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Smart Summary

Factual and Procedural Background

John Lewis and Ester Lewis were married on August 13, 1977. Ester filed for dissolution of marriage on February 25, 1992. They had two children, ages five and eight at trial. At trial, John earned $40,000 annually, while Ester was unemployed but had a history of working as a bookkeeper earning approximately $18,000 annually prior to being laid off in 1989. The major marital assets included the marital home, a Charles Schwab account, the husband's pension, and a thrift account. The husband received a work-related claim award of $67,058.25 in 1991, which was deposited into a Schwab account under his mother’s name. Despite a court order enjoining disposal of marital assets, the husband depleted this account to less than $1,000 by trial. The trial court awarded the wife's full interest in the marital home in satisfaction of her claims to the Schwab account, pension, and thrift account. The court also awarded rehabilitative alimony to the wife, set child support without imputing income to the wife, established a visitation schedule, and awarded attorney's fees and costs to the wife. The husband appealed.

Legal Issues Presented

  1. Whether the trial court erred in identifying, valuing, and distributing the parties' assets and liabilities.
  2. Whether the trial court erred by awarding the wife the husband's share of the equity in the marital home.
  3. Whether the trial court erred in awarding rehabilitative alimony to the wife.
  4. Whether the trial court erred in failing to impute income to the wife for child support calculations.
  5. Whether the trial court erred in setting the visitation schedule for the minor children.
  6. Whether the trial court erred in awarding attorney's fees and costs to the wife.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Murray v. Murray, 374 So.2d 622 (Fla. 4th DCA 1979) Definition and purpose of rehabilitative alimony as aid to regain self-support. Supported the award of rehabilitative alimony to the wife to enable her to regain employment capacity.
Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976) Consideration of disparate financial conditions in alimony and support determinations. Supported the court’s recognition of the wife’s financial disparity compared to the husband.
Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA), rev. denied, 519 So.2d 986 (Fla. 1987) Equitable considerations in awarding rehabilitative alimony beyond restrictive definitions. Justified the rehabilitative alimony award based on equitable realities of the parties’ circumstances.
Longo v. Longo, 533 So.2d 791 (Fla. 4th DCA 1988) Limits on rehabilitative alimony awards to avoid using it solely for equity or transition periods. Distinguished from the instant case where rehabilitative alimony was appropriate.
Lane v. Lane, 599 So.2d 218 (Fla. 4th DCA 1992) Trial court’s discretion in child visitation matters, not bound by parties’ stipulations. Supported the court’s reasonable visitation schedule despite parties’ disagreement.
Forte v. Forte, 320 So.2d 446 (Fla. 3d DCA 1975), cert. denied, 351 So.2d 406 (Fla. 1977) Trial court discretion in visitation matters. Reinforced the court’s authority to set visitation contrary to parties’ oral agreements.
Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984) Trial court discretion in visitation decisions. Supported the visitation schedule as reasonable and within trial court discretion.
Neustein v. Neustein, 503 So.2d 439 (Fla. 4th DCA 1987) Trial court discretion in visitation scheduling. Upheld the visitation schedule as reasonable exercise of discretion.
Letourneau v. Letourneau, 564 So.2d 270 (Fla. 4th DCA 1990) Limits on granting one parent control over all visitation rights. Distinguished from this case where the visitation schedule did not place control solely with the wife.
Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) Requirement for attorney's fees awards to be supported by findings on hours and rates. Mandated reversal of attorney's fees award due to lack of findings.
Sunday v. Sunday, 610 So.2d 62 (Fla. 3d DCA 1992) Standards for awarding attorney's fees including detailed findings. Supported reversal and remand for proper findings on attorney's fees.

Court's Reasoning and Analysis

The court analyzed each issue in turn. It found the trial court's valuation and distribution of assets and liabilities supported by the record, noting the husband's intentional dissipation of the Schwab account in defiance of a court order. This justified the trial court's discretion to assign liabilities solely to the husband and effect an unequal distribution under Florida Statutes § 61.052 (1993), although the ultimate distribution was near equal.

