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

ANTHONY J. LOSTAGLIO ,

Appellant /Cross

- Appellee ,
v. Case No. 5D 14

- 3494 SHARON N. LOSTAGLIO ,

Appellee /Cross

- Appellant

. ________________________________/ Opinion filed September 16 , 2016 Appeal from the Circ uit Court for Flagler County , Dennis Craig , Judge.
Theodore R. Doran and Carol A. Yoon, of Doran, Sims, Wolfe & Ciocchetti , Daytona Beach, for Appellant /Cross Appelle

. Horace Smith, Jr. and Sheila M. Ennis, of Smith Bigman Brock , Dayton a Beach, for Appellee /Cross Appellant

.
BERGER, J. Anthony Lostaglio (Husband) appeals the final judgment of dissolution, challenging portions of the equitable distribution and the award of durational alimony. Sharon Lostaglio (Wife) cross

- appeals , challenging the equitable distribution scheme and alimony award. We affir m the dissolution of the parties’ marriage and the award of2

durational alimony but reverse and remand for the trial court to recalculate the equitable distribution and reconsider the amount of durational alimony awarded to Wife. Husband and Wife married on October 16, 1999. On March 8, 2011, Husband filed for divorce. They were married for eleven years and five months, during which Wife had an aff air. Throughout their moderate

- term marriage, Husband and Wife enjoyed a high standard of living.
The tw o met while they were both employed w ith IBM. At the time, Wife earned between $40,000 and $45,000 annual ly, while also receiving worker s ' compensation benefits in the amount of $520 per month. When Husband and Wife got married, the parties agreed that W ife would no longer work due to her health issues. 1 Sh e has remained unemployed for fourteen years. Meanwhile, Husband has continued his career

as a high

- ranking executive with IBM and earns in excess of $450,000 per year. In 2008, Wife, at the direction o f Husband, settled her workers' compensation claim
with IBM. The settlement money was then deposited into the parties’ joint account to be used in the construction of the marital home located on the Intracoastal Waterway in Palm Coast, Florida. The par ties put $500,000 cash down on the home and spent $1.8 million to build it. At the time Husband filed his petition for dissolution, the house was valued at $1,150,000, with a mortgage debt of $1,349,000. 2

1 Wife has a history of fibromyalgia, migraines, cervical cancer, carpel tunnel syndrome, depression, and multilevel degenerative disc disease

. However, there was no evidence W ife was disabled.

2 The trial court found that the marital home had a negative equity of $199,000 due to market decline.3

Wife brought a number of premarital assets to the marriage, including a home, investment accounts, an IRA account that was funded in part by a rollover from a 401(k) plan in the amount of $130,000, an annuity wo rth approximately $90,000, and the workers’ compensation claim. These assets, valued at more t han $400,000, were liquidated and used to purchase the parties’ marital homes in North Carolina and Palm Coast. 3 Husband consistently showed a surplus on his financial affidavits. By the time of trial, his monthly income had increased from $18,670 in Ju ly 2013 to $20,330.59 in April 2014, not including stock options in excess of $18,246 per month. While the case was pending, Husband exercised his stock options to pay down roughly $90,000 of the $135,000 equity line of credit, and to pay off Wife’s credi t card debt in the amount of $48,000. He also used the money to fund the parties’ standard of living, pay household expenses, marital debt, and other expenses that did not exist prior to separation, such as temporary alimony and attorney’s fees. There wa s no evidence that either party dissipated assets. In September 2011, the parties stipulated to the following: 1. The parties have been residing together and all of the Wife's needs have been provided for by the Husband. Beginning on September 8, 2011, Wi fe shall vacate the marital home and take her clothing and personal items. 2. In light of the parties [sic] separation, Husband shall pay temporary alimony to the Wife in the amount of $5,300.00 per month beginning September 16, 2011, and continuing on th e sixteenth day of each and every month thereafter, until further order of the Court.

