CONRAD C. PALUMBO, APPELLANT,
v.
JANET R. PALUMBO, APPELLEE
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In this divorce case, the trial court improperly included the husband's separate property (his data retrieval business) when making an equitable distribution of marital assets. The appellate court reversed and remanded, holding that separate property cannot be distributed without proof of special equity or special need.
The husband's data retrieval business, as separate property started before the marriage and held solely in his name with no wife involvement, cannot be included in equitable distribution without proof of special equity or special need. Since no special equity was proved or awarded, the business must be excluded from the distribution computation.
[1] Separate property of a spouse may not normally be included in an equitable distribution scheme.
[2] A spouse claiming an interest in the other spouse's separate property may avail themselves of the doctrine of special equity.
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Join FLexlaw to unlock all legal intelligence“Separate property of a spouse normally may not be included in an equitable distribution scheme.”
Establishes the fundamental rule prohibiting inclusion of separate property in equitable distribution
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Join FLexlaw to unlock all legal intelligenceThe parties were married for 12 years with no children. The wife was 36 and had no particular job skills (high school graduate, previously worked at t…
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FOXMAN, Associate Judge.
This was a twelve year marriage with no children being born. At the time of trial the wife was 36, the husband 45. Both parties were healthy. The wife had no particular job skills. She was a high school graduate who at the time of marriage worked for the Playboy Club. For a short time during the marriage she worked as a restaurant hostess. The husband ran his own successful data retrieval business.
In reaching final judgment, the Trial Court added up the value of all assets and divided by two. The principal asset, the business, was left to the husband. The wife received the marital home, a duplex, one-half of a $30,000 account, a Cadillac, and one-half of the husband’s profit sharing account. As part of the wife’s one-half she received lump sum alimony of $102,615 payable at $855 per month for ten years. Over and above the equitable distribution the wife was awarded $750 per month rehabilitative alimony for four years.
The problem with the equitable distribution in this case was that the total sum to be distributed erroneously included separate property of the husband. Clearly the data retrieval business was the separate property of the husband. The business was started before the marriage, stock was owned in the husband’s name alone, the wife did not work in the business. Separate property of a spouse normally may not be included in an equitable distribution scheme. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980) at 1201.
If the wife claims an interest in the husband’s separate property, she has the doctrine of special equity available to her. Ball v. Ball, 335 So. 2d 5 (Fla.1976). In this case the wife’s complaint did contain a prayer for special equity, but no special equity was proved, nor any awarded. This Court is also aware that authority exists for a lump sum award of separate property if special reasons or need exist. McBride v. McBride, 424 So. 2d 977 (Fla. 4th DCA 1983). No special reason or need was proved here.
The business must be backed out from the equitable distribution computation. This will affect of course not only the type and amount of distribution, but will affect the monthly income available to the wife because the monthly alimony payment of $855 will be altered. Accordingly, the case is remanded to the trial court for further proceedings in accordance with this opinion. The trial court may, in its discretion, receive further evidence.
REVERSED and REMANDED.
DAUKSCH and COWART, JJ., concur.
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Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shannon v. State, 335 So. 2d 5 (Fla. 1976)
- McBRIDE v. McBRIDE, 424 So. 2d 977 (Fla. 4th DCA 1983)