Invading Assets as Temporary Support: QUESTION: How do Family Law Courts in Florida deal with the dissipation of marital assets in fashioning an award of equitable distribution, and what type of behavior (misconduct) constitutes such? DISCUSSION: The general rule is that dissipation of assets is a factor that the Courts should be address in equitable distribution.  Rabbath v. Farid, 4 So.3d 778 (2009). “[I]n domestic relations cases, ‘dissipation’ occurs where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown."  Murray v. Murray, 636 So.2d 536, 538-39 (Fla. 1st DCA 1994) (quoting Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990), disapproved on other grounds, Acker v. Acker, 904 So.2d 384, 389 (Fla.2005)); Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087, 1094 (1981). One of the classic cases of this “own benefit/unrelated to marriage” test is, obviously, adultery.  Practically, of course, the amount “dissipation”, or money spent,  must be relatively significant.  Good luck getting an extra chunk of equity in the rental home because the wife spent a few bucks on a hotel to visit her paramour.  In Rabbath, however the Husband was hammered when he was evasive and not forthcoming in providing financial records, and could not adequately explain $383,551.83 worth of transactions over a 2 year period found by an “expert” divorce financial analyst.  Based upon these facts the First DCA decided that [t]he court accepted competent, substantial evidence indicating that Appellant made unnecessary trips to Belarus, that he and his mistress traveled using marital assets, and that he lavished gifts upon her. Accordingly, [we] find no abuse of discretion in the trial court's findings that Appellant dissipated $383,551.83 while engaged in the extra-marital affair and that his misconduct should be factored into the equitable distribution of the parties' assets and liabilities.” 4 So.3d at 781.  The First District did factor it in and affirmed the trial court’s unequal distribution, the details of which were not discussed. A trickier case is one where the “misconduct” is something like substance abuse.  In Guobaitis v. Sherrrer, the Appellate Court reversed a grossly inequitable distribution to a alcoholic, drug addicted Husband, (73% of the debt and only 28% of the assets) even though such is authorized under Florida Statute 61.075.  18 So. 3d 28 (2009 3rd DCA). The Key thing to note in this case is not that this behavior can’t be a form of dissipation, but the court must create a nexus between the behavior and the alleged dissipation, in order to justify an unequal distribution of assets and debts.  As the court noted, “[a]lthough the parties acknowledge that the "intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition," can justify a trial court's unequal distribution of marital assets and liabilities… the trial court's order does not reflect whether this factor played any role in the distribution of the marital assets and liabilities, and the record before us does not support the inequitable distribution based on this factor…Because the final judgment does not make specific findings, and our review of the record does not support the grossly disproportionate distribution of the parties' assets and liabilities, we remand for reconsideration of the equitable distribution of the marital assets and liabilities. Upon remand, if the trial court enters an unequal distribution, it must make findings of fact justifying the distribution.”  Id. at 32.  So, being a drunk and a junkie is not enough to justify unequal treatment in equitable distribution, but cashing in the 401-K to buy prostitutes and blow in a 3 day bender in Vegas very well may be.

 4 So.3d 778 (2009)


Claude RABBATH, Appellant,

v.

Hala M. FARID, Appellee.



No. 1D07-6583.



District Court of Appeal of Florida, First District.



March 17, 2009.



779*779 Mary A. Kane, of the Law Offices of Mary Kane, LLC, Tallahassee, for Appellant.



Wendy Loquasto, of Fox & Loquasto, P.A., Tallahassee; and Scott T. Manion, Legal Services of North Florida, Inc., Tallahassee, for Appellee.



REVISED OPINION ON APPELLEE'S MOTION FOR REHEARING



BROWNING, J.



