JAMES E. BLYTHE, APPELLANT,
v.
JOY BLYTHE, APPELLEE
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In a divorce case involving a 25-year marriage, the Fourth District Court of Appeal reversed the trial court's asset distribution and remanded for reconsideration of alimony, finding that the husband received only 28% of net marital assets while the wife received 72%, an inequitable distribution without justification. The court also directed reconsideration of how the husband's pension fund was classified and whether the alimony award of $500 per week was appropriate given the changed financial circumstances.
The court reversed the inequitable asset distribution (which gave the husband 28% and wife 72% of net assets), requiring equal distribution absent justification. The court held that the trial court erred in not allocating to the husband the pre-marital portion of his pension fund. The court affirmed the health insurance award as properly crafted. The court reversed and remanded the alimony determination for reconsideration given the changed circumstances and the corrected asset distribution.
[1] A trial court must justify any unequal distribution of marital assets in a dissolution judgment.
[2] A portion of a pension fund that accrued before a marriage is not marital property and should not be allocated to the other spouse in a dissolution.
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Join FLexlaw to unlock all legal intelligence“We reverse for correction of the asset distribution, which should have been equal in the absence of a justification for disparate treatment.”
Establishes the court's core holding that marital assets must be distributed equally without clear justification for unequal treatment.
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Join FLexlaw to unlock all legal intelligenceJames and Joy Blythe were married approximately 25 years (separated for the last 10 years) with no children. They formed Blythe Enterprises, Inc. in 1…
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POLEN, Judge
James E. Blythe brings this appeal from a final judgment of dissolution and a post-judgment order requiring the payment of permanent alimony. We find merit in the former husband’s arguments and reverse the final judgment in part, remanding to the trial court for reconsideration of the distribution of assets, including the husband’s pension fund, and for reexamination of the order of permanent periodic alimony.
The parties were married approximately twenty-five (25) years, the last ten (10) of which they were separated. In 1973, the couple formed a concrete business, Blythe Enterprises, Inc., in which they each owned one-third of the stock. No children were born of this marriage, the second for both the former husband and the former wife.
The former wife was fifty-five (55) years old at the time of the trial. She had completed nine years of schooling, and had worked for Blythe Enterprises intermittently since the corporations’s inception, in the capacity of office manager. She held a realtor’s license and testified that she was not qualified for many jobs, although she had never had a problem finding employment.
The former husband also worked for Blythe Enterprises, and was in charge of securing contracts and bidding on projects. He remained in the marital home when the couple separated, and stipulated during the dissolution hearing that he would secure a loan to pay the wife one-half of the value of the marital home if the court awarded the home to him. The former husband was receiving a pension of $103.00 per month from the Indiana State Troopers.
After the couple separated, the wife continued to work for Blythe Enterprises, earning $400.00 per week. She left the company for approximately four (4) years between 1982 and 1986, but she continued to receive her salary. In 1987 the husband and wife increased their salaries and she began earning $800.00 per week, while he earned $1000.00 per week.
In its final judgment of dissolution, the trial court awarded the marital home to the husband. After this award, the total assets awarded to the husband were valued at $307,000.00, while those awarded to the wife were valued at $142,000.00. In an attempt to equalize the distribution of as sets in light of this award, the trial court awarded the wife lump sum alimony of $150,000.00. However, the trial court did not deduct this $150,000.00 from the husband’s total assets. Thus, the distribution resulted in the husband receiving twenty-eight percent (28%) of the net marital assets, while the wife received seventy-two percent (72%) of the net marital assets. The trial court did not justify this unequal treatment of the parties, nor is such a justification apparent from the record. It appears that this error may have been inadvertent.1 We reverse for correction of the asset distribution, which should have been equal in the absence of a justification for disparate treatment. Carr v. Carr, 569 So. 2d 903 (Fla. 4th DCA 1990); Bobb v. Bobb, 552 So. 2d 334 (Fla. 4th DCA 1989); Longo v. Longo, 533 So. 2d 791 (Fla. 4th DCA 1988), rev. dismissed, 542 So. 2d 989 (1989).
We find no abuse of discretion in the trial court’s decision as to the date used to determine marital property, and in its classification of items as marital or non-marital, with the exception of the husband’s Indiana State Trooper’s pension fund. It was error for the court not to have allocated to the husband that portion of the pension fund that accrued to him before the couple’s marriage. Gerbas v. Gerbos, 564 So. 2d 648 (Fla. 4th DCA 1990). On remand, the court should determine that portion, and adjust the distribution of this asset accordingly.
The final judgment also provided that the husband would be responsible for furnishing health insurance for the wife, of a type and amount equal to the insurance the parties enjoyed through their corporation. The husband argues that this award was in error because the trial court did not set a monetary limit on the cost of this health insurance. We disagree, and find no error in this award, the cost of which was apparently easily discernible by the parties, as they are presumably aware of the cost of the group health insurance policy held by their corporation at the time of the final judgment. Further, the trial court was not required to limit the husband’s liability for this expense by a specific dollar amount. See Brandenburg v. Brandenburg, 550 So. 2d 565 (Fla. 4th DCA 1989).
