Tummings v. Francois
2011 Fla. App. LEXIS 12556
| Fla. Dist. Ct. App. | 2011Background
- Morris, J. presides over dissolution of Elisia Tummings and Felix Francois after 12 years of marriage; two minors exist.
- Dissolution filed November 2008; final judgment entered April 2010.
- Wife earns $7,833 monthly as Home Depot retail manager; husband earns $1,946 monthly as nursing assistant.
- Trial court denied alimony; ordered shared parental responsibility with 57/43 overnight splits and wife paying $596.26 monthly child support.
- Equitable distribution: assets minus liabilities equitably split at $98,483 each; wife to pay husband four equalizing payments totaling $66,332.
- Appellate issues concern inclusion of wife’s bonuses as marital assets, and improper classification of a Visa balance as marital debt; cross-appeal addresses noncovered medical expenses and attorney’s fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Bonuses as marital assets | Tummings: bonuses dissipated, no misconduct finding; should not be assets. | Francois: bonuses based on corporate profits; should be marital assets. | Reversed; bonuses not to be included in distribution; remand for removal of bonuses. |
| Visa balance as marital debt | Tummings: $1342 properly included as business expenses reimbursed by employer. | Francois: balance includes non-marital business expenses not reimbursed. | Reversed; remove $1342 from marital debt and recalculate. |
| Noncovered medical expenses allocation | Francois: expenses to be allocated per child support share. | Francois: expenses should follow overnight percentage. | Reversed; allocate per each party’s percentage share of child support need. |
| Attorney’s fees and costs | Francois: wife’s income disparity justifies fee award; trial court erred. | Francois: disparity should be considered; wife unable to pay. | Reversed; remand to consider income disparity in fee award. |
Key Cases Cited
- Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008) (dissipation of assets requires specific misconduct finding for inclusion in distribution)
- Levy v. Levy, 900 So.2d 737 (Fla. 2d DCA 2005) (no misconduct finding when dissipation for living/litigation expenses)
- Cooper v. Cooper, 639 So.2d 158 (Fla. 2d DCA 1994) (depleted asset inclusion error when funds used for support without misconduct finding)
- Johnson-Gainer v. Gainer, 921 So.2d 798 (Fla. 5th DCA 2006) (marital asset used to pay temporary support aligns with evidence)
- Hutto v. Hutto, 842 So.2d 994 (Fla. 2d DCA 2003) (consider income disparity in attorney’s fee awards)
- Adair v. Adair, 720 So.2d 316 (Fla. 4th DCA 1998) (income disparity affects fee award decisions)