Fortune v. Fortune
2011 Fla. App. LEXIS 5942
Fla. Dist. Ct. App.2011Background
- Fortune v. Fortune involves a 1991 marriage that ended with a dissolution judgment in 2009 after the couple moved from Michigan to Florida in 2007.
- The couple has five children who were minors at dissolution; the wife was a homemaker and homeschooler, and the husband ran successful financial planning businesses.
- During separation (initiated January 2008), the husband claimed no income; the wife worked part-time and attended college, seeking alimony and proper asset/liability division.
- The trial court denied permanent alimony and did not reserve jurisdiction for alimony; it awarded 60% of parental time to the wife and imputed $1,000 monthly income to each parent for child support purposes.
- Equitable distribution treated a $150,000 purported advance from the husband’s Florida business as a marital debt, awarding most of it to the husband and imposing a $22,000 equalizer payment on the wife, which the court later rebalanced on remand.
- The final judgment also transferred tax exemptions and credits, and did not grant the wife her request to restore her maiden name, all subject to appellate remand for the issues identified.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the $150,000 loan from Prosperitas is a marital debt. | Fortune argues the loan should not be marital debt. | Fortune contends the loan is marital debt since used for marital purposes and incurred during marriage. | Reversed; remand for reevaluation of the loan as marital debt. |
| Whether permanent alimony or nominal alimony should have been awarded. | Fortune argues for permanent or nominal alimony to preserve jurisdiction. | Fortune argues husband’s future earnings may justify ongoing support; trial court erred by not awarding nominal alimony. | Reversed; remand to award nominal permanent alimony to retain jurisdiction. |
| Whether tax exemptions should be allocated without conditioning on current child support payments. | Fortune seeks to transfer exemptions; husband to be current in child support. | Fortune argues exemptions should be allocated directly to husband and conditioned on current support. | Reversed; remand to condition exemptions on husband being current in child support. |
| Whether the wife should be permitted to resume her maiden name. | Fortune requested restoration of her maiden name. | Husband acknowledged the right to name restoration but the judgment failed to address it. | Reversed; remand to restore the wife’s maiden name. |
Key Cases Cited
- Buxton v. Buxton, 963 So.2d 950 (Fla. 2d DCA 2007) (de novo review of marital asset/liability classification)
- Walker v. Walker, 827 So.2d 363 (Fla. 2d DCA 2002) (exclude nonmarital portions of loans used for nonmarital expenses)
- O’Brien v. O’Brien, 899 So.2d 1133 (Fla. 5th DCA 2005) (admission of hearsay evidence in dissolution context)
- Bishop v. Bishop, 47 So.3d 326 (Fla. 2d DCA 2010) (equalizer payments must reflect ability to pay)
- Schmidt v. Schmidt, 997 So.2d 451 (Fla. 2d DCA 2008) (nominal alimony to retain jurisdiction when future change possible)
- Nourse v. Nourse, 948 So.2d 903 (Fla. 2d DCA 2007) (nominal alimony to preserve jurisdiction upon changing circumstances)
- Wamsley v. Wamsley, 957 So.2d 89 (Fla. 2d DCA 2007) (tax exemptions; conditional transfer when support is current)
- Davies v. Turner, 802 So.2d 1195 (Fla. 1st DCA 2002) (conditioning tax exemptions on support status)