         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. 5D14-3494

SHARON N. LOSTAGLIO,

             Appellee/Cross-Appellant.

________________________________/

Opinion filed September 16, 2016

Appeal from the Circuit 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, Daytona 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 affirm the dissolution of the parties’ marriage and the award of
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 affair. Throughout their moderate-term marriage, Husband and Wife enjoyed a

high standard of living.

       The two met while they were both employed with IBM. At the time, Wife earned

between $40,000 and $45,000 annually, while also receiving workers' compensation

benefits in the amount of $520 per month. When Husband and Wife got married, the

parties agreed that Wife would no longer work due to her health issues.1 She 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 of 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 parties 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




       1Wife has a history of fibromyalgia, migraines, cervical cancer, carpel tunnel
syndrome, depression, and multilevel degenerative disc disease. However, there was no
evidence Wife was disabled.
       2The trial court found that the marital home had a negative equity of $199,000 due
to market decline.



                                             2
      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 worth approximately $90,000, and the

workers’ compensation claim.     These assets, valued at more than $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 July 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 credit 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 was 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, Wife 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 the sixteenth day of each and every month thereafter,
                until further order of the Court.


      3   Wife depleted all of her premarital assets while Husband retained a number of
his, including the premarital portions of his 401(k) and pension.



                                            3
Accordingly, Wife began receiving $5300 in temporary alimony beginning September 16,

2011.

        At trial, Wife testified that the $5300 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 financial affidavit,

her basic needs totaled $7035 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 post-dissolution needs would be $9900 per month. Wife testified that her monthly

deficit would increase to $5528 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 $7000, 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 durational

alimony in the amount of $5300 per month for ten years to begin on June 25, 2014, the

date of the final judgment. Although the trial court indicated that it had considered the

"appropriate tax treatment" of the alimony award, it did not expressly provide 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 divided equally.

        Additionally, Wife was awarded a partial distribution of marital assets to pay for her

expert witness, on the condition that, upon final distribution of martial assets, Husband




                                              4
would receive a $15,000 credit in addition to any associated costs. 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 been 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 also 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 to 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 periodic 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 for support

on a permanent 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,

inasmuch 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.




                                              5
       Additionally, we find no error in the trial court’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 misconduct 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 considerations 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 view, 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 Noah, 491 So. 2d at 1127;

Haley v. Haley, 649 So. 2d 332, 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 the




                                             6
husband's marital misconduct."); Santoro v. Santoro, 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 alimony or reduce the amount of alimony . . . merely 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, evidence that $5300 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 taxes4 and insurance.5 Notably, prior to entry of the final judgment, these

expenses were paid by Husband. However, Wife must now incur them on her own. Also,

although the trial court determined 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 consequences of income tax laws on the distribution of marital assets and alimony 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 (citing 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))).


                                             7
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 trial 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, the 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 REMANDED.

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).


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