Regarding rehabilitative alimony, the court relied on precedent defining it as support to enable a spouse to regain self-support capacity. Given the wife’s prior employment history, education, and ongoing efforts to find work, the award was appropriate and equitable.

The court held that income should only be imputed to a spouse if unemployment is voluntary. Since the wife was actively seeking employment, the trial court did not err in refusing to impute income for child support calculations.

On visitation, the court emphasized that the trial court is not bound by parties’ agreements and has discretion to set reasonable visitation schedules. The visitation order was reasonable and did not unduly place control with the wife, distinguishing from cases where one parent was granted excessive control.

Finally, the court found the award of attorney's fees deficient because the trial court failed to make findings regarding the reasonableness of hours expended and hourly rates. This necessitated reversal and remand for proper findings consistent with established standards.

Holding and Implications

The court REVERSED the award of attorney's fees and remanded for further proceedings to establish the necessary findings supporting the award.

The court AFFIRMED the final judgment of dissolution of marriage in all other respects, including asset distribution, alimony, child support, and visitation.

The direct effect is that the parties’ dissolution judgment remains largely intact except for the attorney's fees award, which requires reconsideration. No new precedent was established beyond the application of existing standards.

JOHN LEWIS, APPELLANT, v. ESTER LEWIS, APPELLEE.

KROLL, KATHLEEN J., Associate Judge.

In his appeal from a final judgment of dissolution of marriage, John Lewis claims the trial court erred in (1) identifying, valuing and distributing the assets and liabilities of the parties; (2) awarding to the wife his share of the equity in the marital home; (3) awarding the wife rehabilitative alimony; (4) failing to impute income to the wife in determining the child support amounts; (5) setting a visitation schedule with the minor children; and (6) awarding the wife attorney's fees and costs. We reverse the award of attorney's fees because the trial court made insufficient findings to afford proper appellate review of the attorney's fees issue. We otherwise affirm the final judgment of dissolution in all respects.

The parties were married on August 13, 1977, and the wife filed a petition for dissolution of marriage on February 25, 1992. They had two children during the marriage, ages five and eight as of the trial. At that time, the husband earned $40,000 annually and the wife was not employed. She had worked almost continuously throughout the marriage, with the exception of two years following the birth of her first child, but was laid off in 1989. The wife had been making approximately $18,000 per year as a trained bookkeeper. At the time of trial, she had been looking for employment.

The major marital assets of the parties were the marital home, a Charles Schwab account, the husband's pension and a thrift account. Concerning the background on the Charles Schwab account, the trial court found that in January 1991, the husband was awarded $67,058.25 on a work-related claim which was a marital asset. He deposited the money into a Charles Schwab account under his mother's name. The trial court found in its final judgment that $54,000 in marital assets, in the form of stocks, remained in the account as of February 25, 1992. The trial court had issued an order on that date enjoining the husband from disposing of any marital property or assets. The husband admitted he depleted the account after the order was issued, giving various and sundry explanations for the consumption of the funds. At the commencement of trial, less than $1000 remained in the Schwab account.

The trial court then awarded the husband's interest in the house to the wife, resulting in the wife receiving full right and title to the marital home. In its order on the husband's motion for clarification, the trial court emphasized that the wife had been given the husband's interest in the marital home in satisfaction of her claim to the Schwab account, the pension and the thrift account.

The record supports the trial court's valuation and distribution of assets and liabilities. The husband wrongfully, intentionally and in defiance of the trial court's order dissipated the Schwab account. Under these circumstances, the trial court had the discretion to affect an unequal distribution pursuant to section 61.052, Florida Statutes (1993). Such discretion would allow the trial court to assign the parties' liabilities solely to the husband. Notwithstanding this discretion to distribute the assets unequally, the record supports the conclusion that the trial court achieved close to an equal distribution of the marital assets and liabilities.

Additionally, the trial court ordered the husband to pay two years of rehabilitative alimony at $350 monthly. The trial court did not err when it awarded the wife this rehabilitative alimony. In Murray v. Murray, 374 So.2d 622, 623 (Fla. 4th DCA 1979), this court stated:

Rehabilitative alimony is designed to aid a person to regain the ability for self-support similar to that which previously existed or would have existed except for the marriage of the parties.

