Opinion
No. 85-1061.
April 10, 1986. On Motion for Rehearing June 5, 1986.
Appeal from the Circuit Court for Brevard County, Thomas Waddell, Jr., J.
Walter T. Rose, Jr., of Rose Weller, Cocoa Beach, Joan H. Bickerstaff, Melbourne, for appellant.
Grady W. White and George E. McCarthy, Melbourne, for appellee.
This is an appeal from a final judgment of dissolution of marriage.
Using a procedure this court has previously approved in Gardner v. Gardner, 452 So.2d 981 (Fla. 5th DCA 1984), the trial court ordered the parties to resolve their differences over property distribution by requiring the husband to compose two lists of properties and then submit the lists to the wife for her to choose which she would have the court award to her. The husband failed to present the two lists so, under the court's requirement the wife had to present the two lists. She presented the lists, the husband chose one and later, before judgment was rendered, the wife discovered she had mistakenly left out certain properties. Under the judge's scheme this meant the one who did not draw up the lists got the property. Because of the mistake, the wife was short-changed. This resulted in unfairness and an inequitable division of the properties. As was said in Gardner, the trial court should maintain supervision and control over the division of property in order to avoid inequity. That was not done so we reverse that portion of the judgment which concerns property distribution and remand this cause to the trial court for a complete and equitable division of the property giving to each party what the court determines in its discretion to be fair and equitable. In all other respects the judgment is affirmed.
AFFIRMED in part; REVERSED in part; REMANDED.
UPCHURCH, J., concurs.
SHARP, J., concurring in part with opinion.
While I agree the judgment should be reversed because of the inequitable property distribution, I think we should not tie the trial judge's hands by foreclosing the possibility of an alimony award in this case. Equitable distribution of marital properties and alimony awards are often interrelated, and should be viewed in the totality of the parties' economic posture following the dissolution. A less than equal property distribution may be justified when periodic alimony is awarded.
Condren v. Condren, 475 So.2d 268 (Fla. 2d DCA 1985); Neff v. Neff, 386 So.2d 318 (Fla. 2d DCA 1980).
Walter v. Walter, 464 So.2d 538 (Fla. 1985), Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
See Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).
In this case there are facts which would support at least a rehabilitative alimony award: the former wife was unemployed; she was educated in Germany, but it will take her at least two years of college work to obtain a degree from an American college or university to enable her to obtain a teaching position; she has no income other than the support her husband paid to her. The property distribution may not afford her a sufficient income to support herself and obtain the additional training she needs to become self-supporting. That was clearly the situation with regard to the judgment we are reversing.
See Blakistone v. Blakistone, 462 So.2d 883 (Fla. 2d DCA 1985); In Re Marriage of Jones, 357 So.2d 439 (Fla. 2d DCA 1978).
ON MOTION FOR REHEARING
In our opinion filed April 10, 1986, we stated that "before judgment was rendered, the wife discovered she had mistakenly left out certain properties." This statement was inaccurate but does not alter our opinion.
An overall review of the record indicates that certain liabilities and assets, including the responsibility for the tax lien, the annual premiums on the joint life insurance policy and the status of the joint business checking account which both parties expressed concern over, were not provided for in the lists or the final judgment. The disparate net values of the lists also indicates that the trial court did not adequately supervise the distribution.
The trial court's denial of attorney's fees and alimony was based on competent evidence that the wife could obtain a position teaching German in the county school system and that she had already paid her attorney a large portion of the fees.
With the foregoing explanation and modification we deny the petition for rehearing.
REHEARING DENIED.
UPCHURCH, J., concurs.
SHARP, J., dissents without opinion.