We substitute this slightly revised opinion for our opinion in Rabbath v. Farid, 34 Fla. L. Weekly D201 (Fla. 1st DCA Jan. 21, 2009). Claude Rabbath (Appellant), the former husband, appeals several findings of fact and conclusions of law made by the circuit court in a final judgment dissolving Appellant's 22-year marriage to Hala M. Farid (Appellee), the former wife. Appellant contends that the trial court abused its discretion in 1) finding that 780*780 Appellant concealed income and assets and dissipated marital assets; 2) ordering Appellant to pay Appellee $2,000.00 monthly for permanent, periodic alimony; 3) ordering Appellant to pay Appellee's attorney's fees; and 4) imputing income to Appellant and ordering him to pay $1,030.00 monthly for child support. We affirm that portion of the final judgment dissolving the parties' marriage. However, because no competent, substantial evidence supports the imputation of income to Appellant at the substantial level found by the court, we are constrained to reverse the awards of alimony, child support, and attorney's fees and to remand for an evidentiary hearing to determine the proper amount of income to impute to Appellant based on his current employment prospects, "recent work history, occupational qualifications, and prevailing earnings level in the community." § 61.30(2)(b), Fla. Stat. (2005); see Swain v. Swain, 932 So.2d 1214, 1215 (Fla. 1st DCA 2006); Porter v. Porter, 873 So.2d 538, 541 (Fla. 1st DCA 2004); Smith v. Smith, 737 So.2d 641, 645 (Fla. 1st DCA 1999).



I. Concealment of Income and Assets and Dissipation of Marital Assets



"A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor's real ability to pay." Id. at 644. In her petition to dissolve the parties' marriage, Appellee alleged that Appellant had concealed income and had dissipated marital income and assets totaling approximately $150,000.00 while engaged in an ongoing extra-marital affair. Relying on the expert testimony of Barbara Pople and Appellee's testimony, the trial court determined that Appellant had concealed income and assets relating to his overseas bank and credit card accounts and, since at least 2003, had dissipated marital assets in an amount totaling at least $383,551.83 while engaging in an extra-marital relationship with a woman who lived in Belarus. The trial court specifically took into account the following evidence in the record: sexually explicit e-mails and photos exchanged between Appellant and a woman in Belarus named Nina, whom Appellant described as his "translator"; e-mails between Appellant and a travel agent in Belarus; and Appellant's financial records, which detailed extensive travel and gift expenses for him and his mistress.

In domestic relations cases, "dissipation" occurs "where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Murray v. Murray, 636 So.2d 536, 538-39 (Fla. 1st DCA 1994) (quoting Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990), disapproved on other grounds, Acker v. Acker, 904 So.2d 384, 389 (Fla.2005)); Hellwig v. Hellwig, 100 Ill.App.3d 452, 55 Ill.Dec. 762, 426 N.E.2d 1087, 1094 (1981). Adultery can be considered in fashioning an unequal distribution of assets and liabilities to the extent the marital misconduct depleted marital resources. See Childers v. Childers, 640 So.2d 108, 109 (Fla. 4th DCA 1994). Evidence of a spouse's dissipation of assets is a proper consideration for the trial court in devising an equitable distribution. See Escudero v. Escudero, 739 So.2d 688, 692-93 (Fla. 5th DCA 1999); Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994).

Ms. Pople, who is certified as a public accountant, financial planner, and divorce financial analyst, testified she had analyzed the financial disclosures supplied by the parties. She acknowledged having received very limited information regarding 781*781 the parties' financial records and activities, from which she drew logical conclusions using whatever data were produced. Appellant testified that after his 25-year employment contract with Michelin in the Middle East ended, the company made it very difficult for him to obtain certain personal financial records. Additionally, he testified that he did not have access to other financial records that remained in the marital residence in Tallahassee, Florida, after Appellee served the petition to dissolve the marriage and Appellant moved to his sister's residence. Whether or not Appellant acted in good faith and presented the most complete financial records reasonably available to him was a matter of credibility for the trial court to resolve. See Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). We believe the record supports the reasonable conclusion that Ms. Pople analyzed the parties' financial activities and records as well as could be expected, given the obvious gaps in the information provided to her.

Even allowing for the fact, asserted by Appellant, that personal checks and business checks are rarely used for payment, and cash is the preferred method of payment in the Middle Eastern economies where he worked for Michelin, we cannot ignore the record evidence that Appellant's responses to relevant questions regarding his income and expenses were evasive or incomplete. Ms. Pople identified $383,551.83 in transactions during a two-year period of the marriage, which she concluded were very likely instances of asset dissipation. She explained the criteria she used in selecting the various financial transactions, and she included references from Appellant's financial records to support each item contained in her report. The record supports the trial court's conclusion that Appellant's testimony left the vast majority of Ms. Pople's report of suspected asset dissipation unchallenged. The court accepted competent, substantial evidence indicating that Appellant made unnecessary trips to Belarus, that he and his mistress traveled using marital assets, and that he lavished gifts upon her. Accordingly, we find no abuse of discretion in the trial court's findings that Appellant dissipated $383,551.83 while engaged in the extra-marital affair and that his misconduct should be factored into the equitable distribution of the parties' assets and liabilities. See Romano, 632 So.2d at 210.

