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Dunn v. Dunn

Florida Court of Appeals, Fifth District

July 12, 2019

PATRICIA S. DUNN, Appellant,
v.
WILLIAM J. DUNN, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          Appeal from the Circuit Court for Volusia County, Karen A. Foxman, Judge.

          Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, and Mitchell A. Gordon, of Mitchell A. Gordon, P.A., Daytona Beach, for Appellant.

          John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellee.

          COHEN, J.

         Patricia S. Dunn ("Former Wife") appeals the final judgment of modification ("modification order") entered in favor of William J. Dunn ("Former Husband"), reducing her permanent alimony award. We reverse.

         The parties married in 1979. During the marriage, Former Wife was a homemaker and the primary caregiver for the parties' four children. Former Husband was an ophthalmologist and established a successful practice.

         In 1999, Former Husband filed for divorce. By that time, the parties had accumulated over $3, 000, 000 in assets. The court awarded Former Wife the marital home, which was anticipated to have approximately $200, 000 in equity, but urged her to "strongly consider selling [it] as soon as possible."[1] The court also awarded Former Wife $1, 013, 238 in cash, stocks, and securities, consisting of a $538, 238 investment account and an airplane worth approximately $475, 000, which Former Wife was to sell. Additionally, the court awarded Former Wife an IRA valued at $35, 124 and other personal property, for a net total of $1, 342, 526.

         As to alimony, the court found that Former Wife had a need for alimony and that Former Husband had the ability to pay. Former Husband's financial affidavit reflected that he earned close to $80, 000 per month and that his monthly expenses were over $34, 000. The court determined that at a 6% rate of return on a principal investment of $950, 000, [2]Former Wife would yield an annual gross income of $57, 000, amounting to approximately $4750 per month. Former Wife's total monthly expenses were $17, 913. Accordingly, it found that Former Wife was entitled to a permanent periodic alimony award of $12, 000 per month. The judgment also required that Former Husband secure his alimony (and child support[3]) obligations with $1, 500, 000 in life insurance policies, designating Former Wife as the irrevocable beneficiary.

         In October 2014, Former Husband filed a petition to modify and amend the final judgment of dissolution ("modification petition"). He requested that the trial court substantially reduce Former Wife's alimony award and eliminate his obligation to secure the award with life insurance. At that time, the parties' four children were adults. Approximately three years passed between Former Husband's filing of the modification petition and the trial on the petition.

         At the trial, Former Husband testified first and explained that he earned approximately $101, 000 per month, which amounted to $54, 000 per month after paying taxes and alimony. He estimated that his tax rate was 39%-40%. His ability to pay alimony was not in dispute.[4] Former Husband also testified to the parties' standard of living during the marriage. Neither parents nor children wanted for anything. The parties owned two airplanes, had two fly-in homes, and took frequent trips to their vacation homes and to see out-of-state family, as well as other vacations.

         Former Wife was questioned extensively about her living arrangements and expenses. She testified that her father had lived with her for approximately three years prior to his death. During that time, she cared for him, and he reimbursed her for expenses associated with his care. Former Wife also testified that the parties' adult son, who suffered from mental health problems, resided with her since 2014. Former Wife paid his expenses, which were approximately $700 per month, from an account containing $63, 000 in VA death benefits left to her by her father. Former Wife admitted that the account bore her name but stated that she did not disclose it on her financial affidavit because she "d[id] not consider it [her] money." The trial court considered this omission particularly egregious. Former Wife testified that her father's estate was not yet settled but that it included an unencumbered home, valued around $500, 000. She and her four brothers listed the home for sale and intended to split the proceeds.

         Former Wife detailed her transfers of money to the parties' children and discussed the joint bank accounts she shared with them. She stated that her name was no longer on the joint accounts. She also testified that she gave the parties' son $1250 per month while he attended college but denied a routine practice of giving him money beyond paying for school expenses. Implicit in the questioning was Former Husband's apparent disapproval of her financial assistance to the parties' children.

         Former Husband examined Former Wife about her travel between 2015 and 2017. She testified that she visited the parties' children and grandchildren in Los Angeles, Denver, and North Carolina; attended her father's funeral in New Jersey; participated in their daughter's wedding in Maine; visited her family and her parent's home in New Jersey; traveled for the births and birthdays of all their grandchildren; and made a weekend road trip to North Carolina. Former Wife paid for these trips entirely ...


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