FRANCIS CERVONI, APPELLANT,
v.
ANN MARIE CERVONI, APPELLEE
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In this dissolution of marriage appeal, the Third District Court of Appeal reversed the trial court's determination of the husband's income for child support purposes, the equitable distribution of marital assets, and the denial of attorney's fees, finding that the valuations were not supported by competent evidence and that the wife's superior earning capacity warranted reconsideration of the fee request.
The court reversed the income determination and child support award because the $30,000 annual income finding lacked support in the competent evidence presented, reversed the equitable distribution because the asset valuations were inconsistent with testified values, and reversed the denial of attorney's fees because the wife's earnings more than doubled the husband's and the case was not frivolous, warranting reconsideration under section 61.16 of the Florida Statutes.
[1] A trial court's determination of a party's income for child support purposes must be supported by substantial competent evidence.
[2] A trial court abuses its discretion when it imputes income to a party without making the required findings.
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Join FLexlaw to unlock all legal intelligence“The only testimony presented was that the husband had earned $26,500 the previous year and was recently employed in a position which would lead to a maximum of $28,800 gross earnings for the year.”
Demonstrates that the trial court's finding of $30,000 net annual income was not supported by evidence presented at trial.
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Join FLexlaw to unlock all legal intelligenceFrancis and Ann Marie Cervoni divorced after an eleven-year marriage with two minor children. The husband, an architect, earned $26,500 in 1996 from h…
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SHEVIN, Judge.
Francis Cervoni appeals, a final judgment of dissolution of marriage, asserting that the trial court erred in determining his income; fashioning the equitable, distribution scheme, and denying his motion for attorney’s fees. Addressing each point in turn, we reverse the final judgment, except for the dissolution of the marriage, and remand for further proceedings.
The wife petitioned, and the husband counter-petitioned, for dissolution of the parties’ eleven-year marriage. The parties have two minor children. The court held a one-day trial; only the parties testified regarding their incomes and asset values.
The husband, an architect, worked for an interior design firm until he was laid off in 1992. At that time he began his own firm, Frank Cervoni and Associates. His business suffered several setbacks as a result of the parties’ separation, and the husband has begun marketing strategies to attract business. Because of the setbacks, the husband earned $26,500 in 1996. The husband had been looking for outside employment, and at the time of the trial had recently accepted employment with a design firm for eighteen to twenty hours a week, at $30 an hour. This position would lead to gross earnings of approximately $25,920 to $28,800 yearly. The wife is a senior manager for marketing services with Ryder Corporation, earning $73,-000 yearly plus annual bonuses.
The wife testified that she has a 401K plan worth $11,394; estimated the value of the marital home’s furnishings at $8000, including the furniture, electronics, crystal, china and other household goods; valued her jewelry at $2500; and estimated the value of the husband’s truck at approximately $3000, and the business equipment at $7000.
The husband valued his truck at $3000, his business equipment at $3500, and stated that the business was valued at $7000 for intangible tax purposes. The husband also estimated the value of the marital home furnishings to be $17,589, and the value of the wife’s jewelry to be $10,000.
In the final judgment, the court found that the husband’s net income was $2500 monthly, or $30,000 annually, and ordered child-support payments based on that figure. The court awarded the wife exclusive use of the marital home, the parties’ major asset, until the youngest child reaches majority (some fourteen years hence), at which time the home will be sold and the proceeds divided among the parties.
In its equitable distribution, the trial court awarded the husband half the equity in the marital residence, his business, which it valued at $10,000, and the truck, which it valued at $4000. The court awarded the wife half the equity in the marital home, her 401K, which it valued at $11,000, and the furnishings in the marital residence, which it valued at $3000. The court did not assign any value to the wife’s jewelry. The wife asserts that the jewelry is encompassed in the $3000 valuation of the marital home furnishings and personal effects the court awarded her. The trial court denied the husband’s attorney’s fees request. The husband appeals.
We agree with the husband’s first assertion that the trial court abused its discretion in basing its child support award on the finding .that his “net income is $2,500.00 per month[,]” or $30,000 net annually. This finding is not supported by substantial competent evidence introduced at the trial and must be reversed. See Suarez v. Suarez, 627 So. 2d 602 (Fla. 3d DCA 1993). The only testimony presented was that the husband had earned $26,500 the previous year and was recently employed in a position which would lead to a maximum of $28,800 gross earnings for the year. Moreover, no evidence was introduced to support any finding imputing income to the husband, the court never announced, that it was imputing income, and it never made the findings required to impute income. See Chapoteau v. Chapoteau, 659 So. 2d 1381 (Fla. 3d DCA 1995). Because the court’s finding regarding the husband’s income is not supported by competent substantial evidence, the award of child support based on that finding is reversed. On remand, the court shall award child support based on the husband’s income as supported by the parties’ testimony.
