Woolf v. Woolf, Case No. 4D04-3403 (FL 3/9/2005), Case No. 4D04-3403.
| Decision Date | 09 March 2005 |
| Docket Number | Case No. 4D04-3403. |
| Parties | MARC S. WOOLF, Appellant, v. CYNTHIA R. WOOLF, Appellee. |
| Court | Florida Supreme Court |
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County, Edward A. Garrison, Judge, L.T. Case No. CD 2000 1765 FC.
Marc S. Woolf, Wellington, Pro Se.
Helene Hvizd Morris, West Palm Beach, and Colleen Nelson, Tequesta, for appellee.
Marc Woolf appeals a final order which found him in contempt, denied his petition for modification of alimony and child support, and charged him with a portion of his former wife's attorney's fees. We conclude that the trial court entered the contempt order without sufficient notice to appellant, and that the court abused its discretion in denying the modification motions and awarding attorney's fees in light of the parties' current financial situations.
Marc Woolf ("the former husband)" is 43 years old. He earned his law degree in 1986 and subsequently earned his masters of law in taxation. The former husband initially worked for various respected West Palm Beach firms, doing primarily tax-related work. In 1993, he went into partnership with Mark Mirkin. The firm's primary focus was corporate and securities law. The former husband owned a 45% share of the firm. Mirkin was the firm's primary rainmaker and 55% partner.
The former husband stopped doing tax work in the mid-1990's. The corporate work that he and Mirkin did involved startup companies — trying to get them funding through venture capitalists or other sources. They had a great deal of business coming in with the large number of firms going public.
Cynthia Wolf ("the former wife") has a B.S. in accounting from the University of Florida. She is a part-time accountant/bookkeeper and has not worked full-time in fourteen years. The parties' two children are thirteen and ten years old.
The parties divorced on April 25, 2000. They split their property equally, with the former wife taking the interest in the marital home and the former husband taking the interest in Mirkin & Wolf, P.A.. The former wife's CAP account (a combination brokerage and checking account) on February 29, 2000, was $659,745 (out of which she paid $175,000 in taxes).
The marital settlement agreement which was incorporated in the final judgment of dissolution granted the former wife primary residential custody of the children. The former husband agreed to pay child support of $1,650 per month and permanent periodic alimony of $1,300 per month. He also was obligated to pay for the children's health insurance, the former wife's life insurance and 69% of certain other of the children's expenses. The agreement expressly provided that it would remain modifiable.
The year 2000 (the year of the divorce) was Mirkin & Woolf's best year financially. Its gross receipts for that year totaled $379,323, with total compensation to the former husband of $173,297. Approximately $90,000 of that total came from stock appreciation in a company called Cyber Care, leaving about $83,000 in income from the remainder of his law practice. At this time he was theoretically supposed to be paid an annual salary of $120,000 by his firm and a bonus of $20,000, provided there was cash to fund such payouts.
The stock market started rapidly declining in March 2000. As the economy turned down, the law firm's revenues started to decline steadily. All of the "dot.coms" were "dying." The former husband testified that they always thought the economy would come out of it. But as the dot.coms died and the money dried up, so did the former husband's practice. They had enjoyed nine and a half successful years, so they were not readily willing to abandon the practice. The former husband admitted that he was in denial from having seen some robust years, thinking it had to come back, that it was just a temporary adjustment, but it never happened.
The former husband's CAP account contained $462,637.26 on January 31, 2001. His adjusted gross income for 2001 was $ 67,000. His CAP account on January 31, 2002 had fallen to $ 132,917.53. In 2002, the former husband's adjusted gross income was $32,523. By January 31, 2003, his CAP account had fallen to $52,531.97.
In the fall of 2002, the former husband's partner suddenly announced that he was planning to move to North Carolina within a week. He took many of the firm's clients and left. The former husband generated some more work and started on a job search. He contacted headhunters, followed up with interviews, and consulted with an employment specialist. He wanted to stay in South Florida because of his children, but had to interview in areas outside Palm Beach County.