Likewise, competent, substantial evidence in the record—the testimony of Ms. Pople and Appellee and the financial records—supports the trial court's conclusion that Appellant tried to conceal income and assets. During the litigation of this case, Appellant failed to disclose a great deal of financial information relevant to his overseas bank and credit card accounts. The record supports the trial court's determination that Appellant's testimony failed adequately to explain what happened to substantial marital assets (under his control) while he remained working in the Middle East before relocating to Tallahassee, where his family preceded him. Appellant's failure to account for these missing funds justifies an unequal distribution of assets and liabilities in Appellee's favor. Because competent, substantial evidence supports the trial court's findings of fact concerning equitable distribution, Appellant has not shown an abuse of discretion. See Craig v. Craig, 982 So.2d 724, 727 (Fla. 1st DCA 2008).


18 So.3d 28 (2009)



Richard J. GUOBAITIS, Appellant,

v.

Lisa Lorraine SHERRER, Appellee.



No. 3D07-1270.



District Court of Appeal of Florida, Third District.



September 2, 2009.



29*29 Paul Morris, Miami, for appellant.



Greene Smith & Associates and Cynthia L. Greene, Miami; Fogel Rubin & Fogel, Miami, for appellee.



Before GERSTEN, SUAREZ, and ROTHENBERG, JJ.



ROTHENBERG, J.



The husband, Richard J. Guobaitis, appeals from a final judgment of dissolution of marriage, challenging, in part, the equitable distribution of the marital assets and liabilities, including the trial court's failure to address the parties' 2005 federal tax liability, and the award of permanent periodic alimony to the wife, Lisa Lorraine Sherrer. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

In October 2005, the wife petitioned to dissolve the parties' twenty-one year marriage. At trial, the testimony demonstrated the following. The parties were married in 1984, and have one child who was born in 1994. The husband worked fulltime as a physician until February 2006, and earned $250,000 in 2005. The wife worked part-time as a pharmacist, and was primarily responsible for managing the household and raising the parties' child.

In 2004, it became apparent that the husband was abusing alcohol. The parties addressed the issue, and agreed that the husband would not enter an in-patient treatment program due to its high cost. 30*30 Instead, the husband took a medication for the treatment of alcoholism and attended Alcoholics Anonymous meetings. Unfortunately, the husband continued to abuse alcohol.

In July 2005, the wife and child, with the husband's consent, moved to South Carolina to allow the child to attend a specific school. Upon relocating to South Carolina, the wife worked as a pharmacist, earning approximately $85,000 per year. Two months later, the wife returned to Key West for a visit, and found the husband "passed out," surrounded by drug paraphernalia. The wife subsequently learned that the husband began to use cocaine a month after she relocated to South Carolina. The wife and their child returned to South Carolina, and the following month, the wife filed the petition for dissolution of marriage.

The husband worked throughout 2005. However, in February 2006, the husband was required to withdraw from the practice of medicine when two of his colleagues referred him to Physicians' Referral Network ("PRN"), an organization that evaluates and treats health care professionals with addiction/substance abuse problems.

In March 2006, the husband entered a fourteen-week in-patient treatment program, and in July 2006, after completing the program, he resumed working. The husband however relapsed, and once again, he was required to withdraw from the practice of medicine, and he entered an in-patient rehabilitation program. As of the final day of trial, which was in December 2006, the husband had not completed the in-patient rehabilitation program.

At trial, Dr. John Eustace, a physician specializing in addiction medicine, testified that addiction is a disease that cannot be controlled solely by willpower because it is a neurobiological disorder. Ninety percent of the physicians who are assisted by PRN return to the practice of medicine, and Dr. Eustace opined that the husband would be in the 90% group, and should return to work within a year.

The husband presented the testimony of the certified public accountant preparing the parties' 2005 federal income tax returns. The accountant testified that, although he had not completed the tax returns, he estimated that the parties' 2005 federal tax liability totals approximately $142,000, which includes a capital gains tax of approximately $82,000 for real property the husband sold in 2005.

