Posner v. Posner

Citations: 39 So. 3d 411; 2010 Fla. App. LEXIS 9117; 2010 WL 2509134Docket: 4D08-4755

Court: District Court of Appeal of Florida; June 23, 2010; Florida; State Appellate Court

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In the case of Charles Posner v. Toni A. Posner, the Florida District Court of Appeal reaffirmed its previous reversal of monetary awards in a dissolution of marriage case. The husband, Charles Posner, contested the trial court's decisions to impute income from his parents, assign him responsibility for his wife's non-marital credit card debt, and grant her an extended 71-year repayment period for equitable distribution. The court upheld the imputation of income but reversed the credit card liability assignment and the repayment terms.

The original final judgment indicated that the wife had net non-marital assets exceeding $417,000, while the husband had just over $98,000, with total marital assets of $55,000. The division of these assets resulted in the husband facing significant financial strain. Upon remand, the trial court vacated the lump sum alimony award to the wife but erroneously assigned her non-marital credit card debt to the husband, adjusting the equalizing payment to $85,413, payable at $100 monthly. The court also reduced the husband's bridge-the-gap alimony from $2,500 to $1,000 and set child support at $1,648, incorporating $1,400 imputed income from his parents' home.

The husband appealed again, arguing that the trial court did not correctly follow the appellate court's prior decision regarding income imputation. The appellate court clarified that the issue of imputed income had not been conclusively decided in the first appeal and allowed for reconsideration. The ruling emphasized the need for the trial court to re-evaluate the parties' financial situations comprehensively, in light of all monetary awards being reversed.

The trial court determined that the husband had an imputed income of $1,400 per month for child support, based on the value of living rent-free in a home owned by his parents. Although the parents had previously provided rent for an apartment, they testified that they did not intend to continue such financial assistance. However, the husband’s mother indicated she would cover essential living expenses. A real estate appraiser valued the home’s rental at $1,800 to $1,900, but it was not listed for sale at the time of the trial, despite the mother’s claim of an intent to sell. The court ruled that while larger sums from the parents could not be imputed due to a lack of intent for ongoing support, the rental value constituted an in-kind payment under Florida Statutes section 61.30(2)(a)13, which reduces living expenses. The court found no abuse of discretion in attributing this rental value as income to the husband for child support purposes, as the parents had consistently provided support and the mother indicated ongoing assistance. 

Regarding credit for a non-marital portion of credit card liability, the husband argued the court erred by treating it as marital liability. Previous rulings indicated this was an error, yet on remand, the court failed to correct it. The trial court’s original assessment showed the husband’s net assets as negative $51,800 and the wife's as $119,026, leading to a total asset difference of $170,826. To equalize this distribution, the husband is entitled to an equalizing payment of $85,413 from the wife.

The court's calculation initially omitted the wife's $12,214 non-marital credit card liability, which the husband was obligated to pay. Following previous directives, this amount must be added to the wife's equalizing payment, increasing the total to $97,627 ($85,413 + $12,214). The trial court mandated the wife to repay this amount at $100 per month, a plan that would take over 70 years to complete and effectively deprive the husband of assets for his lifetime, which constitutes an abuse of discretion. The wife possesses nearly $500,000 in assets, including cash and interests in development and real estate companies, indicating her ability to repay more than $100 monthly. The repayment plan should consider potential future changes in the wife's financial situation and should not be solely based on her current income. The court reversed the original award, instructing an increase in the equalizing payment and requiring a revised repayment strategy that allows for quicker repayment. Possible methods include a shorter payout period, lump sum repayments, or repayment from the sale of the wife's assets. The court should retain jurisdiction over repayment terms but not alter the original equalizing payment amount. The award of child support to the wife was affirmed, while the equitable distribution payment was reversed with specific compliance directions, rejecting the husband's other claims of excessive awards.