Family law case summaries for opinions filed July 3, 2013

CHILD SUPPORT-PRIVATE SCHOOL TUITION
In Busciglio v. Busciglio, 30 FLW D1449a (Fl.a 2d DCA) opinion filed July 3, 2013, 2D11-6481, the final judgement required the Mother to pay for private school expenses. The children actually attended a charter school, which was A public school. The DCA remanded on this issue to correctly reflect the children attended public school, but added the Court could continue to require the Mother be responsible for all expenses imposed by any school the parents choose that the children attend.
That portion of the final judgment requiring the Wife to carry life insurance with the Husabnd and children as equal beneficiaries was r:ife insurance was remanded to clarify whether the obligation was to secure alimony or child support and adding that without special circumstances, it is error to require a spouse to maintian life insurance for purposes of securing an alimony award.
Of note, Judge Altenbrand's concurring opinion (posted below in it's entirety) highlighted an argument for converting permanent alimony into durational alimony in the cases where durational would have been appropriate, but did not exist at the time of the divorce. He also makes a compelling argument against a life insurance policy requirement in a permanent alimony case.
ALTENBERND, Judge, Concurring. I fully concur in the opinion but write to recognize that this is a difficult case in which to establish alimony. The parties were married in their early twenties. The husband earned an engineering degree and, undoubtedly, helped support his wife through medical school. Now in their mid-forties, she is a successful physician and he is working in a fire department attempting to become a paramedic. Although durational alimony might now be a better option in such a context involving healthy, well-educated parties, it was not available when this action was resolved. The award of more than $47,000 per year in taxable permanent alimony to the husband seems high to me, but it is not an abuse of discretion under the applicable law and the facts of this case given the disparity of income. Twenty years ago, I first suggested that the legislature consider statutes establishing the law applicable to life insurance in divorce proceedings. Kowalczyk v. Kowalczyk, 627 So. 2d 591, 591 (Fla. 2d DCA1993) (Altenbernd, J., concurring); see also Kearley v. Kearley, 745 So. 2d 987, 989 (Fla. 2d DCA 1999) (Altenbernd, J., concurring). The situation remains much the same. See generally Jani Maurer, Use and Disposition of Life Insurance in Dissolution of Marriage, 16 Barry L. Rev. 57 (Spring 2011). Term life insurance that has already been purchased during a marriage can rather easily be used to secure unpaid child support or alimony in the event of the death of the payor ex-spouse during the first decade following the divorce. Such a requirement, however, does create a complex designation of beneficiary because a portion of the proceeds may need to be payable as support, while the remainder of the proceeds are given to a beneficiary selected by the payor ex-spouse. Even in the context of this simple use of life insurance, the price of term life insurance can become prohibitive as parties age. Life insurance benefits that are payable to adult children or an ex-spouse when no alimony or child support is due create more difficult issues. The annual premiums paid by the payor ex-spouse are arguably alimony payments used to create a savings component. See Mallard v. Mallard, 771 So. 2d 1138, 1141 (Fla. 2000) (barring alimony from including a savings component). In this case, for example, if the ex-wife dies at age sixty-five, under the language of the judgment, her adult children and their father will collectively receive a million dollars largely unrelated to their needs. These payments are a disincentive for the benefiting ex-spouses to remarry and can create what is known as a "moral hazard" affecting the insurability of the payor ex-spouse. The cash surrender value of whole life insurance creates additional issues. It has proven virtually impossible for the appellate courts to create common law rules addressing the array of issues created by life insurance provisions in final judgments of dissolution. Family law attorneys and circuit court judges need some basic, default rules that they can consistently apply in all but the most complex cases. A fair and balanced statute written by experts in the field would benefit all involved.
SETTLEMENT AGREEMENTS
In Wrieden v. Wrieden, 38FLW D1457 (Fla. 4th DCA) opinion filed July 3, 2013, the DCA found error and reversed the trial court's order accepting the Magistrate's recommendations that the Former Husband pay half of the Former wife's rent at a location that differed from the location agreed to in the marital settlement agreement. The MSA required the FH to share equally in the rent on the FW's residence located at a specific address. At hearing the FW provided three different leases and the Magistrate recommended the FH pay for both half the rent at the location listed in the MSA and also pay half the rent at another location. The FH filed exceptions, which were denied. Using contract law, the opinion stated "where the terms of a MSA are clear and unambiguous, the parties' intent must be gleaned from the four corners of the document. It is only when a term is ambigupus or unclear that the trial court may consider extrinsic evidence as well as the parties' interpretation of the contract to explain or clarify the language." Jones v. Treasure, 984 So. 2d 634, 636 (Fla. 4th DCA 2008)(quoting Levitt v. Levitt, 699 So. 2d 755, 756 (fla. 4th DCA 1997)). Becasue the MSA was unambigupous in requiring the FH to pay half the rent at a specific location, the trial court erred in accepting the Magistrate's recommendations that the FH pay one half the rent for another location. The case was remanded for the trial court to reduce the amount of the unpaid rent owed by the FH to the amount of his unpaid share of rent at he location listed in the parties. MSA.

EQUITABLE DISTRIBUTION





Interesting brand new case on unequal distribution of assets.
In Nassirou v. Nassirou, 38 FLW D1524 (Fla. 1st DCA) opinion filed July 15, 2013 1D12-3804, the DCA held that the trial court’s award of his entire 401k to the as a sanction for his domestic violence in front of the children and his failure to pay private school tuition was error. A Court cannot award unequal distribution of assets based on marital misconduct. The case was remanded with directions for the court to value the 401K, account for the private school tuition amount and equally distribute the remainder of the 401K to the parties.