In this case, the wife had a high school education and some vocational training in bookkeeping. She had earned between $18,000 and $20,000 per year while working, compared to the husband's annual income of $40,000. Although not employed at trial, the wife was making attempts to find a job which would pay sufficient income to provide for herself and her minor children. The record supports a finding of disparate financial conditions between the husband and the wife. See Sisson v. Sisson, 336 So.2d 1129 (Fla. 1976). We believe that as a court we should not blindly follow cases attaching a restrictive definition to rehabilitative alimony without giving deference to the realities of life nor without doing that which is equitable to the parties. See Bridges v. Bridges, 506 So.2d 1047 (Fla. 4th DCA), rev. denied, 519 So.2d 986 (Fla. 1987); cf. Longo v. Longo, 533 So.2d 791 (Fla. 4th DCA 1988) (holding rehabilitative alimony not warranted under these particular facts "to do equity between the parties or to provide a `transition period' for the wife" unlike the situation in Bridges where rehabilitative alimony was properly awarded for those reasons). The wife had not worked since 1989, and rehabilitative alimony should afford her the ability to regain employment. The trial court properly ensured such a result in making the rehabilitative alimony award.

The wife's employment situation is pertinent to the issue of child support as well. As the wife had been actively endeavoring to secure a job, she was not voluntarily unemployed. Income should be imputed to a spouse only if that spouse's unemployment is voluntary. § 61.30, Fla. Stat. (1993). Therefore, the trial court did not err in refusing to impute income to the wife when calculating the parties' respective child-support responsibilities.

As to visitation, the parties had orally agreed to "liberal visitation," but ultimately failed to reach a settlement agreement. The final judgment granted visitation to the husband for every other weekend from Friday at 6:00 p.m. until Sunday at 6:00 p.m., from July 1 to August 15 every year and on Father's Day. Telephone contact was permitted Monday, Wednesday and Friday at 8:00 p.m. The trial court also provided for the parties to agree to other visitation though requiring any such agreement to be reduced to writing and signed by both parties.

The husband urges us to overturn the court-ordered visitation. He argues the schedule is unreasonable, contrary to the parties' agreement and unduly places the wife in control of his visitation. In Lane v. Lane, 599 So.2d 218 (Fla. 4th DCA 1992), this court explained that in matters of child visitation, the trial court is not bound by any stipulation or agreement. See also Forte v. Forte, 320 So.2d 446 (Fla. 3d DCA 1975), cert. denied, 351 So.2d 406 (Fla. 1977); Elebash v. Elebash, 450 So.2d 1268 (Fla. 5th DCA 1984). Moreover, the creation of a visitation schedule is within the discretion of the trial court. Neustein v. Neustein, 503 So.2d 439 (Fla. 4th DCA 1987). Based upon the record, we hold that the trial court established a reasonable visitation schedule. The mere fact that the trial court, in addition to the reasonable court-ordered visitation, made allowances for the parties to agree to additional visitation times does not place visitation under the wife's control. Cf. Letourneau v. Letourneau, 564 So.2d 270 (Fla. 4th DCA 1990) (reversing the trial court's order granting wife approval of all visitation rights).

Finally, the husband asserts the trial court erred in entering the award of attorney's fees. There must be a determination of the number of hours reasonably expended and the reasonable hourly rate to support any attorney's fees award. Florida Patient's Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985); Sunday v. Sunday, 610 So.2d 62 (Fla. 3d DCA 1992). Here, the trial court entered the attorney's fee award without any attendant findings. Thus, we must reverse this award and remand for the trial court to make the requisite findings.

At appellate argument, counsel admitted fifty-four percent of the marital assets had been consumed by attorney's fees. The parties lay blame on each other for the excessive fees. Nonetheless, when over one half of the marital assets ultimately end up in lawyers' pockets, one must ask the parties and their lawyers: What about the children?

This cause is remanded for further proceedings regarding the award of attorney's fees.

AFFIRMED IN PART; REVERSED IN PART and REMANDED.

GLICKSTEIN and PARIENTE, JJ., concur.

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