3 Wife depleted all of her pre marital assets while Husband retained a n umber of his, including the pre marital portions of his 401(k) and pension.4

Accor dingly, Wife began receiving $5 300 in temporary alimony beginning September 16,
2011.
At tr ial, Wife testified that the $5 300 in temporary alimony did not meet her ongoing needs, and that she had a deficit each month. This deficit included Wife’s income tax liability on the temporary alimony in the amount of $658.58 per month, as well as monthly health insurance costs between $500 and $600. According to Wife’s fin ancial affida vit, her basic needs totaled $7 035 per month. In order to meet the standard of living she enjoyed during the marriage and to cover her health insurance costs, Wife claimed that her pos t

- dissolution needs would be $9 900 per month. Wife testif ied that her month ly deficit would increase to $5 528 per month if she lived in a manner approaching the marital standard of living. Husband, however, enjoys a surplus each month ranging from $3000 to $7 000, after paying monthly expenses of $16,000 to $22, 000. The trial court ultimately awarded Wife her portions of Husband’s 401(k), valued at approximately $300,000, and her share of Husband’s pension. In the end, she received an unequal distribution in the amount of $34,500. Wife was also awarded durati o nal alimony in the amount of $5 300 per month for ten years to begin on June 25, 2014, the date of the final judgment. Although the trial court indica ted that it had considered the "appropriate tax treatment" of the alimony award, it did not expressly pro vide that the alimony would be taxable to Wife and deductible to Husband, and it did not award any alimony above Wife’s basic needs to allow her to cover the income tax. Husband was awarded the house and the mortgage, with the $199,000 negative equity div ided equally. Additionally, Wife was awarded a partial distribution of marital assets to pay for her expert witness, on the condition that, upon final distri bution of martial assets, Husband5

would receive a $15,000 credit in addition to any associated cos ts. However, the trial court failed to credit Husband with said $15,000 in its distribution of assets. The trial court also failed to equally distribute $48,000 remaining on the couple’s equity line of credit, having erroneously concluded the debt had be en satisfied. On appeal, the parties both agree that Husband is entitled to a $15,000 credit in the equitable distribution scheme for the partial distribution of marital assets he paid for Wife’s expert witness prior to entry of the final judgment. They a lso agree that remand is necessary in order to equally distribute the $48,000 remaining on the equity line of credit. They disagree, however, on the trial court’s decision to grant durational alimony and provide an unequal distribution of marital assets t o wife. With regard to the award of alimony, both parties insist, albeit for different reasons, that the trial court improperly considered Wife’s adulterous behavior.

" Durational alimony may be awarded when permanent per iodic alimony is inappropriate." § 61.08(7), Fla. Stat. (2014) Its purpose is " to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration or following a marriage of long duration if there is no ongoing need fo r support
on a p ermanent basis." Id. The length of a durational alimony award may only be modified under exceptional circumstances and cannot exceed the length of the marriage.
Id. We find no error in the trial court’s decision to award durational alimony. And,
inasmu ch as the award of durational alimony did not exceed the length of the marriage, we find no error in the trial court’s decision to award it for ten years beginning on the date of entry of the final judgment.6

Additionally, we find no error in the trial co urt’s consideration of Wife’s adulterous behavior and reject any argument to the contrary. Section 61.08(1), Florida Statutes (2014) , permits a trial court to consider evidence of adultery in determining a proper award of alimony. However, consideration is dependent upon the circumstances of a particular

case. See Williamson v. Williamson , 367 So. 2d 1016, 1019 (Fla. 1979). In this regard,
the law is clear that " [a]bsent a showing of a related depletion of marital assets, a party’s
adulterous mis conduct is not a valid reason to award a greater share of those marital assets to the innocent spouse" or to deny the adulterous spouse alimony. Childers v. Childers , 640 So. 2d 108, 109

