Feger v. Feger
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
WILLIAM FEGER,
)
)
Appellant,
)
v.
)
)
NANCY FEGER,
)
)
Appellee.
)
__________________________________)
Case No. 2D02-1265
Opinion filed May 30, 2003.
Appeal from the Circuit Court for Lee
County; James H. Seals, Judge.
Robert L. Donald of Law Office of Robert L.
Donald, Fort Myers, for Appellant.
Debra A. Rowe, Fort Myers, for Appellee.
PER CURIAM.
William Feger appeals the final judgment dissolving his marriage to Nancy
Feger and challenges the distribution of marital assets, the denial of his request for
alimony, the denial of his request for all of his attorney’s fees, and the award to the
mother of sole authority to make decisions concerning the minor child. Nancy Feger
cross-appeals the court’s denial of her special equity in the home, the failure to award
her attorney’s fees, the child support award, and the denial of her motion to compel her
husband to appear in person at the final hearing. We affirm the trial court's ruling giving
Ms. Feger unilateral authority to make decisions concerning the daughter and the
finding that no alimony is due to Mr. Feger, but we must reverse the equitable
distribution portion of the final judgment because of the court’s failure to articulate the
standards it used to make its findings. We affirm the cross-appeal.
The parties were married on June 16, 1988, in New York, and separated
on September 19, 1998. Their daughter Arianna was born on November 10, 1989. At
the inception of their marriage Ms. Feger worked at a local hospital as a registered
nurse; Mr. Feger worked as a production manager. Two years later, when Mr. Feger
was only forty-seven years old, he suffered a severe stroke that rendered him severely
disabled. Initially, Mr. Feger could neither speak nor walk, but now he walks with
braces and possesses minimal speech, but he suffers from receptive and expressive
aphasia. At trial, Mr. Feger's physician characterized his recovery as good but not
excellent. Mr. Feger ’s speech problems, particularly his difficulty understanding and
communicating with others, presented substantial obstacles in the litigation of this
matter.
After the stroke, Ms. Feger quit her job to care for her husband, and in
1991 she sold the family home, which was her sole property acquired from a previous
marriage, and relocated the family to Cape Coral. The Florida home was acquired,
titled, and encumbered in the names of both parties.
Financial support for the family came from multiple sources. Ms. Feger
expended funds generated from the sale of her former nonmarital home. Mr. Feger
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received social security disability income (SSDI) of $1205 per month and a disability
payment from his employer's ERISA plan of $1017 monthly. Arianna also receives a
social security payment. Ms. Feger returned to work in 1995. By 1998 she was earning
more than $46,000 annually and reported an income of approximately $48,000 in 1999.
At trial, she testified that her income for the year 2000 was $40,000.
The parties' separation in 1998 occurred when Mr. Feger suddenly and
without warning left the marital home with his sister and relocated to Utah. After the
separation, Ms. Feger refinanced the marital home, which before refinancing was
valued at $300,000 subject to a $91,000 mortgage. Following refinancing, the
encumbrance was increased by an additional $120,000.
The court entered a final judgment of dissolution of marriage on July 18,
2001, and amended the judgment pursuant to an order on rehearing entered on
September 14, 2001. In pertinent part these orders resolved the issues between the
parties as follows:
1. Equitable Distribution. The trial court found that Ms. Feger failed to
overcome the presumption that certain jointly owned property acquired during the
marriage with her premarital funds was not marital property. Accordingly, the trial court
began its equitable distribution plan with the premise that the distribution should be
equal unless there was a justification for an unequal distribution. Following an analysis
of some of the factors set out in section 61.075(1), Florida Statutes (1997), the court
awarded Mr. Feger marital assets valued at approximately $48,000. Ms. Feger
received marital assets valued at more than $33,000. In the original final judgment Ms.
Feger received the home as a form of child support. In the judgment on rehearing,
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however, the court awarded her the marital home and its contents as part of its
equitable distribution scheme without identifying any further justification for the uneven
split of the marital assets.
2. Alimony. No spousal support was awarded to either party. The court
noted that although it did not specifically discuss the factors set out in section 61.08, it
had made adequate findings throughout the final judgment to formulate a basis for its
decision to award no permanent periodic alimony.
3. Attorney’s Fees. In its initial judgment the court declined to award Mr.
Feger fees and instead determined that each party should be required to pay his or her
own fees and costs. However, the trial court expressed concern over the legal positions
Mr. Feger advanced at trial, finding his litigation strategy had Rosen1 implications. On
rehearing, the trial court ordered Ms. Feger to pay $4775.37 toward Mr. Feger 's court
costs and attorney's fees in an attempt to help equalize the distribution of assets.
4. Child Support. In the first version of the final judgment, the court
ordered no monetary child support but ordered Mr. Feger to relinquish his interest in the
marital home to Ms. Feger as child support. On rehearing, however, the trial court
found that Mr. Feger 's child support obligation was totally subsumed within the SSDI
payments allotted to the child.
EQUITABLE DISTRIBUTION
In its judgment the court recognized that section 61.075(1) requires the
trial court to distribute marital assets and liabilities between the parties beginning with
1
Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) (holding that relevant factors in
determining attorney’s fee awards in dissolution cases include the scope, history, and
duration of the litigation, as well as the merits of each party’s position).
