Zinovoy v. Zinovoy

50 So. 3d 763, 2010 Fla. App. LEXIS 19823, 2010 WL 5350985
CourtDistrict Court of Appeal of Florida
DecidedDecember 29, 2010
Docket2D09-5413
StatusPublished
Cited by20 cases

This text of 50 So. 3d 763 (Zinovoy v. Zinovoy) 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
Zinovoy v. Zinovoy, 50 So. 3d 763, 2010 Fla. App. LEXIS 19823, 2010 WL 5350985 (Fla. Ct. App. 2010).

Opinion

VILLANTI, Judge.

In this dissolution of marriage action, Deborah Zinovoy challenges the adequacy of the amount of permanent alimony awarded to her and the trial court’s allocation of financial responsibility for unreim-bursed medical expenses related to the parties’ minor children. Finding merit in these arguments, we reverse and remand for reconsideration as directed below.

We first address the trial court’s allocation of financial responsibility for unreimbursed medical expenses related to the parties’ children. The final judgment, inter alia, allocated child support responsibility 23.95% to the wife and 76.05% to the husband; required the husband to maintain medical insurance for the minor children and pay 100% of the premium; and required the parties to “share equal responsibility for, and ... pay 50% of, the minor children’s ... medical, dental, prescription drug, hospitalization, optometric, and orthodontia expenses not covered by insurance, together with all insurance deductibles.” The wife contends that the trial court’s 50/50 allocation of unreimbursed medical expenses was error because it conflicted with the final judgment’s child support allocation. This contention has merit. See § 61.30(8), Fla. Stat. (2009); Wilcox v. Munoz, 35 So.3d 136, 141 (Fla. 2d DCA 2010) (“It is error for the court to equally divide the noncovered medical, dental, and prescription medication expenses when the court arrives at an unequal percentage share of child support.”). In other words, absent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same per *765 centage as the child support allocation. Because the final judgment on appeal contains no such rationale, we must reverse and remand this portion of the final judgment and direct the trial court to enter an amended final judgment consistent with controlling case law.

The wife next argues that the trial court’s $6370 monthly alimony award was inadequate given the husband’s ability to pay, her undisputed financial needs, and the standard of living established during the marriage. On the record before us, we agree that the trial court erred in determining the amount of the alimony.

At the time the dissolution petition was filed, the parties had been married sixteen years and four months. 1 Both parties were forty-eight years old. The husband earned significantly more than the wife. The trial court found that the husband’s monthly income was $38,707 and imputed monthly income to the wife of $1257. Inarguably, the evidence established that the parties enjoyed an affluent standard of living during the marriage. Without going into unnecessary detail, we note that their assets were valued at over $1 million, including the marital residence valued at over $500,000 and real property in Costa Rica. Their children attended private school, and the family took frequent expensive vacations.

The wife’s amended financial affidavit showed monthly expenses of $17,715. After deducting $4445 in expenses related to the children, the wife claimed a monthly need of $13,270. The wife’s expert, a forensic accountant, reviewed the parties’ credit card statements and bank account transactions for the twelve months preceding the filing of the dissolution petition and prepared a “lifestyle analysis,” to which she testified at the final hearing. After taking into consideration the tax consequences of an alimony award, the wife’s expert testified that the wife’s monthly alimony should be $16,368. The great bulk of this testimony was unrefuted.

On the other hand, the husband’s expert did not independently examine the parties’ books to determine their standard of living expenses, nor did he look at the wife’s final adjusted lifestyle analysis. 2 Rather, he and the husband simply sat down to review the wife’s preliminary lifestyle analysis calculation, the husband pointed to only ten items in the wife’s lifestyle calculation to which he felt an adjustment should be made, and his expert adopted those adjustments. 3 The expert then mathematically *766 reduced the wife’s monthly need to $8370. However, on cross-examination the husband’s expert acknowledged errors in his analysis which resulted in incorrect deductions in some of the ten items that he had identified. 4

After hearing all of the evidence, the trial court found that the wife’s claimed needs were “vastly overstated” and awarded the wife $6370 in monthly pretax alimony. Based on the facts of this case, we conclude that the trial court abused its discretion in calculating the alimony award because it is inconsistent with, and significantly lower than, any of the trial testimony addressing the wife’s alimony need.

First, we must recognize that a trial court has broad discretion in determining the amount of permanent alimony. “If a reviewing court finds that there is competent substantial evidence in the record to support a particular award,” the award will be affirmed. Marcoux v. Marcoux, 464 So.2d 542, 544 (Fla.1985). Nevertheless, permanent periodic alimony is intended to allow the requesting spouse “to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spouse is not ‘shortchanged.’ ” Griffin v. Griffin, 906 So.2d 386, 388 (Fla. 2d DCA 2005). In deciding the amount of alimony “the trial court should ensure that each party’s standard of living comes as close as possible to the prior lifestyle, given the available financial resources.” Id. at 389; Laz v. Laz, 727 So.2d 966, 967 (Fla. 2d DCA 1998) (same).

In Griffin, for example, the parties’ standard of living in a fourteen-year marriage included a $200,000 home, a $900,000 beach condo, luxury cars, luxurious vacations, a part-time housekeeper, thousands of dollars in jewelry, and private schooling for them son. 906 So.2d at 389. This court held that a $3000 monthly alimony award to the husband was insufficient, noting that the award brought the husband’s annual income to only $76,000, when the wife’s income was over $400,000. Id. “Considering all of the relevant factors, this level of disparity ‘[was] too great to be ignored’ and constituted error.” Id.

Similarly, in Wright v. Wright, 577 So.2d 1355, 1358 (Fla. 1st DCA 1991), the district court reversed a $2000 monthly permanent periodic alimony award where the husband’s annual income was more than $100,000 and the wife’s income was no more than $36,000. The court concluded that the amount of alimony was not commensurate with the husband’s ability to pay or with the standard of living established during the marriage and was insufficient to provide for the wife’s needs as established during the marriage. Id. The alimony amount left the wife “able to meet approximately half the expenses listed in her postseparation financial affidavit,” while the husband would “continue to enjoy a level of affluence which far exceeded] that enjoyed by his former spouse.” Id.

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Bluebook (online)
50 So. 3d 763, 2010 Fla. App. LEXIS 19823, 2010 WL 5350985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zinovoy-v-zinovoy-fladistctapp-2010.