LAUREN DONSKY-LEVINE, APPELLANT/CROSS-APPELLEE,
v.
DAVID G. LEVINE, APPELLEE/CROSS-APPELLANT

Fla. 4th DCA | 1995-02-08
No. 93-0561
DELL, C.J., and GLICKSTEIN and POLEN, JJ., concur.
658 So. 2d 1023 Florida District Court of Appeal, Fourth District (1995) Positive Treatment
Cited by 16 cases

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Synopsis

In this divorce appeal, the Florida Fourth District Court of Appeal reversed and remanded a final judgment of dissolution due to the trial court's failure to comply with statutory requirements for determining alimony, inadequate asset evaluations, and incorrect conclusions of law regarding child support, medical expenses, and property sale credits.


Holding

The court held that the trial court's non-award of alimony was insupportable due to failure to comply with section 61.08 by adequately evaluating all parties' assets and liabilities. The court further held that the trial court erred in: (1) its child support reduction formula when the first child reaches eighteen; (2) its unlimited liability for medical expenses not covered by insurance; and (3) its limited scope of credit for property maintenance costs upon sale of residences.


Headnotes

[1] A trial court must make specific findings regarding the financial resources, marital and non-marital assets, and liabilities of each party in a dissolution action as requ…

[2] A trial court's failure to evaluate all assets and liabilities of the parties in a dissolution action can invalidate awards of alimony and attorney's fees.

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Key Quotes

“it is the responsibility of the lawyers and the trial court to resolve all of the issues in a dissolution matter, with meticulous attention to the details required by chapter 61 and current case law”

Establishes the legal standard for dissolution proceedings and trial court obligations

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Facts & Procedural History

The case involved dissolution of marriage between Lauren Donsky-Levine (wife) and David G. Levine (husband). The trial court made a final judgment add…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal by the wife and cross-appeal by the husband from a final judgment of dissolution. We reverse and remand with direction.

At oral argument, we expressed our concerns with omissions from the final judgment as well as errors on its face. As for the former, it is the responsibility of the lawyers and the trial court to resolve all of the issues in a dissolution matter, with meticulous attention to the details required by chapter 61 and current case law. In the absence of such attention, needless, expensive post-trial, and appellate activity will occur, as in this case. Any award for further fees incurred on remand should be made with due regard for the concern expressed here. If a trial court and the attorneys, at the conclusion of testimony, are discussing resolution of the issues — as here — then that discussion requires a punctilious and complete mental checklist of the issues and the findings required by law.

Here, noncomplianee with section 61.08, Florida Statutes (1991), makes the non-award of alimony insupportable. The trial court was obligated, by said statute to make findings as to the “financial resources of each party, the non-marital and marital assets and liabilities of each.” Although it did not err in its evaluation of the appreciation of the husband’s business, the trial court failed to evaluate either of the parties’ businesses, or their insurance cash values, stock certificates, money market, IRA accounts and the special account controlled by the husband. It further failed to determine whether or not an alleged $10,000 existed. Finally, it apparently gave no consideration to any reservation of jurisdiction or other economic safety valve for the wife. See McClay v. McClay, 447 So. 2d 1026 (Fla. 4th DCA 1984).

The above defects in findings invalidated the trial court’s award to the wife of sixty-five percent of her attorney’s fees. One-hundred percent should be granted if there is great disparity in post-division assets or income. See Thompson v. Thompson, 550 So. 2d 1168 (Fla. 4th DCA 1989). Absent an evaluation of assets, a trial court cannot determine disparity. Moreover, in this ease, the trial court made no finding as to why a full award was not made as required by Wilkins v. Wilkins, 546 So. 2d 44 (Fla. 4th DCA 1989). Finally, in this regard, the trial court failed to rule upon the wife’s requests for costs.

