Yitzhari v. Yitzhari

• Decision Date: 27 July 2005
• Docket Number: No. 3D04-337.,3D04-337.
• Citation: 906 So.2d 1250
• Parties: Iris YITZHARI, Appellant, v. Eli YITZHARI, Appellee.
• Court: Florida District Court of Appeals

906 So.2d 1250

Iris YITZHARI, Appellant, v. Eli YITZHARI, Appellee.

No. 3D04-337.

District Court of Appeal of Florida, Third District.

July 27, 2005.

Scott Margules; Greene, Smith & Associates and Cynthia L. Greene, Miami, for appellant.

Kluger, Peretz, Kaplan & Berlin and Jason R. Marks, Miami, for appellee.

Before WELLS, SHEPHERD, and CORTIÑAS, JJ.

WELLS, Judge.

Iris Yitzhari appeals from a Final Judgment of Dissolution of Marriage, complaining that the judgment is both contrary to the law and an abuse of discretion in many of its determinations. The wife also claims entitlement to a new trial because the inordinate delay (thirteen months) in issuing the final judgment, coupled with the substantial inconsistencies and deficiencies in the judgment, indicate that something is seriously amiss on the merits. For the following reasons, we agree with the wife and remand for a new trial.

This was a nine-year marriage between two Israeli citizens.¹ The wife was twenty-years-old at the time of the marriage and had just completed two years service in the Israeli military. The husband, a businessman almost twenty years her senior, owned a number of rental properties and also owned and operated an electronics store in New York City throughout the marriage.

Four children were born of this nine-year marriage: Kelly, David, Ben, and Daniel, aged ten, seven, six, and four respectively, at the time the petition for dissolution was filed. The wife was a stay-at-home mother during the marriage.

The parties enjoyed a very comfortable lifestyle throughout the marriage, living in a beautifully appointed residence comprised of three apartment units in the heart of New York City. The children attended expensive private schools; the parties employed at least two, and often three, housekeepers at all times; and they traveled extensively to Israel, Belgium, Holland, Turkey, Greece and Florida.

In 2000, the parties relocated to Miami and contracted for the construction of a five-bedroom home in Aventura. While waiting for the home to be built, they lived in a two-bedroom condominium unit titled in the names of the husband and his uncle. In February 2001, the wife filed for a divorce. The husband counter-petitioned seeking custody of the children, claiming, among other things, that the wife was unfit. He also asked the court to make the wife and his children vacate the condominium unit in which they were living, claiming that his uncle was no longer willing to lease to the wife since the husband was no longer living there.

Although the wife sought and was awarded temporary child support (approximately $3200 per month) and alimony (approximately $3500 per month), the husband consistently refused to pay the alimony portion of the award. By June 2001, the wife, with four children and herself to support, wrote to the husband asking him for the money that he owed her from February through May, telling him that she and the children could not survive on only $3000. In desperation, she threatened to turn him over to the Internal Revenue Service for income tax evasion. He responded by filing a "SUGGESTION OF EXTORTION," in which he claimed that the wife's threats "placed a well-founded fear in [him] that [the wife] will do something which would place [the husband] and the parties [sic] minor children's physical well-being in jeopardy."

By August 2001, the wife was "at her wits end" as to how she was going to care for her children. She again petitioned the court for funds seeking an increase in child support so that the children could attend private school as they had in the past. Stating that she had been notified by the husband's uncle that he could terminate her tenancy in thirty days, and that she was "in desperate need of additional monies to help her maintain the children during the school year," the wife offered "to turn over custody to their father." As she testified at trial, the only way she could assure that her children would not be living in the street was to give them to their father.

