No. 88-1849 | Fla. Dist. Ct. App. | Aug 31, 1989
Dissenting Opinion
dissenting.
The majority holds that the trial court made a finding that there was an equitable distribution of marital assets, and that we must accept this finding as neither side challenges it. However, equitable distribution may encompass more than a distribution of assets. It includes a combination of such remedies as lump sum alimony, permanent periodic alimony, and exclusive use of property.
In the case sub judice, the finding that assets were equitably distributed was contained in a judgment that also awarded the wife permanent, periodic alimony of $4,000.00 per month. Because of the alimony provision and the lack of specific findings of facts as to asset values, I believe we should either affirm in to to or remand to the trial judge to make factual findings. The distribution of marital assets and an award of permanent periodic alimony, inter alia, as remedies in a dissolution proceeding, are parts of an overall scheme that should be reviewed “not piecemeal but as a whole.” (emphasis in original) Thompson v. Thompson, 546 So. 2d 99" court="Fla. Dist. Ct. App." date_filed="1989-07-07" href="https://app.midpage.ai/document/thompson-v-thompson-1838337?utm_source=webapp" opinion_id="1838337">546 So.2d 99 (Fla. 4th DCA 1989). That is to say, the distribution may be deemed “equitable” because an inequitable distribution of assets was offset by permanent, periodic alimony.
The record here is confused, and could support a minimum valuation of $994,000 in assets awarded to the wife, and a valuation in excess of $1,640,000 in assets to the husband,
Where a court cannot adequately review a judgment due to the lack of factual findings, an appellate court should either affirm or remand to the trial court with directions to make such findings. Clemson v. Clemson, 546 So. 2d 75" court="Fla. Dist. Ct. App." date_filed="1989-06-30" href="https://app.midpage.ai/document/clemson-v-clemson-1838622?utm_source=webapp" opinion_id="1838622">546 So.2d 75, 77 (Fla. 2d DCA 1989); Miceli v. Miceli, 533 So. 2d 1171" court="Fla. Dist. Ct. App." date_filed="1988-08-03" href="https://app.midpage.ai/document/miceli-v-miceli-1610525?utm_source=webapp" opinion_id="1610525">533 So.2d 1171 (Fla. 2d DCA 1988); Barrs v. Barrs, 505 So. 2d 602" court="Fla. Dist. Ct. App." date_filed="1987-04-10" href="https://app.midpage.ai/document/barrs-v-barrs-1885697?utm_source=webapp" opinion_id="1885697">505 So.2d 602 (Fla. 1st DCA 1987); cf., Penmont Enterprises, Inc. v. Dysart, 340 So. 2d 1285" court="Fla. Dist. Ct. App." date_filed="1977-01-04" href="https://app.midpage.ai/document/penmont-enterprises-inc-v-dysart-1770193?utm_source=webapp" opinion_id="1770193">340 So.2d 1285 (Fla. 3d DCA), cert. denied, 352 So.2d 173 (Fla.1977).
I would therefore either affirm or remand with directions.
. Exclusive of artwork, china and crystal.
Lead Opinion
In this case the trial court purported to equitably distribute marital property, leaving each party well in excess of $1,000,-000.00. The primary physical residence of the minor child was awarded to the husband, and the wife was not obligated to contribute any child support. In addition, the husband was ordered to pay $4,000.00 per month to the wife as permanent periodic alimony, and it is this latter award that is challenged on appeal.
These parties had an affluent life-style, supported by multiple investments. From the judgment entered below, it cannot be mathematically ascertained that the trial court equally divided those investments, since there were no specific findings in regard to the value of individual items. Since the trial court found that there was an equitable division of these properties, and that finding is not challenged on appeal by either party, we must accept it. From that point, it follows that it was error to award pure alimony to the wife in addition to the equitable distribution of the investment assets. The trial court cannot force one spouse to a lesser standard of living in order to maintain the other spouse at a higher level. Woodard v. Woodard, 477 So.2d 631 (Fla. 4th DCA 1985), review denied, 492 So.2d 1336 (Fla.1986). This is so because neither the wife’s need for alimony, nor the husband’s greater ability to pay that alimony, can be demonstrated under the facts as found by the trial court in this case. Given those findings, and the affluent circumstances of the wife, she can have no continuing interest in her former spouse’s future earnings. See Irwin v. Irwin, 539 So. 2d 1177" court="Fla. Dist. Ct. App." date_filed="1989-03-16" href="https://app.midpage.ai/document/irwin-v-irwin-1095162?utm_source=webapp" opinion_id="1095162">539 So.2d 1177 (Fla. 5th DCA 1989); Howerton v. Howerton, 491 So. 2d 614" court="Fla. Dist. Ct. App." date_filed="1986-07-24" href="https://app.midpage.ai/document/howerton-v-howerton-1808316?utm_source=webapp" opinion_id="1808316">491 So.2d 614 (Fla. 5th DCA 1986).
As argued in the husband’s brief: “An award of alimony, where substantial assets similarly situated spouses, giving them equal and complete ability to provide for their support, constitutes an abuse of discretion, and must be reversed.”
The alimony award is
REVERSED.