5D02-1997 Elliott v. Elliott

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D02-1997

Case Date: 03/01/2004

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2004

CHRIS CARLETON ELLIOTT, Appellant, v. Case No. 5D02-1997

SUE DAY ELLIOTT, Appellee. / Opinion Filed March 5, 2004 Appeal from the Circuit Court for Volusia County, Patrick G. Kennedy, Judge. Jamie Billotte Moses of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant. Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellee. PLEUS, J. The husband challenges numerous aspects of the final judgment of dissolution. We conclude that the trial court's imputation of bonus income to the husband and its determination of enhancement value of the husband's stock ownership during the marriage are supported by substantial competent evidence and were within its broad discretionary authority. See Jones v. Jones, 633 So. 2d 1096 (Fla. 5th DCA 1994); Doyle v. Doyle, 789 So. 2d 499 (Fla. 5th DCA 2001); Gerthe v. Gerthe, 857 So. 2d 306 (Fla. 2d DCA 2003). There are, however,

two aspects of the final judgment which require reconsideration. First, in determining alimony and child support, the trial court erred in failing to attribute interest income to the wife. The final judgment of dissolution awards the wife $444,460.14 in marital assets. This amount includes the $336,950.28 proceeds from the sale of the marital home, two stock accounts ($24,855.42 and $32,175.15) and a tax refund of $11,879.00. The husband points out that he adduced evidence from an investment broker of potential rates of return on such monies of somewhere between 1.85% and 5%. The wife concedes that testimony regarding potential rates of return was adduced but she asserts that: (1) she anticipated a portion of these liquid assets would be used to pay her attorney's fees and costs and for a down payment on a home and (2) investment income was not imputed to the husband even though he received proceeds from the sale of the marital home totaling $64,555.77 as well as a commercial lot valued at $165,000 which he could either sell or lease. The wife, however, adduced no evidence of investment income available to the husband. Pursuant to section 61.08(2)(g), Florida Statutes1, investment income should be considered in determining support issues. McLean v. McLean, 652 So. 2d 1178 (Fla. 2d DCA 1995) ("When a party receives an asset in equitable distribution that will result in immediate investment income, we see no reason for that income to be excluded from consideration under section 61.08(2)(g)"). See also Rosecan v. Springer, 845 So. 2d 927

Section 61.08(2)(g), Florida Statutes, provides that in determining alimony, "the court shall consider all relevant economic factors," including "all sources of income available to either party." 2

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(Fla. 4th DCA 2003), rev. denied, 858 So. 2d 332 (Fla. 2003). The husband presented evidence of potential rates of return and the court should have considered possible interest income available to the wife on the substantial liquid assets awarded to her. In so doing, the trial court can take into account the portion needed for her attorney's fees and house down payment. Second, the trial court failed to make adequate findings in support of its decision to assess one-half of the wife's attorney's fees against the husband. While the amount of the wife's fees was not determined, the wife asserts the husband will be liable for approximately $25,473.66 plus one-half of the attorney's fees and costs incurred from March 20, 2002 to April 15, 2002. The court explained in the final judgment: 14. Attorney's Fees. Ordinarily, where there has been a substantial and equal division of marital assets as here, each party will be required to pay his or her own attorney's fees. Wilkerson v. Wilkerson, 623 So.2d 1192 (Fla. 5th DCA 1993). However, this case has been excessively and unnecessarily litigated by the Husband. Discovery costs have been substantially increased by his lack of cooperation with discovery requests that are clearly proper under the rules. He has failed to comply with orders compelling disclosure. "Under this scheme (

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