122 So. 3d 382
Fla. Dist. Ct. App.2012Background
- Former Husband Albert Vitro and Former Wife Mary Vitro married on July 25, 1987 and sought dissolution in 2009.
- They maintained an opulent lifestyle, including a 3000-square-foot home in Coral Springs, furnishings around $90,000, private school for children, and luxury expenditures.
- Former Husband became disabled and received private and Social Security disability benefits; his monthly income included $6742 private, $1898 Social Security, and $997 child support offset from SSA.
- Former Wife worked as administrative staff and was unemployed at trial; the court imputed Former Wife’s income at $80,000 annually, while she had a $60,000 peak prior to layoff and later earned less.
- The final judgment ordered permanent periodic alimony of $2500 per month to Former Wife, with arrears of $42,500, and ongoing child support obligations.
- Appeals challenged alimony amount, retroactive alimony, and the equitable distribution of marital assets and liabilities, including debt and college fund obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Imputation of income | Vitro contends Wife’s income should be imputed higher (≈$45k). | Vitro argues higher imputation is supported by employment potential and history. | Imputation set at $30,000; supported by evidence and best-judgment of trial court. |
| Retroactive alimony timing and amount | Retroactive alimony from late 2008 is proper given need and ability to pay. | Arrearage calculation improper; petition filed in Feb 2009; record lacks basis for late-2008 relation. | Reversed in part; retroactive alimony of $42,500 remanded for reassessment with correct date range. |
| Equitable distribution of credit card debt | Former Husband sought to retain home and debt; some credits against unequal distribution. | Record supports Husband’s assertion of agreement to credit/debtor allocation; no clear stipulation to assume full debt by Wife. | Reversed; remand for specific findings on credit card debt per §61.075, with proper allocation. |
| Florida Prepaid College Fund obligations | Final judgment fails to specify remaining payments and responsibility. | No agreement on college fund payments; Court must identify liabilities per statute. | Remanded to determine who is responsible for remaining college fund payments. |
| Vehicle-related expenses and insurance | Final judgment lacks findings on insurance and lease expenses. | Parties anticipated continued payment responsibility pending vehicle swaps; no specific findings. | Remanded for written findings on vehicle insurance and lease expenses. |
Key Cases Cited
- Schram v. Schram, 932 So.2d 245 (Fla. 4th DCA 2005) (income imputation requires competent evidence and consideration of earning potential)
- Zarycki-Weig v. Weig, 25 So.3d 573 (Fla. 4th DCA 2009) (two-step test for determining voluntary unemployment and earning capacity)
- Vazquez v. Vazquez, 922 So.2d 368 (Fla. 4th DCA 2006) (voluntary underemployment requires good faith effort to obtain comparable income)
- Valentine v. Van Sickle, 42 So.3d 267 (Fla. 2d DCA 2010) (retroactive alimony requires need and ability to pay; review for abuse of discretion)
- Alpert v. Alpert, 886 So.2d 999 (Fla. 2d DCA 2004) (absence of proper findings precludes meaningful appellate review of retroactive alimony)
- Jaffy v. Jaffy, 965 So.2d 825 (Fla. 4th DCA 2007) (standard of living is of limited value in alimony decisions when income is insufficient for lifestyle)
- Donoff v. Donoff, 940 So.2d 1221 (Fla. 4th DCA 2006) (standard of living not sole factor; consider current income)
- Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980) (income includes various sources; trial court has discretion in calculating alimony)
- Witt v. Witt, 74 So.3d 1127 (Fla. 2d DCA 2011) (statutory requirements for asset/liability findings in equitable distribution)