The husband next argues that the trial court abused its discretion in fashioning the equitable distribution of the parties’ assets. The husband has no quarrel with the equal division of the marital home’s equity, but argues that the trial court’s valuation of the remaining marital assets is not supported by the evidence and has the effect of dramatically shortchanging the husband. The husband’s argument is well founded. The following chart demonstrates the discrepancies between the court’s valuations and the values in the testimony:- WIFE’S AWARD
Court’s Value Wife’s Testimony Husband’s Testimony
401K 11,000 11,394
Furn. 3,000 8,000 17.589
Jewelry Not 2,500 10,000
Valued
TOTALS 14,000 21,894 27.589
A trial court’s “valuations of property must be consistent with the evidence.” Eckroade v. Eckroade, 570 So. 2d 1347, 1348 (Fla. 3d DCA 1990); see also Polley v.Polley, 588 So. 2d 638, 642 (Fla. 3d DCA 1991). Because our review of the record demonstrates that the equitable distribution valuations are not supported by the evidence presented at trial, we reverse the equitable distribution fashioned by the court.
The husband argues, as his last point on appeal, that the court abused its discretion in denying him attorney’s fees in light of the wife’s superior earning ability. The record in this case demonstrates that the wife’s earnings are at more than twice the husband’s earnings, and that the wife has the ability to pay the fees. Under section 61.16, Florida Statutes (1997), attorney’s fees are to be awarded based on the parties’ relative financial resources. In Rosen v. Rosen, 696 So. 2d 697 (Fla.1997), the Florida Supreme Court reiterated the standard announced in the seminal case of Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), that the purpose of a fee award is to ensure that both parties have access to competent counsel. Rosen, 696 So. 2d at 699. In this case, the parties’ financial resources are not equal. The wife has superior ability to pay fees when her earnings are compared with the husband’s earning ability. Additionally, this case does not present a scenario where the litigation “is frivolous or spurious or was brought primarily to harass the adverse party[.]” Rosen, 696 So. 2d at 701. On remand, the court shall reconsider the husband’s fee request upon refashioning the equitable distribution in light of these standards.
HUSBAND’S AWARD
Court’s Wife’s Husband’s Value Testimony Testimony
Bus, 10,000 7,000 3,500
Truck ' 4,000 3,000 3,000
14,000 ' 10,000 6,500
Based on the foregoing reasoning, we reverse the final dissolution judgment, except for the dissolution of the marriage, and remand for recalculation of the husband’s income and-the child-support obligation, as well as reconsideration of the equitable distribution scheme and the husband’s attorney’s fees request.
Reversed and remanded with instructions.
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Gaylen Lee Reddick v. Reddick, 728 So. 2d 374 (Fla. 5th DCA 1999)…COBB, J. An award of child support must be supported by substantial competent evidence in the record. See Cervoni v. Cervoni, 715 So. 2d 282 (Fla. 3d DCA 1998). We write in this case to clarify what constitutes competent evidence. The husband argues that an award of $1,100.00 in child support is not supported by substantial competent evidence in the record. The trial court relied on the…
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Banton v. Parker-Banton, 756 So. 2d 155 (Fla. 4th DCA 2000)…garte, 608 So. 2d 838 (Fla. 3d DCA 1992). Further, because the parties’ relative financial positions may change, the trial court should also revisit Former Husband’s request for attorney’s fees, if necessary to ensure equity. See Cervoni v. Cervoni, 715 So. 2d 282 (Fla. 3d DCA 1998). On remand, the trial court should also correct two scrivener’s errors. First, there appears to be a mathematical error in the trial court’s calculation of each party’s fifty percent share of the National Citibank marital liabili…
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Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)
- Eckroade v. Eckroade, 570 So. 2d 1347 (Fla. 3d DCA 1990)
- Polley v. Polley, 588 So. 2d 638 (Fla. 3d DCA 1991)
- Chapoteau v. Jean-Rene Chapoteau, 659 So. 2d 1381 (Fla. 3d DCA 1995)
- Chastain v. Scandinavian Health Spas & Am. States Ins., 659 So. 2d 1381 (Fla. 1st DCA 1995)
- Suarez v. Suarez, 627 So. 2d 602 (Fla. 3d DCA 1993)