Sherlock v. Sherlock

199 So. 3d 1039, 2016 Fla. App. LEXIS 10783, 2016 WL 3745486
CourtDistrict Court of Appeal of Florida
DecidedJuly 13, 2016
DocketNo. 4D15-365
StatusPublished
Cited by9 cases

This text of 199 So. 3d 1039 (Sherlock v. Sherlock) 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
Sherlock v. Sherlock, 199 So. 3d 1039, 2016 Fla. App. LEXIS 10783, 2016 WL 3745486 (Fla. Ct. App. 2016).

Opinion

TAYLOR, J.

The husband appeals a final judgment of dissolution of marriage, arguing that the trial court erred in denying his request for permanent, periodic alimony. We affirm.

The wife petitioned for dissolution after 17 years of marriage. The husband requested permanent periodic alimony, citing the length of the marriage, the disparity in the parties’ incomes, his need, and the wife’s ability to pay. By statute, the marriage was presumptively a long-term marriage. § 61.08(4), Fla. Stat. (2013) (“For purposes of determining alimony, there is a rebuttable presumption that a ... long-term marriage is a marriage having a duration of 17 years or greater.”).

At the time of trial, the husband was 63 years old and the wife was 55. Throughout most of his adult life, the husband worked in his own landscaping business. However, after suffering multiple work-related injuries and fracturing his back, he stopped working and began receiving Social Security Disability benefits in the amount of $1,535 per month for himself and $750.00 for the minor daughter.

The husband’s total net worth, including the marital assets and liabilities distributed to him, is over $1.3 million. His net worth includes significant non-marital assets worth about $980,000. The husband’s net worth from real estate and financial holdings is over $1.2 million, and includes the following significant assets and liabilities:

Assets
Husband’s IRA — $190,827
Husband’s Deerfield Beach house— $195,000
North Carolina Cabin — $175,000
Four North Carolina lots — $300,000
Proceeds from Sale of Husband’s Business — $115,000
Annuity — $101,000
US-1 Lot — $100,740
Legacy Stock — $11,500
Proceeds, from Sale of Jacksonville Home — $25,000
Husband’s Current Residence — $273,000
Liabilities and Contingent Liabilities
'Mortgage on Husband’s Current Residence — $240,000
Loans on US-1 Lot (Contingent)— $40,000

Additionally, the equitable distribution scheme required the wife to make an equalizing payment to the husband in the amount of $68,762,

The wife has an MBA, is employed by a bank, and earns an average gross income of $10,042 per month. The wife’s net worth is over $600,000 and consists largely of the equity in the marital home, which was distributed to her. The wife’s significant assets and, liabilities are as follows:

Assets
Marital Home — $935,000
Wife’s IRA — $88,000
Legacy Stock — $11,500
Proceeds from Sale of Husband’s Business — $115,000
Liabilities
Mortgage on Marital Home — $511,200
Credit Card Debt — $38,000

At the final hearing, the husband requested permanent periodic alimony in the amount of $2,500 per month. He argued that he had the need and the wife had the ability to pay. In opening statements, the husband’s counsel suggested that the court could impute a 3% rate of return to the [1042]*1042husband’s IRA, which would result in $500 per month in income to the husband.

In the husband’s financial affidavit, he claimed monthly expenses of $2,790. At the time he filed his financial affidavit, however, he was living in the guest house connected to the marital home and was not paying any of the expenses for his current residence, which was an additional home the parties owned during the marriage. The husband testified that the expenses associated with his current residence were over $1,200 per month, including $900 for the mortgage, $175-$185 for electricity, $60 for water, and about $110 for the phone. The husband further testified that he previously had health insurance through his wife, but must now pay his own health insurance in the amount of $470 per month. The husband’s expenses for his current home and for his health insurance are over and above the expenses listed on his financial affidavit.

The husband testified that his North Carolina cabin is a seasonal rental that he often allowed friends and family to use in exchange for helping with the house. He explained that he has not earned any income on the cabin over and above the expenses on the property.

The husband testified that he rented out his Deerfield Beach property for $1,000 a month. He began renting the property after the temporary relief hearing in March 2014, and continued to rent it until the month before trial, when the tenant moved out. The husband asserted that he made only $285 in net rental income after the expenses on the property, which include taxes, insurance, water, and lawn service.

The husband has not made any attempt to sell his four vacant lots in North Carolina, which are worth a total of $300,000. He testified that he had no plans to build homes on the lots and that he purchased them for tax reasons.

In the wife’s financial affidavit, she claimed monthly expenses of $6,859, including a $2,900 mortgage payment on the marital home. However, the wife acknowledged that her financial affidavit included expenses that no longer exist, including expenses related to the husband’s current residence and other expenses the husband was currently paying.

In the final judgment, the court denied the husband’s request for alimony. The court found that the husband had the ability to earn rental income from the Deer-field Beach property and the North Carolina cabin. The court also found that the husband had “investment income from his annuity, an IRA account, bank stock, and proceeds from the sale of his [business].” The court imputed income to the husband based on his real estate and financial assets, stating:

No evidence was presented as to the likely income to be earned from his real estate and financial assets which have a present value of $1,214,067. A conservative investment return of 3% per annum would produce income of $36,422 annually without invading the principal. Together with his SSDIB his gross monthly income is imputed to be $4,570. His only proven debt is the mortgage on his [current] home of $240,000. The Husband chooses not to seek income from many of his assets.

The court also found: “The evidence of the Husband’s expenses is insufficient to show a need in excess of his imputed income. He testified to a few expenses which are less than his income.” The court did not make any specific findings regarding the wife’s ability to pay.

The husband moved for rehearing on the alimony issue, arguing that he proved his need and that the trial court’s imputation [1043]*1043of income to him was error. The court denied the motion for rehearing, and the husband appealed.

On appeal, the husband argues that the trial court erred in denying his request for permanent alimony where he demonstrated his need and the wife’s ability to pay.

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Cite This Page — Counsel Stack

Bluebook (online)
199 So. 3d 1039, 2016 Fla. App. LEXIS 10783, 2016 WL 3745486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherlock-v-sherlock-fladistctapp-2016.