The former wife appeals the trial court's final judgment of dissolution of marriage. Specifically, the former wife challenges the trial court's refusal to award permanent alimony and the court's distribution of marital assets. For the reasons articulated below, we reverse for equitable distribution of the USAA Subscriber account and affirm in all other respects.
The parties, Janet Ray Weininger ("Janet") and Michael J. Weininger ("Michael"), were married in February 1977. They had two children — Peter and Christina. Both children were adults when the parties filed for divorce on January 28, 2009.
Throughout the marriage, Michael was the family's primary breadwinner. Michael was a pilot in the Air Force when the parties met. When he retired from active duty, he continued to fly for the Reserves, and began flying as a pilot for Delta Airlines. He later retired from the Reserves and worked only for Delta. Janet worked sporadically and/or part-time.
The family lived comfortably on Michael's income. They sent their children to private schools, and they paid for the children's college education.
The couple acquired several properties over the course of their marriage. They purchased the family home in Palmetto Bay, two rental properties in Tampa, and land in Alabama. The properties were purchased and maintained with funds from the couple's joint accounts. The rental income, along with Michael's salary and bonuses, were deposited in joint accounts.
Michael acquired several retirement accounts and insurance policies throughout his career with the Air Force, the Reserves, and Delta Airlines. Michael began receiving military retirement benefits in December of 2012, at the age of 60. His military retirement benefits were not shared with Janet. Michael also acquired the following during the marriage: a Charles Schwab investment account; a Delta Pilots Savings Plan and a Delta Pilots Defined Contribution Plan ("Delta Retirement"); and a USAA Subscriber's Account.
Janet also acquired her own funds during the marriage. She maintained an individual IRA, and also received approximately $9 million from a lawsuit stemming from the capture and death of her father during the Bay of Pigs invasion. Janet established the Wings of Valor trust ("the Trust") with the lawsuit proceeds and deposited approximately $8 million therein — naming her children, their spouses, her grandchildren and herself as beneficiaries. In 2012, the Trust had a gross declared value of $9,488,494.00. The record reflects that Janet maintained approximately $1 million from the award and used the funds to set up the Trust.
Janet testified that she is only permitted to use Trust distributions for educational or medical expenses. Thus, any funds disbursed for purposes unrelated to the same would require Janet to reimburse the
Following allegations of infidelity, the parties separated and Janet filed for divorce. By that time, Michael had already moved out of the marital home and into an apartment in Texas with his mistress. While the parties were separated, Michael continued to pay the mortgage, taxes and insurance on the properties, with the exception of the Alabama lot. Janet covered the maintenance and repair expenses, and she received the rental income generated therefrom. The parties agreed to divide the real properties as marital assets, and both claimed credits for their respective payments.
The major issues in the trial court were Janet's right to alimony, the equitable distribution of assets, and Michael's dissipation of the same. Specifically, Janet argued that Michael dissipated marital assets on, among other things, his mistress and her son and failed to provide for the family — causing Janet to exhaust her personal funds. Janet also claimed that, due to the long-term nature of the marriage and the disparity between the parties' income, she was entitled to permanent alimony. Michael, on the other hand, contended Janet voluntarily depleted her personal income to support their adult children and spent more than reasonably required to maintain the marital home. Michael further argued that his forced retirement, and the equitable distribution of his pension funds, placed both parties in the same financial position and eliminated the need for alimony.
Following a bench trial, the court found that Janet was financially able to meet her needs and necessities, and therefore, denied her request for alimony. The court further found that Michael had not dissipated the Charles Schwab Account during the pendency of the divorce proceedings and that the contributions made by Michael, and Delta, to the Delta Retirement Account during the separation were nonmarital. Additionally, the court determined that the value of the furniture that Michael purchased for the former marital home was $30,000, and awarded Michael a credit for the same. Finally, the court determined that the USAA Subscriber Account was not subject to equitable distribution. This appeal followed.
"A trial court's decision to either award or deny alimony will not be disturbed on appeal unless the record demonstrates that the trial court abused its discretion."
