03-0464 CAROLLO V. CAROLLO

SUPREME COURT CASES

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State: Florida

Court: Florida Third District Court

Docket No: 03-0464 CAROLLO V. CAROLLO

Case Date: 12/29/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004

JOSEPH CAROLLO, Appellant, vs. MARIA LEDON CAROLLO, Appellee.

** ** ** ** ** CASE NO. 3D03-464 LOWER TRIBUNAL NO. 00-27860 FC 38

Opinion filed December 29, 2004. An Appeal from the Circuit Court for Miami-Dade County, Henry H. Harnage, Judge. Marks & West; Cynthia L. Greene, for appellant. Ira L. Dubitsky; Lauri Waldman Ross, for appellee.

Before SCHWARTZ, C.J., and LEVY and SHEPHERD, JJ. PER CURIAM. Joseph Carollo ("Husband") appeals from a Final Judgment and

Dissolution of Marriage. appeals.

Maria Ledon Carollo ("Wife") cross-

Husband and Wife were married in November 1985, and Wife petitioned for dissolution of the marriage in November of 2000. The parties have two minor children from the marriage. At issue on appeal are several rulings made by the trial court. Specifically, the court's finding that Husband's City of Miami "Elected Officers Retirement Trust" and (EORT) the was an asset subject and to equitable of

distribution,

court's

valuation

distribution

Husband's EORT; the imputation of income against Husband for purposes of alimony and child support; the award of rehabilitative alimony to Wife to allow her to attend law school; and the attorney's fee award to Wife. The issues raised on cross-appeal concern the trial court's denial of Wife's request to order that Husband obtain life insurance to secure Wife's alimony award, and the court's denial of Wife's request for a QDRO (Qualified Domestic Relations Order) to secure the equitable distribution of Husband's EORT. The court was faced with several issues regarding Husband's EORT; (1) whether the EORT was an asset or income, (2) how to value the EORT and compute the marital portion, and (3) whether the City of Miami's reduction of Husband's EORT after the court's ruling but before the entry of Final Judgment, should have been considered on rehearing, thereby allowing the court to recalculate the equitable distribution. The trial court found that Husband's EORT was a marital asset 2

subject to equitable distribution, placed a present value upon Husband's EORT, accepted Wife's expert's computation, and

determined that Husband's interest in the EORT was $1,483,688.00, with the marital portion being $741,834.00. Consequently, the court found that from Husband's monthly payment of $9,404.63, the monthly marital portion was $8,180.80, and ordered Husband to pay Wife her share of the total value in sums of $4,090.40 per month. The trial court announced its ruling regarding the EORT on June 7, 2002, and on June 10, 2002, supplemented its oral ruling with a letter to the parties' counsel. On July 25, 2002, before

the court entered its written Final Judgment, the City Commission reduced the amount of Husband's monthly pension payments. In light

of the reduction, Husband filed a Motion for Rehearing and New Trial. The trial court denied Husband's Motion for Rehearing on

the ground that the court's "ruling" was non-modifiable because it was a "property provision." Additionally, the trial court denied

argument that the issue was newly discovered evidence because it was not in existence at the time of trial. With respect to the rehabilitative alimony, the Record

reflects that Husband was the primary income source for the family during the marriage and that Wife held the family together and supported Husband's political career. Additionally, the court

considered the fact that Husband owned and worked several companies and business ventures during the late 80s and early 90s; that Wife received her college degree in psychology in 1981 but worked primarily for Husband's business ventures; that in 1994, Wife was 3

admitted to law school but did not pursue the education; and that Wife ultimately stopped working in 1995 to remain with the

children. Thus, the trial court awarded rehabilitative alimony for a period of five years to Wife so that she may attend law school. The trial court imputed income against both parties, finding that they were both underemployed. The court found that Husband's

monthly income was $5,314.23 ($4,090.40--Husband's half of the marital portion of his EORT + $1,223.83--Husband's non-marital interest in his EORT). The court found that credible evidence supported a finding that Husband could earn at least $95,000.00 per year working. Accordingly, the court imputed an annual income of

$65,000.00 against Husband. With respect to Wife, the court found that Wife's monthly income is $4,090.40 (from the marital interest in Husband's EORT). The court found that Wife had the potential

and history to earn approximately $25,000.00 and thus, imputed an annual income of $25,000.00 against Wife. The court awarded attorney's fees to Wife, finding that Husband had the ability to pay her fees. The trial court also ordered Husband to maintain a $150,000.00 life insurance policy to secure child support, but did not require life insurance to secure Wife's rehabilitative alimony. denied Wife's request for a Additionally, the trial court QDRO to secure her equitable

distribution of Husband's EORT. Husband appeals, and Wife crossappeals. We find that only Husband's claims regarding the EORT and rehearing, and Wife's claims regarding the QDRO merit discussion. EORT 4

Section 61.075(5), Florida Statutes, includes "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs" as a marital asset for purposes of equitable distribution.

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