SHIRLEY BUSH, N/K/A SHIRLEY WALKER, APPELLANT,
v.
O. DAVID BUSH, APPELLEE
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Shirley Bush appealed a final judgment of divorce, challenging the trial court's awards of alimony and equitable distribution. The appellate court affirmed the alimony award but reversed the equitable distribution portion because the trial court improperly included a depleted marital asset account in the distribution scheme.
The trial court did not abuse its discretion in the alimony award given the parties' circumstances. However, the trial court erred in including the depleted Rabat account in the equitable distribution scheme without finding that Mrs. Bush committed misconduct in depleting it.
[1] A trial court does not abuse its discretion in awarding alimony when considering the parties' circumstances, including the length of the marriage and their approaching re…
[2] A trial court errs in equitable distribution by awarding a depleted marital asset to a party when the depletion occurred during the pendency of dissolution proceedings an…
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Join FLexlaw to unlock all legal intelligence“It was error for the trial court to include these depleted marital assets in the equitable distribution scheme because the Husband used this sum during the pendency of the dissolution proceedings, and no misconduct was asserted.”
Establishes the legal standard that depleted marital assets should not be awarded in equitable distribution absent a finding of misconduct.
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Join FLexlaw to unlock all legal intelligenceThe parties were remarried to each other for a substantial duration and had two grown children. Both parties were approaching retirement age at separa…
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Shirley Bush appeals from a final judgment of dissolution of her marriage to O. David Bush, claiming errors in the amount of alimony the trial court awarded her and the equitable distribution scheme. We affirm in part and reverse in part.
This marriage was the parties’ second marriage to each other and it was of substantial duration. The parties had two grown children and, at the time of separation, were each quickly approaching retirement age. During the marriage they had enjoyed a modest lifestyle during which time they had accumulated a moderate amount of assets and liabilities. Besides owning several homes, their main source of income was the family business, a debris and disaster cleanup operation in which Mr. Bush was the prime mover. They each also had small incomes from government sources.
The trial court had awarded Mrs. Bush no temporary alimony but in the final judgment did award her $35,000 in lump sum alimony and nominal permanent alimony. And the trial court made an admirable attempt at splitting the marital assets equally. Mrs. Bush claims that, given her alleged disabilities and the lengthy term of this marriage, the alimony awarded to her is insufficient. But, in the parties’ circumstances, we find no abuse of discretion in the trial court’s award of alimony to her.
We conclude, however, that the trial court erred in one respect in the equitable distribution scheme. One of the marital assets was an account that was valued at approximately $143,000, the account the parties referred to as “the Rabat account.” The trial court had awarded no temporary alimony to Mrs. Bush, explaining in the final judgment that she had spent the money in this account for her needs during the pendency of the dissolution proceedings. The trial court awarded this account to Mrs. Bush in the final judgment despite the fact that it was depleted by that time. This was error. See Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005) (“It was error for the trial court to include these depleted marital assets in the equitable distribution scheme because the Husband used this sum during the pendency of the dissolution proceedings, and no misconduct was asserted.”). Here, the trial court made no finding that Mrs. Bush had committed misconduct in depleting the Rabat account in this way.
We therefore affirm the alimony portion of final judgment of dissolution but reverse *1103the portion dealing with equitable distribution. On remand, the trial court shall reconsider the equitable distribution in light of the depletion of the Rabat account.
Affirmed in part, reversed in part, and remanded.
CASANUEVA, KHOUZAM, and CRENSHAW, JJ, Concur.
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Citator
Cited By
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Schmidt v. Schmidt, 120 So. 3d 31 (Fla. 4th DCA 2013)…The temporary support order indicates that $103,872 of this amount was used to pay living expenses the wife incurred prior to entry of the temporary support order. It was not error for the judgment to fail to include the $103,872. See Bush v. Bush, 65 So. 3d 1101, 1102 (Fla. 2d DCA 2011) (holding it was error to equitably distribute $143,000 account expended for support during pendency of proceedings). The husband’s argument has merit, however, to the extent that the judgment failed to address that portion…
Authorities Cited
- Johnson v. State, 899 So. 2d 1283 (Fla. 5th DCA 2005)
- Stephen D. Plichta, Jr., M.D. v. Plichta, 899 So. 2d 1283 (Fla. 2d DCA 2005)