Based on the transcripts before us, we further conclude that the final judgment contains three areas with incorrect conclusions of law:

First, the reduction of child support by fifty percent when the first child reaches eighteen is not consistent with the guidelines and should be remanded for a determination of what the child support requirements will be when only one child is supported. Another basis for this determination is that this is one of the few substantive areas discussed by the trial judge during the December and January hearings. He indicated that such ruling was not his intent. Thus, this particular written ruling in fact does not comport with the judge’s oral ruling.

Second, the final judgment indicates that appellant is responsible for paying medical expenses not covered by insurance. Liability for such expenses should be limited to those medical expenses which are reasonable and necessary. Brandenburg v. Brandenburg, 550 So. 2d 565 (Fla. 4th DCA 1989). Although Brandenburg concerned payment of an ex-spouse’s expenses, the same limitation would seemingly apply to medical expenses of the children.

Third, the final judgment provides that upon sale of the two respective residences, the paying spouse will receive “a credit for one-half of the mortgage principal, taxes and necessary capital repairs, paid by [that spouse].” As the wife asserts, such credit should be given for mortgage interest and principal payments, taxes, insurance, maintenance, and repairs from the time of separation to the date of the sale. Greenberg v. Greenberg, 602 So. 2d 626 (Fla. 4th DCA 1992); Hoyt v. Hoyt, 457 So. 2d 599 (Fla. 1st DCA 1984); Delehant v. Delehant, 442 So. 2d 1009 (Fla. 4th DCA 1983); Guthrie v. Guthrie, 315 So. 2d 498 (Fla. 4th DCA 1975).

As to all of the foregoing errors, we reverse and remand with instruction for the trial court to remedy same.

Other
PER CURIAM.

ON MOTION FOR REHEARING/CLARIFICATION

PER CURIAM.

While we deny appellant/cross-appel-lee’s motion for rehearing, our opinion did not address two further inconsistencies between the trial court’s original remarks and the final judgment. The reason for such was the absence of any transcript of an intervening hearing, at which — theoretically—the trial judge could have abandoned his earlier expressions. The parties’ children are affected by the two inconsistencies addressed in the motion; namely, a requirement to carry life insurance and an eighty percent minimum of health insurance coverage. Our reversal and remand will provide the trial judge with the opportunity to address them, notwithstanding the absent transcript.

As for the issue of the five-year payout to the wife of her interest in the appreciation of husband’s business and the failure to secure such payment by a lien or life insurance policy, the issue was argued and not overlooked on appeal. The wife did not establish error. DELL, C.J., and GLICKSTEIN and POLEN, JJ., concur.


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Citator

Cited By

  • Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996)
    …from the same lack of factual findings. A trial court “shall include findings of fact relative to the factors enumerated in [section 61.08(2)] supporting an award or denial of alimony.” § 61.08(1), Fla.Stat. (1993); see also Donsky-Levine v. Levine, 658 So. 2d 1023, 1025 (Fla. 4th DCA 1995). On remand, the trial court must support any decision concerning alimony with the statutorily required factual findings. We also hold that the notice for the hearing on the motion for contempt was insufficient. See Goral v…
  • Sasnett v. Odell O. Sasnett, 679 So. 2d 1265 (Fla. 2d DCA 1996)
    …a complete lack of findings as to any characterization of assets. The trial court also erred in failing to make the factual findings required by section 61.08, Florida Statutes (1995), with respect to the award of alimony. Donsky-Levine v. Levine, 658 So. 2d 1023 (Fla. 4th DCA 1995). In determining the proper amount of alimony, the court must consider all relevant economic factors, including their standard of living during the marriage, the duration of the marriage, the parties’ ages and physical and emotion…
  • Ingrid Parry v. Parry, 933 So. 2d 9 (Fla. 2d DCA 2006)
    …became emancipated upon his graduation from high school, which was anticipated to occur approximately one month after entry of the final judgment. Child support awards must be based on the statutory guidelines. § 61.30; see Donsky-Levine v. Levine, 658 So. 2d 1023 (Fla. 4th DCA 1995) (reversing fifty percent reduction of child support when first child reaches majority and remanding for determination of child support required under statutory guidelines when only one child remains at home). Finally, we affirm…

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