The issues on appeal are whether the trial court erred in: (1) denying Janet permanent alimony, (2) finding that Michael did not dissipate the Charles Schwab Account, (3) valuing the Delta Retirement account as of the date the parties filed for divorce, (4) relying on Michael's testimony to award him a credit for furniture, and (5) failing to distribute the USAA Subscriber's Account between the parties.
Janet contends that the court abused its discretion in denying her alimony. Consistent with the record evidence and for the following reasons, we find no error.
"In a proceeding for dissolution of marriage, the court may grant alimony to either party...." § 61.08(1), Fla. Stat. (2016). "In determining whether to award
"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. (2016). In the case of a long-term marriage, the courts recognize an initial rebuttable presumption in favor of awarding permanent alimony.
Here, the trial court acknowledged that this was a long-term marriage and began its analysis under the assumption that Janet was entitled to permanent alimony.
While Janet testified that she had restricted access to the Trust's funds, and that the Trust loaned her money during the separation to support herself, she failed to provide any supporting documents and her testimony was inconsistent and incomplete. In fact, the trial court found her testimony to be "untenable." Consistent with the record, we find no abuse of discretion, and accordingly, we do not disturb the trial court's denial of alimony.
Marital assets should be distributed equally between the parties, unless there is a justification, such as dissipation, for an unequal distribution. § 61.075(1)(a)-(j), Fla. Stat. (2016);
Here, Janet alleges that the Schwab Account constituted marital funds and Michael dissipated the same. Michael admits to using the funds in the Schwab Account to pay for his living expenses while the parties were separated. These expenses include, among others, attorney's fees, federal income taxes, and furniture and household goods for his new house. The trial court found that having utilized his Delta salary to pay the mortgages on the rental properties, Michael's only source of funds to support himself was the Schwab Account. Under these circumstances, Michael justifiably used the Schwab Account to pay for his living expenses.
Along the same lines, we find no prejudice to Janet in the trial court's denial of her request to depose Michael's mistress as to the Schwab Account. The record shows that Janet possessed a detailed accounting of Michael's withdrawals from the Schwab Account. Therefore, the mistress' testimony would not have revealed additional information about Michael's spending.
As noted above, the trial court valued the Delta Retirement account as of the day the parties filed for divorce, over Janet's objection. Upon review, we find no error.
Courts have broad discretion to value marital assets using a date that is fair and equitable under the circumstances. § 61.075(7), Fla. Stat. (2016);
Here, the pre-filing contributions to the Delta Retirement account were marital assets because the contributions were attributable to Janet's efforts to advance Michael's career. Conversely, the post-filing contributions were nonmarital because Michael earned the contributions by continuing to work for Delta during the nine years of protracted divorce proceedings while the parties lived apart. For these reasons, we find that the trial court properly utilized the date of the filing to value the Delta Retirement account.
As previously noted, Michael continued to make the mortgage payments on the parties' two rental properties after Janet filed for divorce, while Janet retained the rental income
"Reimbursement or credit for a party's payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances."
Michael received a credit for furniture that he purchased for the marital home. Janet argued that the trial court should have reduced the furniture's value based on the value of furniture that Michael took possession of during the separation. "A trial judge has no duty ... to make findings of value if the parties have not presented any evidence on that issue."
Here, Janet failed to produce a figure that the trial court could have relied on to reduce the value of the furniture, and the trial court could not have reduced the value based on its own speculation.
During their marriage, the parties insured their vehicles with USAA and Michael paid the insurance premiums. At all times relevant, their USAA Subscriber account was funded with distributions from said automobile insurance policy. In this connection, USAA makes yearly profit distributions into the Subscriber's account based on the premiums collected and the claims paid. Here, Michael testified that he had no access to the funds and that the proceeds would simply pass to his estate upon his death. Michael conceded that a portion of the account constituted marital property. However, when Janet requested equitable distribution of same, Michael argued that the account was a contingent asset and thus, not subject to equitable distribution. The trial court agreed.
Upon review, we find that the trial court erred by failing to equitably distribute the account funds. The fact that the account funds could be distributed upon Michael's death, does not change their nature as a marital asset. Janet should have received a credit for her marital portion of the account. Accordingly, we remand this matter for the equitable distribution of the account consistent with this opinion. The
Affirmed in part; reversed in part.