LUCI ZUBRICKY v. MICHAEL ZUBRICKY , 273 So. 3d 217 ( 2019 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LUCI ZUBRICKY,
Appellant,
v.
MICHAEL ZUBRICKY,
Appellee.
No. 4D18-2196
[May 15, 2019]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Dan L. Vaughn, Judge; L.T. Case No.
472014DR000275.
Stacy N. Beaulieu-Fawcett and Denise C. Desmond of Beaulieu-Fawcett
Law Group, P.A., Delray Beach, for appellant.
No appearance for appellee.
KUNTZ, J.
The Former Wife appeals the circuit court’s final judgment of
dissolution of marriage. We address two issues raised on appeal. First,
we affirm the circuit court’s order denying the Former Wife’s request for
alimony. Second, we reverse the court’s order requiring the Former Wife
to reimburse the Former Husband half the cost of a vehicle. We affirm the
remaining issues without discussion.
Background
One day before petitioning for dissolution of marriage, the Former
Husband and Former Wife signed a marital settlement agreement. The
agreement provided, among other things, that the Former Husband would:
pay the Former Wife $1,600 a month, pay $550 a month for her car, and
give her $125,000 out of his Thrift Savings Plan (TSP). He was to retain
the remainder of the TSP. This marital settlement agreement was later
specifically incorporated into the final judgment of dissolution.
Two months after filing the petition for dissolution, the Former
Husband and Former Wife took $40,425 out of their bank account to
purchase the Former Wife a car. The Former Husband testified it was joint
money, and the Former Wife originally testified the money was from her
share of the TSP. But the Former Wife later testified at two points that the
Former Husband gave her the $40,425 rather than pay the $550 monthly
car payment.
Weeks later, the Former Husband gave the Former Wife $134,330.48
from the TSP distribution. This amount is not equal to the amount stated
in the pre-suit marital settlement agreement, $125,000. The Former Wife
testified that the Former Husband gave her additional money from the TSP
because he thought she deserved more.
In December 2015, the court entered an order on the Former Wife’s
motion for temporary relief. The court incorporated the temporary relief
order into the final judgment. This order included the date of the marriage
and income information for the Former Wife and Former Husband. It also
made a finding that the Former Wife had been living off of money from a
live-in paramour. The court found the Former Wife was entitled to $760 a
month from the Former Husband’s pension, retroactive to January 1,
2015. The retroactive payment amount was set at $158, bringing the total
monthly payment from the Former Husband to the Former Wife to $918.
Shortly before trial, the Former Husband and Former Wife signed a
partial marital settlement agreement. That document states that the
Former Husband “cashed out” the TSP and the “parties divided the marital
contents of said plan.” That partial agreement also noted the areas of
disagreement left for the court to decide. Those areas generally included
alimony, reimbursement of the funds used for the car, and cross-claims
for attorney’s fees.
The court held a non-jury trial on the areas of disagreement. Both the
Former Wife and Former Husband testified. At trial, the Former Wife
sought enforcement of the pre-suit marital settlement agreement, and the
Former Husband argued he could no longer comply with the terms of that
agreement.
After an extended delay, the court issued its final judgment. The court
adopted the findings of fact and conclusions of law from the temporary
relief order. But the court was imprecise with language and numbers. For
example, the court found the Former Husband was paying $850 ($700
plus $150) a month to the Former Wife from his pension—when the
number was $918. The court also suggested the parties “equally”
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distributed the TSP, but the distribution was in an agreed amount, not an
equal amount. The court then stated both parties were asking it to save
them from their own mistakes.
Finally, the court declined to award the Former Wife alimony. It found
the Former Wife had no need for alimony and that the Former Husband
had no ability to pay it. The court also found the Former Wife cohabited
with the live-in paramour, making her ineligible for alimony under section
61.14, Florida Statutes (2014).
