VALERIE K. FAIRCHILD, APPELLANT/CROSS-APPELLEE,
v.
PATRICK G. FAIRCHILD, APPELLEE/CROSS-APPELLANT

Fla. 5th DCA | 2014-04-04
No. 5D11-2755
PALMER, ORFINGER and LAWSON, JJ., concur.
135 So. 3d 537 Florida District Court of Appeal, Fifth District (2014) Positive Treatment
Cited by 1 case

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Synopsis

In this family law dissolution case, the Florida District Court of Appeal, Fifth District, reviewed a final judgment of dissolution and found that the trial court erred in its equitable distribution calculations in several respects, including improper crediting of maintenance expenses, failure to treat certain 401(k) benefits as marital assets, and incorrect allocation of child support-related expenses.


Holding

The court held that: (1) Dr. Fairchild should receive a credit of $72,000 (not $144,000) for maintenance expenses; (2) Ms. Fairchild is entitled to a credit of $5,377.11 for her maintenance expenses; (3) Ms. Fairchild is entitled to half of the $8,425.54 in 401(k) benefits from terminated employees' accounts; (4) the final judgment must specify the effective date for child support termination, and uncovered medical expenses must be allocated pro rata rather than 50/50, with Ms. Fairchild not responsible for expenses that would be covered by insurance but for Dr. Fairchild's failure to submit; and (5) Dr. Fairchild is entitled to credit for half the marital funds Ms. Fairchild used for attorney's fees.


Headnotes

[1] A party is entitled to a credit for one-half of the funds they expended to maintain a marital property during the pendency of a divorce proceeding.

[2] Forfeited 401(k) benefits from employees terminated prior to the filing of a petition for dissolution are considered marital assets subject to equitable distribution.

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Key Quotes

“All vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution”

Establishes the statutory basis for treating the 401(k) benefits from terminated employees as marital assets because they vested during the marriage

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Facts & Procedural History

The Fairchilds were parties to a dissolution proceeding. Dr. Fairchild expended funds for upkeep of a Clermont property during the pendency of the div…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Valerie K. Fairchild (“Ms.Fairehild”) timely appeals a final judgment of dissolution, raising five issues. On cross-appeal,Patrick G. Fairchild (“Dr.Fairchild”) raises six issues. Relief is warranted as to four issues raised by Ms. Fairchild, and one issue raised by Dr. Fairchild.

First, the parties agree the trial court erred in its equitable distribution worksheet by crediting Dr. Fairchild with $144,000 in equitable distribution for his contributions toward the upkeep of a Cler-mont home during the pendency of the divorce. As Dr. Fairchild properly concedes, the correct credit should be $72,000 (one-half of the monies he expended in connection with upkeep of the Clermont property).

Second, we agree with Ms. Fairchild that she is also entitled to a credit for one-half of the $10,754.22 that she spent to maintain the Clermont property during the pendency of the divorce proceeding (a credit of $5,377.11).

Third, Ms. Fairchild is correct that she is entitled to half the 401(k) benefits forfeited to Dr. Fairchild from the accounts of three employees terminated from his medical practice prior to the date of the filing of the petition for dissolution. Ms. Fair-child’s half totals $8,425.54, plus or minus gains or losses attributable to these funds. Because Dr. Fairchild’s right to this money was vested when these employees were terminated, prior to the divorce filing, the funds should have been treated as marital funds. See § 61.075(6)(a)l.d., Fla. Stat. (2011) (defining marital assets to include “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs”); § 61.076(1), Fla. Stat. (2011) (instructing that “[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs are marital assets subject to equitable distribution”).

Fourth, the parties agree that the final judgment should include the month, day and year that the reduction or elimination of child support will become effective, and that the trial court erred in ordering the parties to split the cost of their minor child’s uncovered medical expenses 50/50. As Dr. Fairchild properly concedes, these expenses should be split on a pro rata basis. See, e.g., Zinovoy v. Zinovoy, 50 So.3d 763, 764 (Fla. 2d DCA 2010) (recognizing that absent some logically established rationale in the final judgment to the contrary, collateral child support ex*538penses must be allocated in the same percentage as the child support allocation); Edel v. Walker, 927 So.2d 989, 992 n. 1 (Fla. 5th DCA 2006) (noting that former husband should pay the son’s uncovered medical expenses in accordance with his percentage share of child support). Although not conceded by Dr. Fairchild, we also agree with Ms. Fairchild that she should not be required to pay any part of the child’s medical expenses that would be covered by insurance but for Dr. Fair-child’s unilateral decision to not submit the expenses for payment by the insurance carrier.

Finally, we agree with Dr. Fairchild that the trial court erred in failing to credit him with half of the marital funds that Ms. Fairchild used during the pendency of the dissolution to pay her attorney’s fees. The record reflects that although Dr. Fairchild paid his attorney’s fees from non-marital funds, Ms. Fairchild used a marital account to pay her attorney $114,000. If Ms. Fairchild is in need of assistance with her fees after the equitable distribution equalizing payment is made (as recalculated based upon our resolution of issues affecting that calculation on appeal), she may file a motion for fees pursuant to section 61.16, Florida Statutes.

We have carefully considered the other issues raised on appeal and cross-appeal, but affirm the trial court’s order in all other respects.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR FURTHER PROCEEDINGS.

PALMER, ORFINGER and LAWSON, JJ., concur.


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