Young v. Young

677 So. 2d 1301, 1996 WL 416058
District Court of Appeal of Florida·Decided July 26, 1996·No. 95-1350·Published·Cited by 31 cases

Opinion

677 So.2d 1301 (1996)

Donald C. YOUNG, Appellant/Cross-Appellee,
v.
Martine Denn YOUNG, Appellee/Cross-Appellant.

No. 95-1350.

District Court of Appeal of Florida, Fifth District.

July 26, 1996.

*1303 Deborah Marks, North Miami, and Richard West, P.A., Orlando, for Appellant/Cross-Appellee.

Andrea L. Cain and John M. Cain of Cain & Ewald, P.A., Orlando, for Appellee/Cross-Appellant.

ANTOON, Judge.

In this appeal and cross-appeal from a final judgment of dissolution of marriage, we affirm the trial court's valuation of a spouse's ownership interest in a medical practice. We reverse, however, the trial court's 1) award of lump sum alimony, 2) refusal to award permanent alimony, and 3) valuation and distribution of a promissory note.

The Youngs are a professional couple—one is a medical doctor and the other an engineer. They were married in 1978 after living together for approximately two years. At the time of the marriage they lived in Texas, where the doctor was completing the requirements for a Ph.D. in physiology and the engineer was working as an unlicensed engineer. Like many professional couples, the Youngs had a plan. Theirs was a ten-year plan. According to their plan, the physiology student would pursue a medical education in order to increase the couple's future earning power, while the engineer would work to meet the couple's immediate needs. It was agreed that the engineer would work on a contract basis, foregoing job security and benefits in favor of greater cash earnings. Once the doctor received a medical degree, the couple would move to Florida. The doctor would then establish a medical practice which would provide substantial income and a high standard of living. When the medical practice generated sufficient income, the engineer would then start a private business.

The couple executed the plan well. The doctor attended medical school in Texas, while the engineer worked at various manufacturing and engineering jobs, providing most of the parties' income. After receiving a medical degree, the doctor enrolled in a residency program in anesthesiology at Shands Teaching Hospital in Gainesville, Florida. For the first two years of the doctor's training at Shands, the engineer remained in Texas to work, visiting Gainesville whenever possible. Thereafter, the engineer moved to Gainesville in an effort to obtain employment. When this proved impossible, a job was secured with an Orlando construction firm, but the engineer was required to work at a site in St. Marys, Georgia. Because housing was difficult to find in St. Marys, the engineer lived in a camping trailer. During the residency program, the engineer used earned income to pay rent for the three-bedroom house in which the doctor lived.

Upon completion of the residency program, the doctor took a position with an established anesthesiology practice in Orlando, and the engineer took a position in Brevard County. As expected, the doctor earned substantial income and the parties' attained a high standard of living. In addition to purchasing a waterfront vacation home in Merritt Island, they enjoyed traveling. Their travels included regular winter ski trips, boating vacations in Hawaii and Tahiti and shopping jaunts to New York City. The parties also indulged themselves in expensive hobbies. The wife had an extensive antique collection, and the husband *1304 engaged in an unprofitable boat business. After their plan seemingly reached fruition, the parties began to experience marital difficulties. In 1991, the couple separated. Efforts to reconcile failed, and two years later the marriage was dissolved.

After the separation, the doctor loaned a brother $50,000 without the engineer's knowledge. The loan was made using the proceeds from a bank loan which the doctor obtained without informing the engineer.

At the time of the final hearing the parties had been married for fifteen years. The doctor was 44-years old and the engineer was 48-years old; both were in good health. The doctor's annual income was $400,000-$450,000, and the engineer's annual income was $54,000. The doctor's financial affidavit showed monthly expenses of $18,309, and the engineer's showed monthly expenses of $9,376.

The trial court denied the engineer's request for permanent alimony, and instead, awarded the engineer lump sum alimony of $2,000 per month for two years, followed by $1,000 per month for an additional two years. The court valued the $50,000 promissory note from the doctor's brother at $1,000 and deemed the bank loan to the doctor a marital obligation for which the engineer shared responsibility.

On appeal, the doctor contends that the trial court erred in awarding the engineer lump sum alimony, arguing that there is no legitimate basis for the award. On the other hand, the engineer argues that the trial court erred in refusing to award permanent alimony. The engineer maintains that a fifteen-year marriage is "long term" and that an award of permanent alimony is necessary to maintain the standard of living enjoyed during the marriage. The engineer also contends that sacrifices made toward the doctor's medical career should be considered in deciding whether to award permanent alimony. The engineer further contends that the trial court's determination that the $50,000 debt is a marital obligation is unjust.

LUMP SUM ALIMONY

We first address the award of lump sum alimony. Lump sum alimony may be awarded as either support or equitable distribution. In this regard, lump sum alimony should be awarded as support only when the recipient is entitled to permanent alimony based on the receiving spouse's need for support and the paying spouse's ability to pay support. Gorman v. Gorman, 400 So.2d 75, 78 (Fla. 5th DCA 1981). Lump sum alimony is not modifiable and is not terminable upon the death or remarriage of a spouse unless expressly provided in a settlement agreement between the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980). Thus, an award of lump sum alimony for support of a spouse is to be made only when unusual circumstances exist which would require a non-modifiable award of support. Lynch v. Lynch, 437 So.2d 234 (Fla. 5th DCA 1983).

Here, the trial court ruled that the engineer was not entitled to receive permanent or rehabilitative alimony, and thus, this lump sum alimony award was clearly not intended to constitute support. This conclusion is further supported by the trial court's failure to set forth the unusual circumstances justifying an award of lump sum alimony and its decision to make the award terminable upon the engineer's death. Further, there is no reason to believe the trial court intended to use the lump sum alimony award as a means of achieving equitable distribution because a separate lump sum award of $80,000 was made specifically for that purpose. Accordingly, the award of lump sum alimony set forth in paragraph 10 of the final judgment must be reversed.

PERMANENT PERIODIC ALIMONY

We next consider the trial court's failure to award permanent periodic alimony. We conclude that the trial court utilized an improper standard in determining entitlement to permanent alimony.

Subsection 61.08(2), Florida Statutes (1995), enumerates the factors which trial courts must consider in determining whether to award permanent alimony:

61.08 Alimony.—

* * * * * *

*1305 (2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to

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Young v. Young, 677 So. 2d 1301, 1996 WL 416058 (Fla. Ct. App. 1996).

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