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Schroll v. Schroll

Florida Court of Appeals, First District

November 13, 2019

Stephen B. Schroll, Former Husband, Appellant,
Nancy Smith Schroll, Former Wife, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Santa Rosa County. David Rimmer, Judge.

          Therese A. Felth of McKenzie Law Firm, P.A., Pensacola, for Appellant.

          Laura E. Keene of Beroset & Keene, Pensacola, for Appellee.

          Bilbrey, J.

         Stephen Schroll, the former husband, appeals to this court for a third time from rulings in the dissolution of marriage proceedings below. In the first appeal, Schroll v. Schroll, 227 So.3d 232 (Fla. 1st DCA 2017), we affirmed the final judgment in part and reversed in part.[*] The case was remanded for reconsideration of the equitable distribution scheme, re-valuation of the investment assets, and reconsideration of the permanent alimony requested by the former wife. The former husband now appeals the portion of the amended final judgment entered on remand which awarded the former wife $5, 000.00 per month in permanent alimony. Because the trial court's findings of the former wife's need for permanent alimony failed to address her income, if any, from her equitably distributed assets, we are compelled to reverse the alimony portion of the amended final judgment and remand once again for further proceedings.

         The parties' history - running the family retail business, the former husband's use of marital assets to cover marital expenses during the pendency of this litigation, and the former wife's relatively passive role in the finances - is set out in our first opinion. 227 So.3d at 234-35. The parties' marriage of 32 years raised the rebuttable presumption that permanent alimony was appropriate, particularly considering the parties' relative roles in the family retail business and management of the family finances. "Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage." § 61.08(8), Fla. Stat. (2018). For this long-term marriage, the court was authorized to award permanent alimony "if such an award is appropriate upon consideration of the factors set forth in subsection [61.08(2)(a)-(j)]." § 61.08(8).

         On remand from the first appeal, the trial court attempted to comply with this court's instruction by specifically finding that the former wife has a need for payment of permanent alimony, and that her need has not changed since the time of the final hearing, at which time the former wife testified that she needed $5, 000 per month net alimony. This amount is consistent with the former wife's Amended Family Law Financial Affidavit filed on February 29, 2016, where she reported no gross income and expenses of $4, 890.00, resulting in a monthly deficit of $4, 890.00. However, the trial court apparently overlooked the former wife's testimony at the hearing on remand that she received some investment income in the amount of $2, 500.00 per month from her equitably distributed accounts. The former wife was uncertain whether this income was from interest or dividends, but there was no indication that the principal of her investments was being depleted to provide these payments. Although the former wife is not as financially experienced as the former husband and she has entrusted the management of her equitably distributed accounts to a financial management company, her testimony constituted competent substantial evidence that her income is no longer zero.

         Section 61.08(2)(i), Florida Statutes, specifies that the trial court must consider "[a]ll sources of income available to either party, including income available to either party through investments of any asset held by that party." "Income" includes "any form of payment to an individual, regardless of source, including . . . annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments." § 61.046(8), Fla. Stat. "This includes payments received from interest-generating retirement accounts." Duke v. Duke, 211 So.3d 1078, 1081 (Fla. 5th DCA 2017).

         As stated in Sikora v. Sikora, 173 So.3d 1028, 1032 (Fla. 2d DCA 2015), "[t]rial courts may impute income from interest earned on retirement accounts if the income is readily available to a spouse without penalty and without need to reduce the principal." "'When a party receives an asset in equitable distribution that will result in immediate investment income,' that income should not be excluded for purposes of determining alimony." Sherlock v. Sherlock, 199 So.3d 1039, 1044 (Fla. 4th DCA 2016) (quoting McLean v. McLean, 652 So.2d 1178, 1181 (Fla. 2d DCA 1995)). For alimony determinations where retirement or investment accounts were distributed, the "court would abuse its discretion not to take into account evidence presented that shows that a spouse has a substantial source of income available but refuses to access it." Niederman v. Niederman, 60 So.3d 544, 549 (Fla. 4th DCA 2011).

         The trial court's finding in general that the former wife needed permanent alimony to pay her reported expenses was not an abuse of discretion, given the rebuttable presumption that permanent alimony is appropriate for a long-term marriage. See § 61.08(8), Fla. Stat. We do not disturb that finding on appeal. However, because the trial court failed to consider the former wife's income resulting from the equitable distribution, the cause must be remanded for reconsideration of her unmet need for income. See Burnett v. Burnett, 237 So.3d 447, 449 (Fla. 1st DCA 2018).

         If, upon remand, the court finds that that the former wife's income from her equitably distributed assets will fail to meet her need, the same definition of "income" applies to the determination of the former husband's ability to pay alimony. See Acker v. Acker, 904 So.2d 384, 388 (Fla. 2005) (income from equitably distributed pension properly considered in determination of ability to pay alimony); Adelberg v. Adelberg, 142 So.3d 895, 899 (Fla. 4th DCA 2014) (rate of return on retirement funds and interest accrued in non-marital bank accounts should be included in calculating former spouse's total income for purposes of alimony determination). If the trial court again finds the former husband's reported income lacks credibility, the court is authorized to impute income to him based on other factors in the record, such as his history of payment of expenses, lack of debt to allow such payment to continue, and lack of evidence that payments would require liquidation of capital assets. See Moody v. Newton, 264 So.3d 292, 294-95 (Fla. 5th DCA 2019) (affirming income imputed to self-employed former spouse where business records failed to reflect true net income).

         Accordingly, the amended final judgment on remand is Reversed in part and Remanded in part for reconsideration of the amount of permanent alimony that the former wife needs upon consideration of both parties' income from equitably distributed ...

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