Opinion
No. 82-1238.
December 29, 1983. Rehearing Denied February 1, 1984.
Appeal from the Volusia County Circuit Court, J. Robert Durden, J.
Ronald A. Nour, Ormond Beach, for appellant.
Garrett L. Briggs of Adams Briggs, Daytona Beach, for appellee.
We affirm the final judgment of the trial court because we find no abuse of the trial court's discretion. We also do not agree with appellant's contention that the award of child support is vague and indefinite in amount. The provision of the final judgment with respect to child support reads as follows:
The Respondent, ROBERT A. PRALLE, JR., a/k/a ROBERT A. PRALLE, commencing on the 15th day of July, 1982, and on the 15th day of each calendar month thereafter, shall pay to the Petitioner, CYNTHIA K. PRALLE, the sum of $500.00, allocated $250.00 per month per child, as and for his contribution to the support and maintenance of the parties' said children during such time as they shall be physically with the petitioner. In addition thereto, he shall pay when due such sum or sums as may be reasonably required and necessary for the hospital and medical care of the parties' said children.
The trial court directed that custody of the children be shared between the parents pursuant to section 61.13, Florida Statutes (Supp. 1982). At the final hearing the husband testified that the children had been spending approximately 15 days per month with him and the remaining time with the wife. Prior to the hearing the husband had been making monthly child support payments of $550.00 per month. In this context, we find the final judgment obligates the husband to pay $500 per month in child support. The phrase "during such time as they shall be physically with the petitioner" does not modify or qualify the husband's obligation to pay $500 per month but merely describes the child support payment and sets forth the factual basis for the support order. Therefore, we find no abuse of discretion in the amount of the child support.
AFFIRMED.
COBB, J., concurs.
SHARP, J., dissents with opinion.
I respectfully dissent. In this case there was an unequal division of marital assets accumulated by the work efforts of the spouses, and the record fails to establish any equitable reason for a unequal division. We have upheld such unequal divisions where the court also awarded rehabilitative or permanent alimony. But no periodic alimony was awarded here, even though there was a large gap in the incomes earned by the parties at the time of the dissolution hearing.
The trial court's division of the marital assets left the ex-wife with a little under $100,000.00, and the ex-husband at plus $160,000.00.
See Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981).
The ex-wife earned $150.00 a week as a secretary. The ex-husband drew a weekly salary of $400.00; his firm contributed to a pension and profit sharing plan in his name; he took a fifteen percent share of any bonus money taken out of the firm by his uncles; he was a partner in several individual construction projects in which McCarthy Builders is involved; and he had a twenty-five percent interest in Volusia Builders Supply, Inc., a closed corporation, set up to sell windows and related supplies to McCarthy Builders and other contractors.
In 1975, the Pralles moved to Florida. Since that time Robert has worked for his uncles' construction company, McCarthy Builders, Inc. Cynthia worked throughout the marriage, and, in fact, was hired by McCarthy Builders in 1977 as a secretary. Although Cynthia presently works for McCarthy Builders, she is working toward fulfilling the prerequisites to enter a nurses training program. Cynthia testified the actual nursing program lasts two years, during which time she will be unable to work. She expects to earn between $12,000.00 and $15,000.00 annually as a nurse.
Substantially all of parties' marital assets were acquired during the marriage. The trial court divided the major assets as follows:Wife's Assets Husband's Assets
Marital Residence Tymber Creek rental house value 55-58,000 value 55-58,000 mortgage 24,000 mortgage 33,700 equity 31-34,000 equity 22-25,000 rent $425.00/mo. Lakefront property Lakefront property Barberville 1/2 of a 1/3 Barberville 1/2 of a 1/3 interest interest value — $50,000 value — $50,000 Glenn Cathy Pralle Glenn Cathy Pralle promissory note 1/2 interest promissory note 1/2 interest value — $2,000 value — $2,000 Lauri Swann 1/2 interest Lauri Swann 1/2 interest promissory note value — $500 promissory note value — $500 Lump sum alimony $12,000 Tomoka Meadows Assoc. value $76,000 $11,500 annual rental income Pier 43 partnership 8% interest Sawtooth partnership 8% interest Pension profit sharing plan $21,133 --------------------------------------------------------------------------- Total ............. $95,500 to 98,500 Total ................ [*]159,633 to 162,633 plus 8% of two partnerships and 25% of Volusia Builders Supply, Inc. [*] alimony to wife deducted. On appeal, Robert asserts that his partnership interests were acquired as a gift from his uncles; however, this assertion is directly contradicted by most of his own testimony. Robert testified he built the marital residence with his uncles for a very low cost; the Tymber Creek rental house was acquired through money saved from bonuses; the interest in the Lakefront property was purchased with money earned from bonuses; and the interest in Volusia Builders Supply Company, Inc. was purchased with approximately $15,000.00 earned from working and bonuses. Although the Tomoka Meadows Association interest was given to him as an incentive to work on it, Robert also testified it was acquired through his own work and know-how. Robert further testified he has not invested any money in the Pier 43 partnership, and the pension and profit sharing plan has been in effect since he turned twenty-five. There was no testimony as to how he acquired an interest in the Sawtooth partnership."While the concept of `equitable distribution' has not been held to require an absolutely equal division of the marital assets, this court has indicated that is a good starting point, see Mahaffey v. Mahaffey, 401 So.2d 1372 (Fla. 5th DCA 1981)." Ente v. Ente, 442 So.2d 232 (Fla. 5th DCA 1983). In this case, the parties had nothing when they were married at sixteen, but, through the years, have acquired assets totaling at least $260,000.00. In this situation, a division that awards approximately sixty-two percent (62%) of those assets to Robert, and only thirty-eight percent (38%) to Cynthia, seems grossly out of balance.
I would reverse because I think the trial court abused its discretion in either failing to award some periodic alimony to the wife or achieving a more equitable division of the marital assets.