Zipperer v. Zipperer, 89-2174
| Decision Date | 04 September 1990 |
| Docket Number | No. 89-2174,89-2174 |
| Citation | 567 So.2d 916 |
| Parties | Rebecca A. ZIPPERER, Appellant, v. William Ray ZIPPERER, Appellee. |
| Court | Florida District Court of Appeals |
Rehearing Denied Nov. 1, 1990.
Harry B. Mahon, of Mahon, Farley & McCaulie, P.A., Jacksonville, for appellant.
Albert Datz, of Datz, Jacobson & Lembcke, Jacksonville, for appellee.
In this appeal, appellant, Rebecca Zipperer (former wife), urges that the trial court erred in denying her petition for modification of a final judgment of divorce based upon a finding that no substantial change in circumstances had occurred since the entry of the final judgment. We agree with appellant and reverse.
The twenty-five year marriage between appellant and her former husband, William Zipperer, ended in divorce in 1985. From the final judgment entered in the divorce proceeding, the former wife appealed the permanent alimony award and the failure of the trial judge to award her any interest in her former husband's vested military pension. This court affirmed the alimony provision but remanded the case because the trial court did not indicate whether it considered the former husband's vested pension when it distributed the marital property. See, Zipperer v. Zipperer, 508 So.2d 551 (Fla. 1st DCA 1987).
Following the distribution of marital property, both parties had approximately $95,000 in assets. Mr. Zipperer, fifty-six years of age, is a former Navy captain and base commander who at the time of the filing of the instant petition worked as a self-employed family financial planner. He has a net worth of $167,000, part of which he gained through inheritance. The former wife, now fifty, remained at home during the marriage at her husband's preference to raise the parties two adopted children. At the time of filing her petition for modification her assets were valued at $350,000, $275,000 of which amount was represented by the value of real property quitclaimed to her by her father. Since the divorce, the former wife has attempted to supplement her alimony income by working as a real estate sales person, a retail sales person and a receptionist. She is currently working as a self-employed seamstress.
In 1985, the former husband received $3,000 per month in pension income. This amount increased to $3,120 per month in 1988. His affidavits filed below do not disclose business, interest or dividend income. His 1985 affidavit represented that he netted $2,610 per month and spent $3,756 per month. His income tax returns for 1985, 1986 and 1987 indicate he grossed $67,445, $34,043 and $51,402 for those years, respectively. In 1986, the former husband used a portion of his inheritance for a downpayment on a home; $11,000 went to living expenses and $27,000 went into mutual funds. His 1988 affidavit reflected an income of $2,770 per month, and monthly expenses of $3,910. It anticipated a $870 per month new home mortgage obligation, payment of a $9,100 balance on a $19,000 van, and repayment of $12,500 in personal loans. While he liquidated $12,000 from his mutual funds to assist in the payment of these obligations and also loaned an associate $12,000, the value of his mutual fund portfolio increased from $117,000 to $123,500.
In her affidavit, the former wife set forth all her income from all sources. She testified that although she receives $1,050 in alimony monthly, she has depleted approximately $45,000 from savings to meet expenses and attorney's fees. Rent, utilities, auto payment, insurance, taxes and food consume all but $100 of her monthly alimony income.
The husband maintains on appeal that interest, dividend and business income should not be attributed to him because he only reports it for tax purposes and, were he to receive it, he would actually suffer a loss. We disagree. Chapter 61 clearly designates "income" as:
... any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation, disability benefits, annuity and...
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...Martinez v. Martinez, 761 So.2d 433 (Fla. 3d DCA 2000), Sohacki v. Sohacki, 657 So.2d 41 (Fla. 1st DCA 1995), and Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990). We have jurisdiction.1 The conflict issue is whether "pass-through" income2 from an S corporation that is not actually d......
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