Lastly, we address paragraph four (4) of the final judgment, which provided in pertinent part:
As long as the Wife remains employed by Blythe Enterprises, Inc. at her present rate of pay, she is entitled to no permanent alimony, as there is no need. However, should the Wife lose her employment at Blythe Enterprises, Inc. (which seems likely after this litigation is concluded), this Court finds she would be entitled to receive $500.00 per week permanent periodic alimony from the Husband, representing the difference between her earning ability on the open market and her salary at Blythe Enterprises, Inc. Following the final judgment, and upon the wife’s motion, the trial court entered an order requiring the payment of alimony pursuant to this provision, as the wife stopped receiving a salary from the corporation. This order required the husband to pay the wife $500.00 per week.
The husband contends that the award of $500.00 per week constitutes over seventy-one percent (71%) of his net income, and that he must make payments for the wife’s health insurance and meet other obligations from the remaining twenty-nine percent (29%) of his income. On remand, the trial court should revisit this award of alimony. There are several reasons why we feel it would be appropriate for the trial court to do so. First, our remand of the equitable distribution makes such a reconsideration important. Second, we do not know from the record whether the trial judge envisioned that the husband could adjust the salary he received from the parties’ closely held corporation. Third, we are unable to determine from the trial court’s order, although it is discussed in the record, whether the trial court considered the tax consequences as they affect the wife’s need and the husband’s ability to pay.
It is within the trial court’s discretion whether to take additional testimony regarding the alimony issue, or revisit this issue on the instant record. Further, in directing the trial court to revisit this issue upon remand, we are not suggesting that the trial court is obliged to either increase or decrease the amount of permanent periodic alimony.
REVERSED AND REMANDED.
DELL and WARNER, JJ., concur. . Had the trial court intended to divide the assets 50/50, a lump sum alimony award of $71,072 to the wife would have accomplished an equal distribution of net assets assuming the accuracy of the assets and liabilities set forth on page 3 of the Final Judgment.
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Kremer v. Kremer, 595 So. 2d 214 (Fla. 2d DCA 1992)…ee also Perez v. Perez, 539 So. 2d 1178 (Fla. 1st DCA 1989); Jones v. Jones, 493 So. 2d 19 (Fla. 5th DCA 1986); Richards v. Richards, ill So. 2d 620 (Fla. 5th DCA 1985); Miller v. Miller, 466 So. 2d 356 (Fla. 5th DCA 1985). But see Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992). Contra Brandenburg v. Brandenburg, 550 So. 2d 565 (Fla. 4th DCA 1989). The husband, citing Weisfeld v. We-isfeld, 545 So. 2d 1341 (Fla.1989), also contends that the trial court erred in failing to provide in the final judgment…
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Lou Jean Miller v. Miller, 625 So. 2d 1320 (Fla. 5th DCA 1993)…red and failure to do so is ordinarily reversible error.2 Rey v. Rey, 598 So. 2d 141, 146 (Fla. 5th DCA 1992); Kirchman v. Kirchman, 389 So. 2d 327 (Fla. 5th DCA 1980); Nicewonder v. Nicewonder, 602 So. 2d 1354 (Fla. 1st DCA 1992); Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992); Werner v. Werner, 587 So. 2d 473 (Fla. 3d DCA 1991), rev. denied, 599 So. 2d 661 (Fla.1992); Sweeney v. Sweeney, 583 So. 2d 398 (Fla. 1st DCA 1991); Cameron v. Cameron, 570 So. 2d 1087 (Fla. 1st DCA 1990); Gentile v. Gentile, 56…
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Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)…Fla. 3d DCA 1994). . McLean v. McLean, 652 So. 2d 1178 (Fla. 2d DCA 1995); Miller v. Miller, 625 So. 2d 1320 (Fla. 5th DCA 1993) (Sharp, W., J., concurring specially); Nicewonder v. Nicewonder, 602 So. 2d 1354 (Fla. 1st DCA 1992); Blythe v. Blythe, 592 So. 2d 353 (Fla. 4th DCA 1992); Gentile v. Gentile, 565 So. 2d 820 (Fla. 4th DCA 1990); Calamore v. Calamore, 555 So. 2d 1302 (Fla. 4th DCA 1990). . Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994) (error to impute earnings to husband higher than he had…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bobb v. Bobb, 552 So. 2d 334 (Fla. 4th DCA 1989)
- Longo v. Longo, 533 So. 2d 791 (Fla. 4th DCA 1988)
- Carr v. Carr, 569 So. 2d 903 (Fla. 4th DCA 1990)
- Brandenburg v. Bettye J. Brandenburg, 550 So. 2d 565 (Fla. 4th DCA 1989)
- Forrest v. State, 564 So. 2d 648 (Fla. 4th DCA 1990)
- Gerbas v. Gerbas, 564 So. 2d 648 (Fla. 4th DCA 1990)