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the premise that an equal distribution should occur. However, where a justification is
shown, a trial court may make an unequal distribution. In making an unequal
distribution ?a trial judge must ensure that neither spouse passes automatically from
misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of
the circumstances, one spouse should not be 'shortchanged.'” Canakaris v. Canakaris,
382 So. 2d 1197, 1204 (Fla. 1980) (citing Brown v. Brown, 300 So. 2d 719 (Fla. 1st
DCA 1974)). An equitable distribution award is reviewed under the abuse of discretion
standard. Canakaris, 382 So. 2d at 1203; Krafchuk v. Krafchuk, 804 So. 2d 376, 380
(Fla. 4th DCA 2001).
The trial court found that in the time between Mr. Feger's stroke and the
parties' separation, Ms. Feger expended extraordinary efforts and energy in her roles of
wife, mother, therapist, and breadwinner. The final judgment and the subsequent order,
however, fail to identify that factor or any other particular factor as a justification for an
unequal distribution. A court must provide a legally sufficient factual basis for its
unequal distribution of marital assets. Carr v. Carr, 779 So. 2d 311, 312 (Fla. 2d DCA
1999); Harreld v. Harreld, 682 So. 2d 635, 636 (Fla. 2d DCA 1996). In Harreld, 682 So.
2d at 636, this court noted that although the trial court provided a finding that could be
read as an explanation for an unequal distribution, the court did not specifically state
this was the reason it was distributing the marital assets unequally. Here, as in Carr,
779 So. 2d at 312, the trial court erred by awarding the marital home, a major asset,
without making a specific finding of fact to justify the unequal distribution. Therefore, we
must reverse that portion of the final judgment and remand for the trial court to make the
required specific findings.
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In reversing the equitable distribution scheme, we are aware that the trial
judge obviously found it desirable for Ms. Feger to remain in the home with the minor
child. Our opinion should not be construed as foreclosing that option when the court
revisits its findings on remand. Rather, the court must specifically address the facts
pertinent to each statutory consideration to support its decision to distribute the marital
assets in an unbalanced manner, if that should be the trial court’s ultimate
determination. Although we take no position as to whether the marital assets should be
equally or unequally divided, this may be the kind of situation discussed in Krafchuk,
804 So. 2d at 380, where justifications exist for disparity in the distribution. As in
Krafchuk, the trial court could find that Ms. Feger made significantly greater
contributions to the marriage based on her premarital financial situation and her
postmarital physical, emotional, and financial sacrifices in the care of her husband,
which helped him achieve very good results from his rehabilitation program.
ALIMONY
Section 61.08 authorizes a trial court to award permanent alimony. In
doing so, a trial court is required to consider the factors set forth in section 61.08(2) and
to make findings of fact. See Staton v. Staton, 710 So. 2d 744, 745 (Fla. 2d DCA
1998).
In its order on rehearing the trial court considered the significant alteration
of the parties' relationship caused by Mr. Feger's stroke and his precipitous and
mysterious relocation, as well as the number of years of intact marriage. § 61.08(2);
Krafchuk, 804 So. 2d at 379-80. The court also acknowledged Ms. Feger’s significant
contributions to the home and to her husband’s care. Of most importance, however
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was the trial court’s finding that Mr. Feger failed to present any evidence that he needed
alimony. Because there is no basis in the record for us to overturn the court’s findings,
we affirm the decision not to award permanent alimony to Mr. Feger.
ATTORNEY’S FEES AND COSTS
In its order on motion for rehearing, the trial court awarded Mr. Feger his
costs and a portion of his attorney’s fees. A trial court is authorized by section 61.16(1)
to make such an award after considering the financial resources of both parties. Based
upon a review of the parties' relative financial conditions, a trial court may award a
portion of the fee amount claimed. Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA
2000). Further, as noted by the trial court, the Rosen case, 696 So. 2d at 700, provides
additional factors for the court’s consideration.
With the exception of the trial court's conclusion that there was little merit
in trying the equitable distribution scheme, we find sufficient articulated reasons to
support the trial court's award to Mr. Feger of $4775.37 for costs and attorney fees.
Upon remand, after determining the equitable distribution of marital assets, the trial
court may adjust this award upward or make no change.
CHILD SUPPORT AND SPECIAL EQUITY
We affirm, without discussion, the child support award and the denial of
Ms. Feger's claim for special equity, as raised in her cross-appeal.
CONCLUSION
We reiterate that the major deficiency in the final judgment is the court’s
failure to articulate a specific factual and statutory basis for the uneven equitable
distribution award, rendering appellate review impossible. On remand, the trial court
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may revisit the final judgment without holding further hearings, unless the court finds
that it cannot comply with the statute without taking additional evidence concerning
each party’s financial situation. Furthermore, we affirm the trial court’s decision to hold
a final hearing without requiring Mr. Feger to appear in person.
Affirmed in part; reversed in part; and remanded with instructions.
WHATLEY, CASANUEVA, and COVINGTON, JJ., Concur.
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