Littleton v. Littleton

555 So. 2d 924, 1990 WL 2061
CourtDistrict Court of Appeal of Florida
DecidedJanuary 16, 1990
Docket88-2688
StatusPublished
Cited by3 cases

This text of 555 So. 2d 924 (Littleton v. Littleton) 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
Littleton v. Littleton, 555 So. 2d 924, 1990 WL 2061 (Fla. Ct. App. 1990).

Opinion

555 So.2d 924 (1990)

Robert E. LITTLETON, Appellant,
v.
Bobbie J. LITTLETON, Appellee.

No. 88-2688.

District Court of Appeal of Florida, First District.

January 16, 1990.

Sherry F. Chancellor, Pensacola, for appellant.

R. Larry Morris, of Levine, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, Pensacola, for appellee.

ERVIN, Judge.

Robert E. Littleton, the former husband and appellant herein, seeks review of the final judgment dissolving his marriage to the appellee herein, Bobbie J. Littleton. He contends that the court did not equitably distribute the marital assets, that the alimony and insurance awards were excessive and/or unfair, and that the court erred in awarding attorney's fees to the wife. We affirm the judgment on all points, with *925 the exception of the health insurance provision, which is reversed and remanded.

The parties hereto were both 59 years of age at the time the divorce was granted. They were married in February 1951 and four children, all of whom have attained their majority, were born of the marriage. At the time of the divorce, Mr. Littleton was a full-time professor at the University of West Florida, with a base income of $36,997 for a nine-month period. In addition, he had also taught in the summer, increasing his income by $12,300, and he taught an extra course each semester, thereby increasing his income by another $9,000. As a result, he has earned between $50,000 and $60,000 every year since 1982. During the marriage Mrs. Littleton acted primarily as a homemaker, caring for the parties' minor children. Since 1970 she has worked as a substitute teacher, most recently earning $4,800 per year. Both parties have deteriorating health. The husband claims his health requires him to work less; consequently, he plans to work a regular course load for nine months, with no extra course or summer work in the future.

The trial court found that the marriage was irretrievably broken and granted the divorce. In dividing the parties' assets, it awarded the wife title and exclusive possession of the marital home, for which she was to be responsible for the mortgage, taxes and maintenance,[1] most of the household furnishings, the boat, motor and trailer, the 1980 Toyota, and her own IRA account. Mr. Littleton was awarded exclusive title and possession to his retirement account, which has a present value of $145,888 if he were to retire at age 62,[2] the airplane, computer, camera, camping equipment, antique furnishings, the 1987 Oldsmobile, and the 1982 Datsun.

The trial court also awarded Mrs. Littleton permanent alimony in the sum of $1,050 per month, and, in the event that the husband should work more than nine months per year, the wife would receive one-third of the net sum of money earned over and above his base income. The husband was directed to provide health insurance through his employer for the wife or to pay her $100 per month for the cost of same; to maintain a $50,000 life insurance policy on his own life, payable to the wife as beneficiary; and finally, to pay the wife's attorney's fees.

In reviewing marital dissolution proceedings, we are mindful of the warning given in Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla. 1980):

Dissolution proceedings present a trial judge with the difficult problem of apportioning assets acquired by the parties and providing necessary support. The judge possesses broad discretionary authority to do equity between the parties and has available various remedies to accomplish this purpose, including lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, a vested special equity in property, and an award of exclusive possession of property. As considered by the trial court, these remedies are interrelated; to the extent of their eventual use, the remedies are part of one overall scheme. It is extremely important that they also be reviewed by appellate courts as a whole, rather than independently.

Accord Diffenderfer v. Diffenderfer, 491 So.2d 265, 267-68 (Fla. 1986). Because the appropriate standard of review is abuse of discretion, this court should only disturb the lower court's ruling when no reasonable man would take the same view adopted by the trial court. Canakaris, 382 So.2d at 1203.

Initially, we find no abuse of discretion in the lower court's division of the marital assets. Neither do we find error in either the form (permanent rather than rehabilitative) or the amount of the alimony award.[3]*926 We likewise find no merit in appellant's challenges to the life insurance award[4] or the attorney's fee award.[5]

As for the husband's contention that the trial court erroneously considered his retirement plan as both a marital asset and as a source of income, we conclude that no such error occurred. In Diffenderfer, our supreme court concluded that a pension plan may properly be considered as either a marital asset for equitable distribution purposes or as a source of income for payment of alimony. The court, however, cautioned:

[I]njustice would result if the trial court were to consider the same asset in calculating both property distribution and support obligations. If the wife, for example, has received through equitable distribution or lump sum alimony one-half of the husband's retirement pension, her interest in his pension should not be considered as an asset reflecting his ability to pay.

Diffenderfer, 491 So.2d at 267. For proper application of the above language, it is essential for one to realize that the Diffenderfer decision was based upon the assumption that the husband would be retiring and that his pension would be his major source of income. See Diffenderfer v. Diffenderfer, 456 So.2d 1214 (Fla. 1st DCA 1984).

Unlike the husband in Diffenderfer, appellant's retirement is not an established fact.[6] As stated in Carroll v. Carroll, 528 So.2d 931, 932-33 (Fla. 3d DCA), review denied, 538 So.2d 1255 (Fla. 1988),

Diffenderfer approved the consideration of pension benefits `as a source of payment of permanent periodic alimony,' ... in the context in which pension benefits are the present source of income for the party who is compelled to pay the alimony award. Indeed, it is only in this context that it can be said that the same asset is considered as both a marital asset subject to distribution and a factor in calculating a spouse's ability to pay support. But where, as here, the retirement benefits are not being used to pay alimony, there is no justification for excluding the benefits from the assets subject to distribution, since it cannot be said the same asset is being counted twice.

(Citation and footnote omitted.) See also Carr v. Carr, 522 So.2d 880 (Fla. 1st DCA 1988) (reversing trial court's order that treated husband's pension plan as source of payment for alimony rather than marital asset, because the husband had no present need for the benefits to fulfill his alimony obligations — he was currently employed). In that Mr. Littleton had not retired at the time the divorce was entered and therefore was not using or in need of his retirement plan as a source for paying the alimony award, the trial court properly considered the retirement plan as a marital asset for the purpose of equitable distribution. See McReynolds v. McReynolds, 546 So.2d 1153 (Fla. 2d DCA 1989).

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555 So. 2d 924, 1990 WL 2061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/littleton-v-littleton-fladistctapp-1990.