Following the hearing, the trial court entered its final judgment of dissolution of marriage. Although the equitable distribution of the marital assets and liabilities favors the wife, the trial court failed to set forth any reasons justifying the grossly disproportionate distribution. The trial court failed to take into account the parties' 2005 federal tax liability, and ordered the wife to assume approximately 27%, and the husband to assume 73%, of the marital liabilities.^[1]Furthermore, the wife was awarded approximately 82% of the marital assets, whereas the husband was awarded approximately 18%. Specifically, the trial court ordered that upon the sale of the marital home, the wife shall receive $760,603.26 as part of the equitable distribution of the marital assets, and shall receive the balance of the proceeds (approximately $140,000) as lump sum alimony.

In addition to lump sum alimony, the trial court found that the wife was entitled to and needs $3,000 per month in permanent periodic alimony, but awarded $500 31*31 per month because it was unclear when the husband would be permitted to resume the practice of medicine. The trial court, however, retained jurisdiction to increase the amount of alimony based on the husband's ability to pay when he completes the rehabilitation program and resumes employment.

The trial court ordered the husband, based on his income at the time of filing, to pay $1,300 per month in child support, plus 61.45% of the child's private school tuition, which is approximately $600 per month, and medical and dental expenses. In order to ensure that child support payments are maintained during the husband's recovery, he was ordered to transfer to the wife, via a Qualified Domestic Relations Order, $25,000 of his interest in a profit sharing plan awarded to him.^[2] The husband's appeal followed.

The husband contends that the trial court abused its discretion in distributing the marital assets and liabilities. We agree.

The equitable distribution of marital assets and liabilities is governed by section 61.075, Florida Statutes (2006). Subsection (1) provides that "in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors" set forth in that subsection. "An equal division of marital assets is presumptively proper under section 61.075 and thus an unequal distribution must be justified by findings made by the court." Porzio v. Porzio, 760 So.2d 1075, 1077-78 (Fla. 5th DCA 2000). See also Pomeranz v. Pomeranz, 901 So.2d 895, 896 (Fla. 4th DCA 2005) (providing that "an equitable distribution plan requires `specific written findings of fact' including `findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities'" (quoting § 61.075(3)(d), Fla. Stat. (2003))); Bailey v. Bailey, 851 So.2d 286, 287 (Fla. 3d DCA 2003) ("[I]f a court's distribution of the marital assets is disproportionate, then the court must make written findings in support of its distribution."); Maddox v. Maddox,750 So.2d 693, 694 (Fla. 1st DCA 2000) ("A trial court may avoid the obligation to divide marital assets equally by making written findings justifying the decision."); Moore v. Moore, 679 So.2d 1311, 1311 (Fla. 3d DCA 1996) (holding that the "trial court erred in its allocation of the marital debt without setting forth reasons for the unequal distribution"); Bell v. Bell, 587 So.2d 642, 643 (Fla. 1st DCA 1991) ("Absent countervailing circumstances, the starting point in distribution is an approximately equal division of marital assets.").

The record reflects that although the wife argued during the trial that she was entitled to an unequal distribution of the marital assets based on the husband's alcoholism, drug abuse, and dissipation of the marital assets during the marriage, the final judgment does not state that the unequal distribution was based on these factors. While we recognize that "[t]he final judgment may offer support for the trial court's equitable distribution even though the relevant findings are not properly labeled as finding[s] of fact pursuant to section 61.075(3)," Maddox, 750 So.2d at 694, it is unclear to what extent, if any, the trial court's distribution of the assets and liabilities relied on these factors. For example, 32*32 although it was undisputed that the husband abused both alcohol and drugs during the marriage and his loss of employment was directly caused by his drug use, there was also evidence presented that the decision not to treat the problem aggressively with residential treatment was a joint decision by the husband and wife driven primarily by economic concerns. There was also evidence presented that the husband's addiction is a disease that cannot be controlled solely by willpower.

Likewise, although the parties acknowledge that the "intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the petition or within 2 years prior to the filing of the petition," can justify a trial court's unequal distribution of marital assets and liabilities, § 61.075(1)(i); see Bell, 587 So.2d at 643 (holding that "a party's conduct is not a valid reason to award a disproportionate amount of the marital assets to an innocent spouse unless [the conduct] depleted the marital assets"), the trial court's order does not reflect whether this factor played any role in the distribution of the marital assets and liabilities, and the record before us does not support the inequitable distribution based on this factor. The record reflects that the husband's non-mortgage related debt substantially increased and that the husband depleted approximately $22,000 from a retirement account after the petition was filed. However, a majority of these funds were used to maintain the parties' marital assets and expenses while the dissolution proceeding was pending.

