Opinion
No. 2D21-603
06-29-2022
Richard A. ARZILLO, Appellant, v. Gretchen L. ARZILLO, Appellee.
Mark F. Baseman of Felix, Felix & Baseman, LLC, Tampa, for Appellant. Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellee.
Mark F. Baseman of Felix, Felix & Baseman, LLC, Tampa, for Appellant.
Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellee.
LUCAS, Judge.
The Arzillos' divorce has been lengthy, costly, and bitter. The circuit court commendably shepherded these parties through a five-day trial, at the conclusion of which it issued an amended final judgment of dissolution of marriage. The court's final judgment set out a parenting plan for the parties' minor children, awarded child support, and equitably distributed their debts and assets.
In the five years between the commencement of the original petition for dissolution of marriage and the issuance of a final judgment, there have been eight appeals and petitions filed with this court.
In his appeal, Richard Arzillo (the Former Husband) has identified shortcomings with the amended final judgment that necessitate reversal. We address his two arguments that have merit, mindful that "[t]ypically, courts review dissolution of marriage final judgments as a whole for an abuse of discretion." Duke v. Duke , 211 So. 3d 1078, 1080 (Fla. 5th DCA 2017).
First, the Former Husband, an unemployed former teacher, correctly points out that the court's imputation of a full-time teacher's income to him did not include any findings as to the current employment market in his community or that there were any jobs that were available to him. That omission was error. See § 61.30(2)(b), Fla. Stat. (2020) ("In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available."); Gillespie v. Holdsworth , 333 So. 3d 278, 281 (Fla. 2d DCA 2022) ("Courts ‘have required particularized findings regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal.' " (quoting Broga v. Broga , 166 So. 3d 183, 185 (Fla. 1st DCA 2015) )); Jorgensen v. Tagarelli , 312 So. 3d 505, 507 (Fla. 5th DCA 2020) ("As the party seeking to impute income, Former Husband bears the burden to show "both employability and that jobs are available." " (quoting Dottaviano v. Dottaviano , 170 So. 3d 98, 100 (Fla. 5th DCA 2015) )); Holder v. Lopez , 274 So. 3d 518, 521 (Fla. 1st DCA 2019) ("In addition, even if there were a valid basis to impute income to Former Husband, the trial court erred in failing to base imputation on specific evidence of available jobs appropriate to Former Husband's experience and physical limitations, how much they would pay, and other pertinent factors ...."). Relatedly, we have reviewed the record closely but are unable to ascertain why the circuit court completely disallowed the Former Husband's deduction of his monthly health insurance expense. Without some explanation for why the court rejected what was, apparently, unchallenged evidence, we are compelled to reverse that finding as well. Cf. Sanders v. Peterson-Sanders , 321 So. 3d 802, 806 (Fla. 4th DCA 2021) (remanding for reconsideration of Former Husband's financial affidavit evidence as to liabilities where "[t]he financial affidavits were admitted into evidence and Former Wife offered no argument contradicting the amounts listed").
Second, the Former Husband takes issue with the circuit court's distribution of his depleted retirement account as a marital asset. It was undisputed—and acknowledged in the amended final judgment—that, prior to the trial, the Former Husband had depleted this account to pay his attorney's fees. The court made no finding that the dissipation of this account was, in any way, due to the Former Husband's misconduct. Accordingly, the court should not have distributed the depleted account as an asset. See Bair v. Bair , 214 So. 3d 750, 758—59 (Fla. 2d DCA 2017) ("This court has held that it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings unless there has been misconduct during the proceedings that results in the dissipation." (citing Roth v. Roth , 973 So. 2d 580, 584—85 (Fla. 2d DCA 2008) )).
Elsewhere in the amended final judgment, the court noted that the Former Husband had expended in excess of $350,000 in attorney's fees.
We, therefore, reverse the amended final judgment and remand for the circuit court to enter a new judgment consistent with this opinion.
Reversed and remanded with instructions.
KHOUZAM and SMITH, JJ., Concur.