5D09-429 Boyle v. Boyle

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-429

Case Date: 03/15/2010

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2010

GAIL L. BOYLE, Appellant, v. THOMAS H. BOYLE, Appellee. ________________________________/ Opinion filed March 19, 2010 Appeal from the Circuit Court for Brevard County, Bruce Jacobus, Judge. Mark S. Peters, of Eisenmenger, Berry & Peters, P.A., Viera, for Appellant. Robert M. Marasco, Rockledge, for Appellee. CASE NO. 5D09-429

LAWSON, J. Gail Boyle ("the wife") appeals from a final judgment dissolving her twenty-five year marriage to Thomas Boyle ("the husband"). She asserts that: (1) the trial court's valuation of marital assets on the date of separation, six years prior to filing for dissolution, was unreasonable in light of the parties' continued financial ties after separation; (2) the trial court's unequal distribution of assets was also unreasonable in light of the nominal alimony award; and (3) there were insufficient facts to support the court's distribution to the husband of all assets accumulated in the husband's 401K

account after separation. We agree that relief is warranted with respect to the second issue raised, and reverse for reconsideration of the distribution scheme. The parties married in 1983 and separated in April 2001 without entering into a formal separation agreement. Almost six years later, in March 2007, the wife filed a petition for dissolution. Trial commenced in July 2008. By the time of trial, the parties' three children were all adults. The trial court entered the final judgment on appeal in January 2009. When the parties separated in 2001, the husband worked at Lowe's and had a 401K account valued at $6,451.67. The parties did not own a home, and had very few assets. Although there was no formal separation agreement, the husband gave the wife $10,000 to move and $1,400 in monthly cash (plus other regular financial support, such as health insurance coverage) during the term of the separation. The parties agreed on a co-parenting plan in which the children spent eight out of fourteen nights with the wife and six with the husband. After separation, the husband and his employer regularly contributed to his 401K account. It grew in value to $163,000 on the filing date, and then declined because of market conditions to $121,927.11 by the trial date. Although the trial court inquired about the amount of passive accumulation in the account, no evidence was presented on this issue. The husband also acquired a Benefit Restoration Plan after separation, which was valued at $23,467.88 as of the filing date. After their separation, each party maintained separate households, bank accounts and credit cards, and each purchased separate cars. The cars were equally valued at $5,000 on the filing date. Both parties accumulated credit card debt prior to

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the date of filing

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