5D07-1014 Kay v. Kay

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D07-1014

Case Date: 08/25/2008

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JULY TERM 2008

THOMAS N. KAY, Appellant/Cross Appellee, v. CYNTHIA ANN KAY, Appellee/Cross Appellant. ________________________________/ Opinion filed August 29, 2008 Appeal from the Circuit Court for St. Johns County, Robert K. Mathis, Judge. William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant/Cross Appellee. James G. Roberts and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross Appellant. Case No. 5D07-1014

Earp, J., Associate Judge. In this appeal from a dissolution of marriage judgment, Thomas Kay ("the husband") challenges the trial court's equitable distribution of marital assets and award of attorney's fees to Cynthia Kay ("the wife"). The wife cross-appeals the trial court's equitable distribution of marital assets. Only two issues raised by the parties merit discussion -- the court's distribution of the husband's disability insurance benefits and an award of attorney's fees to the wife. We conclude that the trial court's disposition of

the disability insurance benefits is contrary to established law and that the award of attorney's fees is without evidentiary foundation, and therefore, reverse on those issues. In all other respects, the final judgment is affirmed. One day prior to the scheduled trial of this matter, the husband was hospitalized for depression. Because the husband was unavailable for trial, his attorney filed an emergency motion for a continuance. The hearing on that motion was held the same day. At the hearing, the husband's attorney explained that the husband had been

admitted to the hospital and was too ill to appear in court. The wife objected to a continuance, arguing that the husband was merely attempting to delay the trial, as he had done on previous occasions. The wife's attorney advised the court that the wife was prepared for trial, had four witnesses under subpoena, and that he had expended approximately 50 hours preparing the case and spent more than $15,000 in trial preparation. Although the attorneys argued the merits of their positions, there was no evidence taken at the hearing on the motion for continuance. The wife's attorney

requested that the trial court deny the motion, or alternatively, order the husband to pay all of her trial preparation expenses. The trial court granted the emergency motion for continuance, but stated that it believed the husband's condition was contrived and that he admitted himself into the hospital to avoid going to trial. The trial court found that the husband's conduct caused the wife to suffer damages. Among other things, the trial court awarded the wife the sum of $15,000 in attorney's fees and $481 in costs attributable to the continuance. The case went to trial several months later. At trial, the issue of whether the husband's disability insurance proceeds were a marital asset subject to division was

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hotly contested.

The wife testified that, during the marriage, she and the husband

maintained the disability insurance policy with marital funds. After they separated, the husband allowed the policy to lapse by failing to make timely payments. When the wife discovered this information, she contacted her attorney and arranged to have the policy reinstated and she began making the payments again. The trial judge relied on this information when determining that the disability benefits were a marital asset that should be divided equally between the husband and the wife. Both the trial court and the wife rely on section 61.075(5)(a)(4), Florida Statutes (2007), as support for the conclusion that the disability insurance policy benefits are a marital asset. That section states that marital assets and liabilities include "all vested and nonvested benefits, rights and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs."

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