DESIREE TOBACK, APPELLANT,
v.
LAWRENCE TOBACK, APPELLEE
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In a divorce proceeding, the trial court erred by limiting the wife's cross-examination regarding the husband's actual financial means, which were inconsistent with his reported income. The court reversed, holding that a spouse's maintained high standard of living can reflect unreported income relevant to alimony and support obligations.
The trial court erred in preventing full cross-examination regarding the husband's unreported income sources and discrepancies between his financial affidavit and business records. Where a spouse maintains a standard of living inconsistent with reported income, evidence of such invisible sources of income is relevant to ability to pay and is a proper subject for discovery and cross-examination.
[1] A party's financial affidavit is not determinative of their actual financial resources when other evidence, such as lifestyle and business records, suggests a higher capa…
[2] Discrepancies between a party's reported income and their actual expenditures or claimed ownership interests are relevant to determining their ability to pay.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“[W]here a husband has set a standard of living different from his ledger sheets and has maintained that standard over some period of time, the court is justified in holding that he has funds which are not visible.”
Establishes the legal standard that a maintained lifestyle inconsistent with reported income constitutes evidence of unreported income relevant to alimony determinations.
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Join FLexlaw to unlock all legal intelligenceThe parties were married with two minor children. The husband claimed limited income ($500/week from a liquor store) in his financial affidavit, but e…
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FERGUSON, Judge.
Appellant wife contends that the trial court frustrated her efforts to show that appellee’s meager means, as stated in his financial affidavit, belie his actual means which are more accurately reflected by his flamboyant lifestyle and business records. We agree and reverse.
At a trial on her complaint to dissolve the marriage and for custody of the parties’ two minor children, appellant sought to elicit from the appellee certain information which could clarify inconsistencies between a financial affidavit filed in the proceeding and other evidence of his ability to pay. In the dissolution proceeding, appellee claimed that he had a one-third interest in a family-owned condominium in Colorado, whereas for income tax purposes he reported a one-half ownership interest. Further, appellee claimed to have lost money on the sale of the condominium unit, although for tax purposes he reported a $19,000 gain. Ap-pellee also denied having an ownership interest in a liquor store, but in documents filed in a credit application he claimed an ownership interest in the liquor store where he worked.
Appellant does not have a college degree and has not worked in over ten years. During the course of the marriage the parties had two maids at one time. They also employed a cook and a nurse while the children were infants. The parties gambled away as much as $10,000 during Las Vegas trips. When they separated appel-lee voluntarily paid appellant $2,000 per month, which he later increased to $2,500 per month.
Appellee produced an affidavit showing that his income from the liquor store was $500 per week. The court ordered him to pay $800 per month for one year as rehabilitative alimony and $50 per week per child for support.
The trial court made a number of evidentiary rulings which indicate that it was of the view that any income beyond that which the appellee reported from his regular employment was irrelevant. That is not the law. In Bucci v. Bucci, 350 So. 2d 786, 789 (Fla. 3d DCA 1977), we held that:
[WJhere a husband has set a standard of living different from his ledger sheets and has maintained that standard over some period of time, the court is justified in holding that he has funds which are not visible.
The uncontroverted evidence is that appellee’s high standard of living has not diminished. Just as such invisible sources of income are relevant to the issue of ability to pay, they are also a proper subject for discovery and cross-examination.1 It was error to prevent full cross-examination as to appellee’s unreported and invisible sources of income and as to discrepancies between his financial affidavit and business records.
Reversed and remanded for further proceedings.
. See Estreicher & Kornreich, Imputing Income: Proving the Unprovable, Fla.B.J., April, 1985, at 56.
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Cited By
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Marks v. Marks, 576 So. 2d 859 (Fla. 3d DCA 1991)…financial position and whether there existed such a permanent change of his circumstances that the wife’s alimony should be terminated. The evidence was relevant to the issue of the ability to pay and should have been admitted. See Toback v. Toback, 483 So. 2d 882 (Fla. 3d DCA 1986). The wife’s remaining point on appeal also has merit. The wife’s defense to the husband’s petition for modification of alimony was that she had a negative net worth and a net income loss, i.e., she had the requisite need. To coun…
Authorities Cited
- Bucci v. Bucci, 350 So. 2d 786 (Fla. 3d DCA 1977)