5D01-339 Vitalis v. Vitalis

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State: Florida

Court: Florida Southern District Court

Docket No: 5D01-339.op

Case Date: 11/12/2001

Plaintiff: 5D01-339 Vitalis

Defendant: Vitalis

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2001

FRANK VITALIS, Appellant, v. Case No. 5D01-339 LESLI VITALIS, Appellee. / Opinion filed November 16, 2001 Appeal from the Circuit Court for Seminole County, Debra S. Nelson, Judge. C. Michael Duncan of the Law Offices of Stephen R. Caplan, Orlando, for Appellant. Timothy R. Askew, Jr. of Hutchison, Mamele & Coover, P.A., Sanford, for Appellee.

ORFINGER, R. B., J. Frank Vitalis, the husband, appeals the final judgment dissolving the parties' marriage. Specifically, he contests the award of permanent and rehabilitative alimony to Lesli Vitalis, the wife. He also contests the award of attorney's fees and costs to the wife. The parties were married in 1980 and separated in 1999. They had two children, a daughter, age 16, and a son, age 10. The parties amicably resolved all issues concerning custody, visitation, child support and division of the marital property. The issues presented to the trial court concerned the wife's request for rehabilitative and permanent alimony and the

payment of attorney's fees and costs. Both the husband and the wife were approximately 40 years old at the time of the divorce. During the marriage they enjoyed a comfortable life. They owned two residences, took vacations, and drove newer vehicles. Their children attended private schools. Throughout the marriage, the wife worked part-time outside the home while acting as a homemaker and primary caregiver to their two children. The wife earned a high school diploma and had completed a few courses at trade schools and community colleges. Shortly after their marriage, they moved to Texas where she worked part-time, often earning only minimum wage, as a waitress, medical assistant, and receptionist. Upon their return to Florida in 1990, their son was born and the wife stayed home to care of him. She later returned to work full-time as a medical assistant; however, the demands of that job proved too great along with the responsibility of caring for two young children. Thereafter, she worked part-time as a waitress until 1996 when she took a part-time position with the Wekiva Christian School, as a teacher's assistant. Subsequent to filing for dissolution in August 2000, she began working full-time at the school earning $7.50 an hour. The wife's net monthly salary was about $1,083 at the time of trial. The wife had a rehabilitation plan. She testified that she planned to return to college part-time to pursue a college degree in education while working part-time and caring for her son. She estimated that the total cost of her education would be approximately $13,000 and that it would take about seven years to earn her degree. She requested rehabilitative alimony of $300 per month for seven years. During much of the parties' marriage, the husband was employed by Southland Corporation. Southland Corporation owns and operates 7-Eleven stores. While employed 2

by Southland, the husband worked as a refrigeration mechanic, a group salesman, a dispatcher, a field service technician, and as a service supervisor. In April 1993, the husband resigned from Southland and started All-Rite Services. All-Rite Services provides

maintenance for gas pumps at 7-Eleven stores. The husband's company also provides maintenance for Southland's office buildings. During the course of the litigation, the husband filed three financial affidavits with the trial court. In the November 3, 1999 affidavit, the husband indicated that his gross monthly income was $1,230.54. In his November 9, 1999 affidavit, he showed gross monthly income of $3,107. Finally, his March 27, 2000 affidavit showed gross monthly income of $3,841.12. The husband testified that his income ranged from $3,200 to $3,800 per month. The parties' 1998 and 1999 tax returns were received into evidence. The tax returns revealed annual adjusted income of $49,319 in 1998 and $69,296 in 1999. The trial court found that the husband's adjusted gross monthly income was $6,846. Apparently the court concluded that the husband improperly deducted certain personal expenses as business expenses, thereby reducing the adjusted gross income reflected on the tax returns.1 On November 7, 2000, the trial court dissolved the parties' marriage. The trial court awarded the wife permanent alimony of $1,200 per month, rehabilitative alimony of $300 per month for seven years, attorney's fees of $20,000, and costs of $2,028.58. In a dissolution proceeding, the trial court possess broad discretion to do equity between the parties. Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980); Doyle v.

Because the judgment lacks findings, we cannot determine what adjustments the trial court made to determine the husband's monthly income. 3

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Doyle, 789 So. 2d 499, 501 (Fla. 5th DCA 2001). The standard of review is whether the trial court abused its discretion. Canakaris, 382 So. 2d at 1202-03. In reviewing a dissolution judgment, this court looks at the judgment as a whole in determining whether the trial court abused its discretion. Hamlet v. Hamlet, 583 So. 2d 654, 657 (Fla. 1991). "It is not the function of the appellate court to substitute its judgment for that of the trial court through reevaluation of the evidence. Rather, the test is whether the judgment of the trial court is supported by competent evidence." Deakyne v. Deakyne, 460 So. 2d 582, 583 (Fla. 5th DCA 1984) (citing Kuvin v. Kuvin, 442 So. 2d 203 (Fla. 1983)). The husband argues that the wife is not entitled to an award of rehabilitative and/or permanent alimony because the final judgment failed to contain the express findings of fact required by section 61.08, Florida Statutes (2000). Section 61.08(1) requires the trial court to make findings of fact regarding the factors enumerated in subsection (2) supporting the award or denial of alimony. These factors include: (a) The standard of living established during the marriage. (b) The duration of the marriage. (c) The age and the physical and emotional condition of each party. (d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each. (e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. (f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party. (g) All sources of income available to either party. The court may consider any other factor necessary to do equity and justice between the parties.

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