Serbousek v. Lucas ( 2016 )

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JANET LEE SERBOUSEK f/k/a JANET LEE LUCAS,
Appellant,
v. Case No. 5D14-3444
OWEN DOUGLAS LUCAS,
Appellee.
________________________________/
Opinion filed May 20, 2016
Appeal from the Circuit Court
for Volusia County,
David B. Beck, Senior Judge.
Corrine A. Bylund, of Bylund Law,
PLLC, Jacksonville, for Appellant.
Armistead W. Ellis, Jr., of Armistead W.
Ellis, Jr., P.A., Daytona Beach, for
Appellee.
COHEN, J.
Janet Lucas, n/k/a Janet Serbousek, (“Former Wife”) appeals the final judgment
dissolving her marriage of over thirty-eight years to Owen Lucas (“Former Husband”).
Former Wife raises four issues on appeal: error in the equitable distribution, error in the
amount of permanent periodic alimony awarded, failure to award her retroactive
alimony, and failure to award her attorney’s fees. We affirm in part and reverse in part.
The parties were married in 1975 and had two children, both of whom are now
adults. During the marriage, Former Wife was the primary caretaker for the children
while Former Husband worked as a general contractor. Former Wife also assisted in the
business by keeping the company’s books and cleaning at construction projects. The
couple’s business revenue ebbed and flowed, with much of the company’s workload
attributable to Former Wife’s family. The parties agreed that they ran significant
personal expenses through the business accounts. Former Husband continued this
practice after the separation.
The main asset subject to equitable distribution was the marital home. The
parties also owned two other lots that they financed by borrowing against the marital
residence. Thus, although the home was valued at only $315,000, it secured over
$330,000 of debt at the time of the dissolution. 1 This debt burden was exacerbated by
Former Husband’s neglect in failing to respond to the call-in of a line of credit secured
by the home, which prevented favorable refinancing. As a result of this neglect, the
payments on that line of credit increased from less than $250 per month to over $2,500
per month.
The three-day trial was held over the course of three months. Each side
presented an accounting expert. While the experts differed in methodology, they
ultimately reached relatively consistent opinions that there was approximately $80,000
per year of business income. To say that the trial judge found neither party credible as a
witness would be an understatement. Former Husband was vague in answering some
questions and claimed not to remember the answers to many others. Based upon hand-
written notes and excerpts from the company’s accounting records, Former Wife
estimated more than $540,000 in business revenue was kept “off the books” over the
1 The appraisals on the two other lots showed values of $90,000 and $70,000,
respectively. There is no record evidence of any debt on these lots.
2
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
PALMER and WALLIS, JJ., concur.
7
On remand, the trial court should also address two other issues related to the
equitable distribution. First, Former Husband concedes that the trial court incorrectly
valued Former Wife’s IRA account; the distribution should reflect the actual value of the
account. 3 Second, the trial court distributed the former couple’s credit-card debts as
marital debt without a finding on the value thereof. 4 The final judgment implies that the
credit card debts were distributed equally, 5 but without a valuation of this debt, we
cannot determine whether the trial court effectuated its stated intent to distribute the
marital assets equally. On remand, the trial court should correct and clarify its factual
findings on these issues and adjust the equitable distribution accordingly.
Former Wife further argues that the trial court erred in denying her claim for
attorney’s fees. This is also an area in which trial courts have broad discretion. The
purpose of an award of attorney’s fees in a dissolution case is to “ensure[] that both
parties are able to retain competent legal counsel.” Kouzine v. Kouzine, 44 So. 3d 213,
215 (Fla. 5th DCA 2010). The trial court must determine “whether one spouse has a
need for such fees and the other has the ability to pay them.” Id. at 215-16 (citing Lovell
v. Lovell, 14 So. 3d 1111, 1116-17 (Fla. 5th DCA 2009)). Beyond need and ability to
pay, the court may also consider other factors including “the scope and history of the
3 The trial court valued the IRA at $14,000 rather than the actual value of
$10,000.
4 The parties contributed to this omission by failing to present evidence on the
account balances at the time of trial. They cannot expect the trial court to conjure these
amounts.
5 The trial court’s order states: “[T]he Court finds that an equal division for the
majority of the marital assets and liabilities is warranted unless stated otherwise for a
specific asset or debt.” No unequal distribution of the credit card debt is mentioned, and
the court found the bills had been fully paid on an ongoing basis from marital assets.
4
litigation; the duration of the litigation; the merits of the respective positions; [and]
whether the litigation is brought or maintained primarily to harass (or whether a defense
is raised mainly to frustrate or stall).” Dybalski v. Dybalski, 108 So. 3d 736, 738 (Fla. 5th
DCA 2013) (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997)).
Former Wife argues she is entitled to attorney’s fees because Former Husband
held all the earning power while her income was limited to $200, and the debt burden
for the marital property left her unable to afford her attorney’s fees. The trial court’s
order discussed the “merits of the respective positions,” Former Wife’s request for more
in alimony than Former Husband earned, and the trial court’s view that Former Wife’s
“incredulity and audacity” were “staggering.” The order further explained that the
application of the factors outlined in Rosen suggested that Former Wife should pay
Former Husband’s fees. See McAliley v. McAliley, 704 So. 2d 611, 613 (Fla. 4th DCA
1997) (“Attorney's fees may be awarded as a punitive measure where a spouse in a
domestic relations case institutes frivolous non-meritorious claims that contribute to
unnecessary legal expenses, costs and a delay of the proceedings.” (citing Crowley v.
Crowley, 678 So. 2d 435, 439 (Fla. 4th DCA 1996))).
The trial court found, however, that Former Wife did not have the ability to pay.
Because the trial court divided the marital assets roughly equally between the parties
and awarded Former Wife alimony to equalize their financial positions, we find no abuse
of discretion in denying Former Wife’s request for attorney’s fees. See Matajek v.
Skowronska, 927 So. 2d 981, 988 (Fla. 5th DCA 2006) (holding that “an award of
attorney's fees is inappropriate if the parties are left in relatively equal financial
5
circumstances after the dissolution” (citing Brock v. Brock, 690 So. 2d 737, 742 (Fla. 5th
DCA 1997))).
The trial court’s frustration was both apparent and understandable; neither party
was particularly veracious. The trial court was especially vexed by Former Wife’s
testimony that the couple’s tax returns showed minimal income because they ran a
great deal of personal expenses through the business and had significant unreported
income, but Former Husband was not without fault. Both parties admitted to using the
business to pay personal expenses—taking liberties with their tax returns. Former
Husband’s testimony was evasive, and the trial court found that he was “not completely
candid.” Former Husband’s neglect also resulted in a significant increase in the
mortgage payment. Yet the trial court’s final judgment referenced only Former Wife’s
“admitted criminality,” presumably for either lying on her tax returns about the
unreported income or lying in court about the existence of unreported income. If the trial
court felt the need to oppugn the character of the litigants, both were worthy of the
effort.
The final judgment reflects the trial court’s frustration with the parties. The court
was forced to either accept Former Wife’s testimony as to such income or reject it and
base its ruling on the testimony from the experts, neither of whom found evidence to
support the amounts asserted by Former Wife. The court chose the latter. Ultimately,
the broad discretion afforded the trial court in these matters compels us to affirm the
award of $2,000 in permanent periodic alimony and the denial of attorney’s fees. We
remand for further consideration of Former Wife’s claim for retroactive alimony and for
correction of the equitable distribution.
6
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
PALMER and WALLIS, JJ., concur.
7