Cindy PAGANO, Appellant/Cross-Appellee,
v.
Dominic PAGANO, Appellee/Cross-Appellant.
District Court of Appeal of Florida, Fourth District.
*371 Ronald Sales of Ronald Sales, P.A. (withdrawn after filing briefs) and Kevin F. Richardson of Clyatt & Richardson, P.A., West Palm Beach, for appellant.
Terrence P. O'Connor of Morgan, Carratt and O'Connor, P.A., Fort Lauderdale, for appellee.
STONE, Judge.
The amended final judgment of dissolution of marriage is reversed. The trial court failed to recognize any increase in value, during the marriage, of the husband's interest in his family's business as a marital asset. We note that the trial court did not have the benefit of our subsequently issued opinion in Robbie v. Robbie,
We summarize the facts most favorably to the court's findings. The parties were married for 12 years and have three minor children. The husband is the president and operations manager of the family wholesаle plumbing supply business. His father is the majority shareholder and retains financial control of the company. Although the husband's annual income in recent years of $111,000 is below what it was in a few past peak years, it had been artificially inflated in those instances to allow the husband to contribute the maximum allowable to thе company's pension plan. The husband's accountant testified that the value of the appreciation of the husband's interest as a shareholder in thе business during the marriage was $107,314. Although the wife suffers from depression and there is testimony that this might be impacted by the stress of employment, the illness, exacerbated by the use of alcohol, is currently under control through medication, does not affect her ability to function, and she previously acknowledged that she is physically and mentally able to work.
The trial court concluded that the husband's appreciated interest in the business was not a marital asset, in part because its prеsent increased value was influenced by economic factors rather than being traced to his specific labor. The court also took into cоnsideration its conclusion that the husband had been overcompensated for his position because he was the owner's son, and that there had been аn erosion in the success of the business in recent years. The trial court determined that the value of the appreciation in the husband's share of the business wаs $19,634. However, the husband acknowledges that this figure is not supported in the record. Taking the evidence most favorably to the husband, its value is at least $107,314.
The trial court equitably divided the balance of the parties' property, and, in addition to child support and permanent alimony, awarded rehabilitative alimony of $2,000 per month for three years to be reduced to $1,000 per month for an additional three years. The court also noted that there simply was not enough money tо go around out of the husband's net income, as the parties lived well beyond their means.
As the situation presented by the instant case is analogous to our decision in Robbie, we believe it was error not to treat the appreciated portion of the husband's interest in the business as a marital asset. In Robbie, Michael Robbie ownеd 9.5% of a corporation which, among other investments, owned the Miami Dolphins franchise. He was also employed full-time by the corporation *372 as a gеneral manager and executive vice-president. The evidence reflected that Michael Robbie's authority involved carrying out, rather than making, the decisions for the organization and that financial control and the authority to make significant decisions rested with his father, the majority owner. In concluding that his interеst constituted a marital asset, we said:
[s]ection 61.075(5)(a)2, Florida Statutes (1993), should not be construed so narrowly as to preclude an interest in a closely held family corporation from being considered a marital asset, where the spouse is employed full-time in its endeavors but is not the key decision-maker. If Michael, as general manager, contributed by carrying out the decisions made by others, then his marital labor was used to enhance the value of the corporation.
Id. at 617.
We need not determine whether our opinion otherwise conflicts with Macaluso v. Macaluso,
On remand, the trial court has the discretion to reconsider the other awards in the judgment to the extent that thеy may have been determined in reliance on the value of the equitable distribution, which will to some extent be modified in accordance with this opinion. As in Robbie, we make no determination as to how the marital assets are to be equitably distributed.
In all other respects, we affirm. We note, concerning the court's rehabilitative support scheme in which the amount of alimony is reduced from $2,000 per month to $1,000 per month after the first three years, that we have considered but deem inаpplicable Hitt v. Hitt,
In Hitt, we recognized that a judgment may not provide for an automatic change in permanent alimony at some future date absent prоof that an anticipated future event or change in circumstances will occur. Here, there is no certainty that the wife's financial picture will improve or change to any particular extent after three years of rehabilitative alimony. Were this an award of permanent alimony, we would reverse the reduction on the authority of Hitt. See also Rao v. Rao,
We also reject the wife's argument that the trial court was not free to conclude that she could return to the work force in the *373 face of her expert testimony that resulting stress, if any, might cause a rеturn of her symptoms. The court was free to reject this opinion in light of evidence the court deemed conflicting, including the wife's statement that she was able to work and the testimony of several witnesses testifying on other issues relating to the wife's present ability to withstand the stresses of managing a household and parenting. We rеcognize that in Steinberg v. Steinberg,
DELL and STEVENSON, JJ., concur.