By the time the wife's motions regarding support and temporary fees and costs were heard in October 2001 (after being delayed by the husband's objections to orders referring these matters to the general master), the wife had already been notified by an attorney for the husband's uncle that she had less than a month to vacate the condominium where she and the children were living. With insufficient money and no place to live with four children, the wife ceded custody of the children to their father, who promptly returned to New York, placed the children in private schools, and then took them to Israel. He also served notice on the wife, an Israeli with limited language and no work skills, that he would "not be paying any alimony to the wife next month and only a partial amount the following month"; that he would be "immediately filing a motion for temporary support"; and that if she had not already done so "she had better go out and get a job," because if she did not get a job or pay, he would "move for contempt and request all sanctions available at law, including incarceration until such time as she purges herself of contempt." The wife was evicted. Although the contents of the condominium concededly were marital assets, the husband demanded that the wife not remove "so much as a fork."

On October 12, 2001, approximately nine months after this action was filed, and after the wife had ceded custody of her children, temporary attorneys' fees and costs were finally awarded to the wife. The husband paid the award with funds returned to the parties upon cancellation of the contract for construction of their new home in Aventura, funds which in part belonged to the wife.

On January 4, 2002, the husband was ordered to pay $1500 a month to the wife for temporary support. He made those payments only through May 2002. This matter was tried over a three day period in July 2002. At the end of the trial, the judge stated that she would either issue a written order or hold a hearing and announce a judgment. She did neither. For the next thirteen months nothing happened largely because the judge who conducted the trial was suspended. Finally, on August 26, 2003, a final judgment of dissolution of marriage was entered. That judgment, in pertinent part, identified seven parcels of real property titled partially or wholly in the husband's name, all but one of which were acquired before the marriage. The value of these properties, including the property acquired after marriage, was determined to be over one million dollars, all of which — including the enhanced value during the marriage — was awarded to the husband.

The husband was awarded custody of all four children. Based on representations made at the final hearing that he intended to reside with them in New York City, the husband was awarded exclusive use and possession of the marital residence in New York City (valued at over a million dollars) until the youngest child attained majority, that is, until twelve years after the marriage was dissolved. The wife was awarded no assets other than her interest in the marital home which was going to be occupied by the husband and the children for the next twelve years.

The wife, a high school graduate who spoke English poorly and had no Spanish skills or work experience, was awarded "bridge the gap" alimony in the amount of $3466 per month for six months. The judgment was silent on the temporary alimony that the husband had failed to pay for well over a year.

The wife claims here that this judgment is so seriously flawed that reversal and a new trial are mandated. For a number of reasons, we agree. First, despite the husband's testimony which confirmed that during the marriage he expended both marital funds and labor to manage, maintain and improve seven properties titled wholly or partially in his name, the trial court refused to award any portion of value of these properties (valued at over one million dollars) to the wife because she failed "to carry her burden" of proving when, and how much, marital funds were expended.

By definition, "[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both," is a marital asset subject to equitable distribution. § 61.075(5)(a)2, Fla. Stat. (2003)(emphasis added); see Robbie v. Robbie, 654 So.2d 616, 617 (Fla. 4th DCA 1995)(holding that even carrying out the decisions of others relating to a nonmarital asset may constitute marital labor requiring equitable distribution of the enhanced value of the asset); see also Miceli v. Miceli, 533 So.2d 1171, 1172 (Fla. 2d DCA 1988)(a pre-equitable distribution statute case finding that "the enhanced value of separately owned assets becomes a marital asset when that enhanced value is due to marital labor or funds"). Based on the husband's testimony that he alone managed one of these properties; that he used marital funds to maintain and upkeep at least two of them; and that he maintained and, in some instances, made improvements to the rest of the properties, the wife was entitled to distribution of the enhanced value of these assets.² See § 61.075(1), Fla. Stat. (2003)(mandating equitable distribution of marital assets).

Once it was established that marital labor or funds were used to improve these assets, the burden then shifted to the husband to show that some, if any, portion of the enhanced value was exempt from equitable distribution. Gaetani-Slade v. Slade, 852 So.2d 343, 347 (Fla. 1st DCA 2003)(stating that "once a non-owner spouse establishes that marital labor or funds were used to improve [an asset] that was nonmarital, the owner-spouse has the burden to show which parts [of the enhanced value] are exempt")(emphasis added)(citing Adkins v. Adkins, 650 So.2d 61, 68 (Fla. 3d...