Analysis
We address two arguments raised on appeal. First, the Former Wife
argues the court erred when it declined to award her alimony. Second, the
Former Wife argues the court erred when it required her to reimburse the
Former Husband for half of a car purchased for her use. We affirm on the
first point and reverse on the second.
i. The Court Did Not Err in Failing to Award Alimony
The Former Wife argues the court erred in applying section 61.14,
arguing it does not apply unless a party is seeking to modify a judgment.
But before addressing section 61.14, the court specifically found the
Former Wife did not have the need for alimony and that the Former
Husband could not pay it.
This conclusion was based, in part, on the fact that the only income of
the Former Wife and Former Husband is social security and the Former
Husband’s pension. 1 The court also found that the parties distributed a
large sum of money from the TSP in accordance with the pre-suit marital
settlement agreement and that “the parties should have been financially
secure going forward with their lives” as a result of the distribution.
The pension is being distributed in accordance with the earlier
temporary relief order, an order specifically incorporated into the final
judgment. In the temporary relief order, the court found that the marital
portion of the Former Husband’s pension was 71%. The court split the
marital portion of the Former Husband’s pension evenly, awarding both
parties 30.5%. As a result, even after entry of the final judgment, the
marital portion of the pension is being distributed evenly. That also means
1 The court found that because the Former Husband was a federal employee not required
to pay social security taxes, the Former Husband’s social security payment is a non-
marital asset. The Former Wife was also receiving monthly payments from social security.
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that all the Former Husband’s marital income is being distributed evenly.
Based on these findings, we cannot conclude the court abused its
discretion when it declined to award alimony.
Even if the court had not found that the Former Wife is not entitled to
alimony, we question her argument that the court erred in applying section
61.14. The Former Wife argues section 61.14 applies only to amend a
judgment. As a result, she argues, section 61.14 could not be applied to
amend the marital settlement agreement that had not yet been
incorporated into a final judgment. But, years ago, the Florida Supreme
Court rejected a similar argument. See Frizzell v. Bartley, 372 So. 2d 1371,
1372 (Fla. 1979) (Section 61.14 “allows modification of the settlement
agreement even though it was not made part of the final decree.”).
The court found that the Former Wife lacked a need for alimony and
that the Former Husband could not pay alimony. Next, the court found
the Former Wife was precluded from receiving alimony because of her
“cohabitation with her paramour for over one year and the money she
received from him.” We cannot conclude the court abused its discretion
in reaching these conclusions.
ii. The Court Erred When It Required the Former Wife to Repay the
Former Husband for the Purchase of a Vehicle
Next, the Former Wife argues the court erred when it required her to
repay the Former Husband one-half the cost of a vehicle purchased with
funds from a joint bank account. We agree and reverse.
The pre-suit marital settlement agreement incorporated into the final
judgment required the Former Husband to pay $550 a month for the
Former Wife’s vehicle. She testified that rather than make a monthly
payment, they purchased her a car with joint money. Consistent with that
testimony, the Former Husband testified that he stopped making the
monthly car payment when they purchased the vehicle for the Former
Wife.
The court found that the vehicle was purchased with joint funds. As a
result, the court required the Former Wife to reimburse the Former
Husband for half the price paid for the vehicle. We do not find the fact
that marital assets were used to purchase the vehicle to be dispositive.
The marital settlement agreement required the Former Husband to make
a monthly payment for the Former Wife’s vehicle. Instead, the parties
purchased a vehicle. It is inconsistent with the marital settlement
agreement, and the testimony of the parties, to require the Former Wife to
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repay funds to the Former Husband relating to the vehicle. As a result,
we reverse that portion of the final judgment.
Conclusion
We affirm the court’s order declining to award alimony to the Former
Wife. We specifically note our understanding that the Former Husband
remains obligated to evenly distribute the portion of his pension the court
found to be a marital asset. We reverse the portion of the court’s judgment
requiring the Former Wife to repay the Former Husband for one-half the
cost of a vehicle. Finally, we affirm the remainder of the issues raised on
appeal without further comment.
Affirmed in part and reversed in part.
GERBER, C.J., and TAYLOR, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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