Hornyak v. Hornyak

48 So. 3d 858, 2010 WL 4962711, 2010 Fla. App. LEXIS 18627
CourtDistrict Court of Appeal of Florida
DecidedDecember 8, 2010
Docket4D08-4375
StatusPublished
Cited by8 cases

This text of 48 So. 3d 858 (Hornyak v. Hornyak) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hornyak v. Hornyak, 48 So. 3d 858, 2010 WL 4962711, 2010 Fla. App. LEXIS 18627 (Fla. Ct. App. 2010).

Opinions

WARNER, J.

The husband appeals a final judgment of dissolution, claiming the trial court made eight errors in connection with awards of permanent alimony, bridge-the-gap alimony, equitable distribution of the marital home to the wife without considering the tax ramifications, and other awards. We conclude that the trial court abused its discretion in awarding three years of bridge-the-gap alimony and in awarding a $500 equalizing payment to the wife. We also conclude that the trial court abused its discretion in imputing only $25,000 in annual income to the wife, as that amount was inconsistent with the court’s other [860]*860findings. The trial court did not abuse its discretion in any of the remaining awards.

The parties were married for 14 years at the institution of the dissolution proceedings. They have two children. The husband works for Volvo Finance and makes a considerable salary plus bonuses. The wife was a legal secretary but did not work for most of the marriage. However, as the marriage was failing, the wife obtained training to be a massage therapist. She worked sporadically as a massage therapist but testimony at trial showed that she could make $25,000 per year within six months. Other testimony showed that she could eventually make $40,000 per year.

In its final judgment, the trial court found that the marriage is a “gray area marriage of over 15 years and does not carry a presumption of permanent periodic alimony.” The trial court considered that “the parties have enjoyed a comfortable lifestyle ... a fine home, meals outside of the home and other luxuries.” The court found that the wife was underemployed and thus imputed $25,000 in income to the wife based upon what she could presently earn as a massage therapist but concluded from other testimony that the wife had a need of $6,100 per month in alimony which would decrease as she transitioned to full-time employment.

The court found that the husband “has a gross monthly income of $22,410 per month without receipt of any bonuses ...,” a point of contention in this appeal. The trial court found that the husband’s testimony that his income may decrease because his employer was doing poorly “was not supported by credible evidence.” The court, considering each of the factors set forth under section 61.08, Florida Statutes, awarded the .wife $3,100 per month in permanent alimony and $3,000 per month in bridge-the-gap alimony for three years while she transitions to full-time employment for which the court found her to be capable of earning $40,000 per year.

In the final judgment, the husband was ordered to pay the wife, who was determined to be the residential parent, child support in the amount of $1,740 per month, which would be recalculated upon the exhaustion of the wife’s bridge-the-gap alimony.

With respect to equitable distribution, the trial court found that it was in the best interest of the parties for the wife and minor children to remain in the marital home, rejecting the husband’s request that the marital home be sold. The trial court awarded the marital home to the wife, requiring her to pay the outstanding mortgage. The court awarded the majority of the retirement funds to the husband. The court also required that the husband pay off the property taxes due on the house, a debt listed as $4,096 in the final judgment. Further, the court required in the final judgment that the husband pay off the home equity line of credit on the home. By the court’s calculation, the husband was receiving a total of $410,130 of the marital estate, while the wife was receiving $409,630.1 Accordingly, the trial court ordered that the husband make an equalization payment of $500 to the wife. The trial court denied each party’s claim for attorney’s fees, finding that the parties had the ability to satisfy their own fees and costs where the final judgment left the parties with equal assets and debts. The husband filed a motion for rehearing, which was denied, and he now appeals.

The husband first challenges the trial court’s statement in its final judgment that his income was $22,410 per month without bonuses and that the receipt of [861]*861bonuses in the future was speculative at best. The wife agrees that the evidence showed that the figure of $22,410 amounted to the husband’s monthly income including regular bonuses that he received. The wife argues that the trial court’s misstatement in the final judgment that the monthly income was “without receipt of any bonuses” was at most harmless error and most likely the court was referring to the amount from his employment without additional consulting income which the husband received on the side.

We agree with the wife that the court appears to have made a misstatement, but it amounts to harmless error. The court disbelieved the husband’s claim that his income would go down. Instead, it found that the husband received regular bonus income from his employment. A spouse’s “regular and continuous” bonuses should be included in calculating income. See Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999); see also § 61.08(2)(g), Fla. Stat. (instructing that in determining alimony, the court should consider “[a]ll sources of income available to either party”); cf. Hollister v. Hollister, 965 So.2d 341, 346 (Fla. 2d DCA 2007) (holding that the trial court did not abuse its discretion in not including the husband’s bonus in determining his income because the husband’s testimony supported the conclusion that the bonus was not regular and continuing). The amount of bonus income that the wife’s accountant attributed to the husband, which made up part of the $22,410 monthly income, was consistent with the amount actually received by the husband for the past several years. Because the amount found by the trial court was the exact amount that the wife’s accountant testified was his income including bonuses, we conclude that the court simply made a misstatement that the amount did not include bonuses, when in fact it did.

The husband also challenges the award of permanent alimony and bridge-the-gap alimony to the wife. We affirm the permanent alimony award, but reverse the award of bridge-the-gap alimony. A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review. Leonardis v. Leonardis, 30 So.3d 568, 569 (Fla. 4th DCA 2010). At nearly 15 years of marriage at the time of the filing of the petition for dissolution, this was a “gray area” marriage, where there is no presumption for or against permanent alimony. See, e.g., Wofford v. Wofford, 20 So.3d 470, 474 (Fla. 4th DCA 2009); see also Young v. Young, 677 So.2d 1301, 1305 (Fla. 5th DCA 1996) (holding that a 15-year marriage fell within the gray area of marriages).

The purpose of permanent alimony “is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties.” Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). “The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Canakaris v. Canakaris, 382 So.2d 1197, 1201-02 (Fla.1980). In making an alimony determination, the trial court is required to consider the statutory factors set forth in section 61.08(2), Florida Statutes. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005).

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Hornyak v. Hornyak
48 So. 3d 858 (District Court of Appeal of Florida, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
48 So. 3d 858, 2010 WL 4962711, 2010 Fla. App. LEXIS 18627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hornyak-v-hornyak-fladistctapp-2010.