Because the final judgment does not make specific findings, and our review of the record does not support the grossly disproportionate distribution of the parties' assets and liabilities, we remand for reconsideration of the equitable distribution of the marital assets and liabilities. Upon remand, if the trial court enters an unequal distribution, it must make findings of fact justifying the distribution. See Franklin v. Franklin, 988 So.2d 125, 126 (Fla. 2d DCA 2008)(holding that the appellate court must reverse an unequal distribution of the marital assets if the trial court fails to make specific findings of facts justifying the distribution). On remand, the trial court is also free to consider the dissipation of marital funds to purchase drugs or to fund the husband's extramarital affair in determining the equitable distribution of the parties' assets.^[3]See Heilman v. Heilman, 610 So.2d 60, 61 (Fla. 3d DCA 1992) ("Absent a showing of a related depletion of marital assets, a party's misconduct is not a valid reason to award a greater share of marital assets to the innocent spouse.").

We also find that the trial court abused its discretion by not addressing the parties' 2005 federal tax liability. Although the exact amount owed to the Internal Revenue Service for the 2005 tax year was not certain, there is no doubt that the parties' federal taxes for 2005 remained unpaid and were due. As stated by Benjamin Franklin in 1789 in a letter to Jean-Baptiste Leroy: "Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes." http://www. kevinstilley.com/benjamin-franklin-quotes/ (last visited July 15, 2009). See also Huntley, 33*33578 So.2d at 892 (holding that the trial court, in determining party's net monthly income, erred by refusing to deduct federal income taxes just because spouse "had not yet been required to pay the taxes").

Lastly, we address the husband's contention that the trial court abused its discretion by awarding permanent periodic alimony to the wife. We find no abuse of discretion as to the award of permanent periodic alimony, the amount ordered, or the trial court's reservation of its jurisdiction to reconsider the amount of permanent periodic alimony to be awarded in the future.

In awarding permanent periodic alimony, the trial court recognized several factors: the parties were married for twenty-one years, which is considered a long-term marriage; the husband earned approximately $250,000 in 2005, which is the year when the action was filed, whereas the wife earned less than a quarter of that amount; the parties maintained a fairly high standard of living, which included not only the marital home valued at $1,390,000, but a vacation home; and the wife was primarily responsible for raising their child and managing the household. See§ 61.08, Fla. Stat. (2006). Based on these factors, the trial court found that the wife needed approximately $3,000 per month in permanent periodic alimony. The trial court, however, considered the husband's situation, and awarded $500 per month until the husband completes the rehabilitation program and resumes employment, and retained jurisdiction to increase the amount commensurate with his ability to pay. Thus, based on the specific facts of this case, we conclude that the trial court did not abuse its discretion in awarding permanent periodic alimony to the wife.

In light of our holding reversing the equitable distribution of the parties' marital assets and liabilities and remanding for reconsideration, the trial court shall reconsider the entire distribution scheme, including the award of alimony, both permanent periodic and lump sum; the equitable distribution of the marital assets and liabilities; and child support. See Rosario v. Rosario, 945 So.2d 629, 631 (Fla. 4th DCA 2006) ("In dissolution cases, the trial judge has broad discretionary authority to do equity between the parties. Available remedies include lump-sum alimony, permanent periodic alimony, [and] child support.... Because these remedies are interrelated as part of an overall scheme, it is `extremely important that they also be reviewed by appellate courts as a whole, rather than independently.'" (quoting Canakaris v. Canakaris,382 So.2d 1197, 1202 (Fla.1980) (citations omitted))). Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.^[4]

Affirmed in part, reversed in part, and remanded for further proceedings.

[1] If the wife refuses to file a joint tax return for 2005, the husband will be liable for the bulk of the tax liability because the property that was sold was owned by the husband and the husband earned the majority of the income in 2005.

[2] The husband has not appealed any portion of the final judgment pertaining to child support.

[3] The husband acknowledges in his brief that the record demonstrates that he spent approximately $15,000 to purchase drugs and on a "fling." See Huntley v. Huntley, 578 So.2d 890, 892 (Fla. 1st DCA 1991) (holding that spouse was entitled to an equitable share of all marital assets, including marital resources that were "dissipated by the husband's addiction").

[4] The remaining issues raised by the husband lack merit.

By Kenny Leigh