Opinion
No. 90-0174.
March 20, 1991. On Motion for Rehearing and Reconsideration June 12, 1991.
Appeal from the Circuit Court for Palm Beach County, Hubert R. Lindsey, J.
Ronald Sales of the Law Office of Ronald Sales, P.A., West Palm Beach, for appellant/cross appellee.
Lewis Kapner of Lewis Kapner, P.A., West Palm Beach, for appellee/cross appellant.
We reverse and remand to the trial court with directions to reconsider the equitable distribution award to the wife, to attach the omitted child visitation schedule to the final judgment, and in light of the trial court's reconsideration of the equitable distribution of the marital assets, to reconsider the attorney's fees award to the wife.
The trial court erred in over-evaluating the husband's professional association, which was considered a marital asset, by failing to subtract the liabilities of the professional association from its assets. As a result of the over-evaluation, the trial court abused its discretion in awarding to the wife a lump sum that was an inequitable amount.
Moreover, at the time of the final hearing, the trial court failed to consider the fact that the wife, approximately two months after the filing of the dissolution action, had received a substantial sum from her employer's deferred payment plan. We conclude that the trial court abused its discretion in failing to consider that sum in computing the marital assets. Section 61.075(4), Florida Statutes, provides:
The date for determining marital assets and liabilities and the value of such assets and the amount of such liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage, unless the trial judge determines another date is just and equitable under the circumstances. (emphasis added)
Section 61.075(4) allows the trial judge to change the date of measuring of the parties' marital assets from the date of filing for dissolution of marriage if the trial judge determines another date is just and equitable under the circumstances. In Brotman v. Brotman, 528 So.2d 550 (Fla. 4th DCA 1988), this court held that the husband's severance pay and earned vacation pay, which was received upon termination of his employment after the parties were separated but before dissolution, were marital assets and subject to equitable distribution. In our view, the sum the wife received from her employer as an earnings buy out could be considered a form of severance pay. Thus, we conclude the trial court abused its discretion in not changing the valuation date to January of 1989 when the new date was only two months from the filing of the petition for dissolution and the wife received such a large sum of money which would materially change the trial court's equitable distribution calculation.
In light of the fact that the trial court will be reconsidering the amount to be awarded to the wife as equitable distribution of the marital assets, the trial court may reconsider the award of attorney's fees to the wife. In all other respects we affirm the trial court.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
DELL and GUNTHER, JJ., concur.
ANSTEAD, J., concurs in part and dissents in part with opinion.
ON MOTION FOR REHEARING AND RECONSIDERATION
We grant the petition for rehearing for the limited purpose of correcting our previous opinion.
In our previous opinion, we erroneously stated that the husband's professional association was considered a marital asset by the trial court. We correct that statement here by noting that the trial court correctly considered the increase in the value of the husband's professional association during the parties' marriage as a marital asset rather than the entire value of the association. However, the trial court erred in over-evaluating the increase in the value of the association by failing to subtract the liabilities of the professional association from its assets. Therefore, as we stated in our previous opinion, we reverse and remand to the trial court with directions to reconsider the equitable distribution award to the wife (the sum received by the wife from her employer's deferred payment plan should be considered a marital asset), to attach the omitted child visitation schedule to the final judgment, and to reconsider the attorney's fees award to the wife.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
DELL and GUNTHER, JJ., concur.
ANSTEAD, J., specially concurring with opinion.
I agree that the parties have raised nothing new on rehearing. However, as the majority notes, and, contrary to the statement in the majority opinion of March 20, 1991, we are all in agreement that the trial court did not consider the husband's medical practice as a marital asset. Rather, the trial court considered the increase in the cash assets of the practice as a marital asset. There is a substantial difference, especially here where the husband was a successful ophthalmologist before and after the marriage. It is the comparison between the husband's premarital asset, i.e. his medical practice, and the wife's premarital asset, i.e. her vested interest in her employment with I.B.M., that was the basis of my partial dissent in this case.
I agree with the majority that the proof is unclear as to any increase in value of the husband's business and that this issue needs to be reexamined. I agree that the trial court did not err in the amount of child support awarded or in awarding the wife attorney's fees. I disagree as to the inclusion of the wife's buy-out of her employment with IBM. The trial court denied the wife's request for alimony and the court was entitled, I believe, to consider the buy-out as simply a reflection of the wife's vested interest in her job, an interest vested before the parties' marriage, much like the husband's interest in his business. In addition, the trial court could have considered these funds as available for the wife's support in case she cannot easily return to the work force. Under these circumstances it seems inappropriate to me to include the wife's buy-out as a marital asset subject to division between the parties.