, and capable of working. By contrast, Michael lacked the ability to pay because he was forced to retire. In sum, the trial court found that Janet failed to prove an actual need for alimony.
While Janet testified that she had restricted access to the Trust's funds, and that the Trust loaned her money during the separation to support herself, she failed to provide any supporting documents and her testimony was inconsistent and incomplete. In fact, the trial court found her testimony to be "untenable." Consistent with the record, we find no abuse of discretion, and accordingly, we do not disturb the trial court's denial of alimony.
Marital assets should be distributed equally between the parties, unless there is a justification, such as dissipation, for an unequal...
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