ALBERT J.W. NOVAK, APPELLANT/CROSS-APPELLEE,
v.
PATRICIA H. NOVAK, APPELLEE/CROSS-APPELLANT
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In a divorce case, the appellate court affirmed the trial court's finding of a constructive trust giving the wife half of the husband's closely held corporate stock, but reversed the denial of attorney's fees and remanded for the court to determine the stock's value and establish payment terms to avoid the parties remaining business partners.
The court affirmed the constructive trust finding and permanent alimony award. The court reversed the denial of attorney's fees as an abuse of discretion. The court held that the trial court must determine the stock's value and award that value to the wife to be paid by the husband on reasonable terms, rather than leaving the parties as ongoing business partners.
[1] A trial court's finding of a constructive trust is supported by substantial competent evidence if the record contains such evidence.
[2] Courts generally discourage arrangements where divorced parties remain business partners.
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Join FLexlaw to unlock all legal intelligence“there is substantial competent evidence to support that finding by the trial court”
The court's rationale for affirming the constructive trust determination regarding the wife's interest in the husband's corporate stock
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Join FLexlaw to unlock all legal intelligenceAlbert and Patricia Novak were divorcing. The trial court found a constructive trust in favor of Patricia for one-half of Albert's stock in a closely …
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DOWNEY, Judge.
The appellant, Albert J.W. Novak, attacks the final judgment of dissolution of marriage, contending that the trial court erred in finding a constructive trust in favor of the appellee wife to the extent of one-half of the husband’s stock in a closely held corporation. However, our consideration of the record and briefs leads us to hold that there is substantial competent evidence to support that finding by the trial court.
By way of cross-appeal the appellee, Patricia K. Novak, suggests the trial court erred in failing to award her a) one-half of the husband’s pension fund, b) rehabilitative alimony and the husband’s interest in the house, c) attorney’s fees, and in failing to fix a value for the corporate stock and property so that the parties would not remain business partners. Oddly enough, both parties complain of the latter result because it creates the intolerable situation of these erstwhile mates being required to operate a business together. On other occasions this court has discouraged that finan cial arrangement. See Kaylor v. Kaylor, 390 So. 2d 752 (Fla. 4th DCA 1980), and Bird v. Bird, 385 So. 2d 1090 (Fla. 4th DCA 1980). Therefore, while we affirm the trial court’s determination of a constructive trust and the awards made in favor of the wife, we hold that the value of the stock should be determined and the wife should be awarded that value to be paid by the husband on such terms and conditions as the trial court determines are reasonable considering the husband’s financial ability to amortize the sum in question.
We find no merit to the wife’s claim of an interest in the husband’s pension fund nor for rehabilitative alimony. The court awarded her permanent alimony in the sum of $1500 per month. That award is both appropriate and adequate. The court allowed each party to retain his own pension fund and no abuse of discretion is demonstrated in this regard.
The refusal to allow the wife any attorney’s fees we hold was error. Without detailing the various elements in making that determination, suffice to say that considering the respective assets of the parties and particularly the husband’s substantial income, we believe it was an abuse of discretion not to award her some attorney’s fees.
Accordingly, the judgment appealed from is affirmed in all respects except two. The failure to award the wife all or a reasonable portion of her attorney’s fee is reversed. Upon remand, in addition to determining an award of attorney’s fees, the trial court is directed to determine the value of the stock awarded to the wife and in lieu of said stock award her the value thereof, and fix the terms and conditions under which the husband shall amortize said amount.
AFFIRMED IN PART; REVERSED IN PART; and remanded with directions.
ANSTEAD and HURLEY, JJ., concur.
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Iribar v. Iribar, 510 So. 2d 1023 (Fla. 3d DCA 1987)…kingham, 492 So. 2d 858, 861 (Fla. 1st DCA 1986); Agudo v. Agudo, 449 So. 2d 909, 911 (Fla. 3d DCA 1984); Travieso v. Travieso, 447 So .2d 940, 943-44 (Fla. 3d DCA 1984), quashed in part, approved in part, 474 So. 2d 1184 (Fla.1985); Novak v. Novak, 429 So. 2d 414, 415 (Fla. 4th DCA), pet. for review denied, 438 So. 2d 833 (Fla.1983); Feldman v. Feldman, 390 So. 2d 1231,1232 (Fla. 3d DCA 1980). The final judgment of marriage dissolution is affirmed, save for the denial of an award of attorney’s fees and cost…
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Polley v. Polley, 588 So. 2d 638 (Fla. 3d DCA 1991)…1 (Fla. 3d DCA 1990); Rodriguez v. Rodriguez, 550 So. 2d 16 (Fla. 3d DCA 1989); Robbins v. Robbins, 549 So. 2d 1033 (Fla. 3d DCA 1989), review denied, 560 So. 2d 234 (Fla.1990); Manzella v. Manzella, 473 So. 2d 39 (Fla. 3d DCA 1985); Novak v. Novak, 429 So. 2d 414 (Fla. 4th DCA), review denied, 438 So. 2d 833 (Fla.1983). The wife contends that the trial court erred in treating her salary as an asset for equitable distribution purposes. Although we find that the trial court did not consider the wife’s salary a…
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Elliott Ross v. Bandi, 566 So. 2d 55 (Fla. 4th DCA 1990)…argues that the trial court improperly valued appellant’s corporate stock. We agree. A trial court must base its valuation of a corporate asset upon competent substantial evidence. Greer v. Greer, 438 So. 2d 535 (Fla. 2d DCA 1983); Novak v. Novak, 429 So. 2d 414 (Fla. 4th DCA), pet. for review denied, 438 So. 2d 833 (Fla.1983). When property valuation is an integral part of the court’s entire plan of distribution, confusion as to value requires reversal of the property award. Saxton v. Saxton, 454 So. 2d 57…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bird v. Bird, 385 So. 2d 1090 (Fla. 4th DCA 1980)
- Kaylor v. Kaylor, 390 So. 2d 752 (Fla. 4th DCA 1980)