- 10 (Fla. 4th DCA 1994) (citing Heilman v. Heilman , 610 So. 2d 60, 61 (Fla. 3d DCA 1992 ) ); see also Noah v. Noah , 491 So. 2d 1124 (Fla. 1986). Need and ability to pay remain the primary consideration s in awarding alimony. See
Noah , 491 So. 2d at 1127; Motie v. Motie , 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014). The record reflects that the trial court weighed " the significant evidence regarding the Wife’s adultery during the marriage, but [did] not consider the adultery a feature or an

over - significant factor." Husband argues this was error, believing the trial court should have found wife’s adultery instrumental in determining entitlement or, in his vie w, no entitlement to alimony. We reject this argument in the absence of any evidence that Wife depleted marital assets to further her adulterous behavior. See N oah , 491 So. 2d at 1127; Haley v. Haley , 649 So. 2d 33 2, 332

- 33 (Fla. 5th DCA 1995) (" The husband's adultery may be considered by the court in deciding on an alimony award, but where, as here, there is no evidence that the husband's adultery caused a material depletion of marital assets and no evidence it has increased the appellant's need for support (beyond the fact of the divorce itself), the court did not err in failing to award alimony based on th e7

husband's marital misconduct." ) ; Santoro v. Santo ro , 642 So. 2d 86, 87 (Fla. 2d DCA 1994) (" However, the rule in such cases is that unless such marital misconduct causes a depletion of marital assets, thus affecting one spouse's ability to pay alimony or the other spouse's need for alimony, it may not be used as a basis for an award of alimony

. " ) ; Pardue v. Pardue , 518 So. 2d 954, 956 (Fla

. 1st DCA 1988) ("[W]e conclude that it is improper to refuse to award a limony or reduce the amount of alimony . . . m ere ly because of the existence of evidence of the requesting spouse's adultery." ( citing Phillips v. Phillips , 504 So. 2d 412, 413 (Fla. 4th DCA 1987)))

. Likewise, we find no merit in Wife’s assertion that the trial court improperly punished her conduct by reducing her alimony
award. Nevertheless, evi dence that $5 300 per month in durational alimony is sufficient to meet Wife’s post

- dissolution needs is not clear cut

. In calculating the amount of durational alimony, the trial court failed to account for Wife’s additional post

- judgment expenses in the form of taxes 4 and insurance. 5 Notably, prior to entry of the final judgm ent, these
expenses were paid by Husband. However, Wife must n ow incur them on her own. Also,

a lthough the trial court determine d Wife has the ability to work

– a finding we conclude is

4 See Miller v. Miller , 625 So. 2d 1320, 1321 (Fla. 5th DCA 1993) (failing to consider tax consequ ences of income tax laws on the distribution of marital assets and al imony is ordinarily reversible error); Tarkow v. Tarkow ,128 So. 3d 82, 84

- 85 (Fla. 2d DCA 2013) (explaining that the trial court is required to take into consideration the tax treatment and consequences of the alimony award where there is evidence of such (citing Farley v. Farley , 800 So. 2d 710, 712 (Fla. 2d DCA 2001))).

5 Miller v. Miller , 466 So. 2d 356, 357 (Fla. 5th DCA 1985) (reiterating that a trial court may include a reasonable amount for medical insurance premiums as part of an alimony award (c iting Inglett v. Inglett , 439 So. 2d 1389 (Fla. 1st DCA 1983); Cyphers v. Cyphers , 373 So. 2d 442 (Fla. 2d DCA 1979); Blass v. Blass , 316 So. 2d 308 (Fla. 3d DCA 1975)))

.8

supported by competent, substantial evidence

– it did not impute any income to her. Therefore , we are compelled to remand for reconsideration of the amount of durational alimony so the tri al court may consider these factors. We also remand for reconsideration of the equitable distribution scheme in light of
the trial court’s failure to credit Husband with the $15,000 partial distribution made to Wife during the dissolution proceedings, th e failure to account for the $48,000 balance on the marital home’s equity line of credit, and the failure to relieve Wife of the liability 6
associated with the marital home. In all other respects, we affirm. AFFIRMED IN PART, REVERSED IN PART, AND REMANDE D.
LAWSON, C.J. and EDWARDS, JJ., concur.

6 Patel v. Patel , 162 So. 3d 165, 166 (Fla. 5th DCA 2015) (reversing and remanding where mortgaged marital home was awarded to the former husband, but the trial court made no provision for the former wife to be relieved of liability for that indebtedness).