On June 27, 2003, the former husband, who was still current with his obligations, moved to modify his alimony and child support. He specifically requested that alimony be reduced to $300 per month until February 1, 2007, at which point it would terminate. He also requested that child support be reduced to $1350 per month, with the parties sharing equally in the cost of health insurance and uncovered medical expenses.
In his August 21, 2003 financial affidavit, the former husband listed his previous year's gross income as $45,000. He claimed total assets of $119,964, total debts of $41,467, and a net worth of $78,497. He listed as a contingent liability a $43,000 personal guaranty on a loan to his firm, on which the bank has sued and as to which he claims there is no defense.
Meanwhile, the former husband's business and assets were continuing to decline. In 2003 his adjusted gross income was just $18,000. Most of this was earned working on his own out of his apartment without staff, as he had been evicted from his offices for non-payment of rent in April 2003. The former husband defaulted on his alimony obligation (but not his child support) beginning in November 2004. By January 31, 2004 his CAP account was down to $26,888.21.
Finally, on January 4, 2004, the former husband found employment in the family law area with a firm in West Palm Beach. His base salary with that firm was $48,000. Unfortunately, this relationship lasted only about two months. The firm laid off the former husband because it decided that it did not want to wait while he developed more business.
The former husband testified that he could "hang out a shingle," but because the corporate securities area is still weak, he would not have many clients. He testified that he is willing to expand into anything. His plan is to "hit the pavement" and try and get a job. He hopes to someday make $100,000 to $160,000, but he stated that it does not seem a likely possibility at the present time.
By contrast to the former husband's declining fortunes, the former wife's CAP account grew from $225,641.82 on December 31, 2002 to $232,750.80 on December 31, 2003, despite having paid attorney's fees in connection with this matter of $7,575 during that period. Her second amended financial affidavit lists her annual income as $6,506.25, but her total assets are $511,148 and her net worth is $315,213.1
The former wife testified that once her kids go to college she hopes to work full-time again. Currently, she works an average of nine hours per week. She testified that the only luxury she has is the ability to take care of all of her children's needs, including their transportation to school and lessons. She does not think she could make over $20,000 per year working full-time. When asked about her new Lexus 330 lease, she responded that she never claimed that she was in "dire straits."
The primary focus of the final hearing was the testimony of Val Nardo, the former wife's vocational expert. Nardo issued a vocational assessment declaring that there was a $100,000 to $160,000 wage range for someone with the former husband's skills and experience and that the former husband had voluntarily reduced his income.
Nardo testified that the former husband's skills in the tax field could easily be upgraded. He testified that in 2002 the average partner was earning $293,000 and the average associate was earning $109,000. He said that he had talked to one person who said that the former husband might have some difficulty working in the tax field, but that if he worked towards that goal he could gain employment. He admitted that it is not as easy as five years ago, but he felt that the economy is getting better and there are people with the former husband's skills earning money.
In Nardo's opinion, the former husband should not be making $18,000 a year, or even $48,000 a year. He testified that if the former husband had started early on in redeveloping his skills in the tax area, or started looking for other opportunities in the corporate and securities area, he would not facing his current dilemma.
Nardo characterized the former husband's job search as very weak, as he could point to only about eight or nine job contacts during 2003. In his opinion, since the market turned down in 2001, all of the activity should have been done before that to readjust the situation. According to Nardo, someone looking for work should expend at least twenty-five hours per week in employment search and there is no indication that has been done in this case.
Nardo testified that in a half hour he was able to locate several law firms in Palm Beach, Broward, and Dade involved in securities and tax. He felt that the former husband should have contacted each firm personally. However, Nardo did not say that any of these firms had openings.
Nardo testified that he found a tax job open in Miami with a starting salary of $100,000 to $300,000, but the employers wanted some type of "portfolio." On the former husband's cross-examination, Nardo agreed with the former husband's headhunter that the corporate market remains soft and firms are being very particular in wanting $350,000 to $400,000 in "portables." Nardo went on to concede that the former...
To continue reading
Request your trial