          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

JANET LEE SERBOUSEK f/k/a JANET LEE LUCAS,

               Appellant,

 v.                                                       Case No. 5D14-3444

OWEN DOUGLAS LUCAS,

           Appellee.
________________________________/

Opinion filed May 20, 2016

Appeal from the Circuit Court
for Volusia County,
David B. Beck, Senior Judge.

Corrine A. Bylund, of Bylund Law,
PLLC, Jacksonville, for Appellant.

Armistead W. Ellis, Jr., of Armistead W.
Ellis, Jr., P.A., Daytona Beach, for
Appellee.

COHEN, J.

        Janet Lucas, n/k/a Janet Serbousek, (“Former Wife”) appeals the final judgment

 dissolving her marriage of over thirty-eight years to Owen Lucas (“Former Husband”).

 Former Wife raises four issues on appeal: error in the equitable distribution, error in the

 amount of permanent periodic alimony awarded, failure to award her retroactive

 alimony, and failure to award her attorney’s fees. We affirm in part and reverse in part.

        The parties were married in 1975 and had two children, both of whom are now

 adults. During the marriage, Former Wife was the primary caretaker for the children
while Former Husband worked as a general contractor. Former Wife also assisted in the

business by keeping the company’s books and cleaning at construction projects. The

couple’s business revenue ebbed and flowed, with much of the company’s workload

attributable to Former Wife’s family. The parties agreed that they ran significant

personal expenses through the business accounts. Former Husband continued this

practice after the separation.

       The main asset subject to equitable distribution was the marital home. The

parties also owned two other lots that they financed by borrowing against the marital

residence. Thus, although the home was valued at only $315,000, it secured over

$330,000 of debt at the time of the dissolution. 1 This debt burden was exacerbated by

Former Husband’s neglect in failing to respond to the call-in of a line of credit secured

by the home, which prevented favorable refinancing. As a result of this neglect, the

payments on that line of credit increased from less than $250 per month to over $2,500

per month.

       The three-day trial was held over the course of three months. Each side

presented an accounting expert. While the experts differed in methodology, they

ultimately reached relatively consistent opinions that there was approximately $80,000

per year of business income. To say that the trial judge found neither party credible as a

witness would be an understatement. Former Husband was vague in answering some

questions and claimed not to remember the answers to many others. Based upon hand-

written notes and excerpts from the company’s accounting records, Former Wife

estimated more than $540,000 in business revenue was kept “off the books” over the


       1 The appraisals on the two other lots showed values of $90,000 and $70,000,
respectively. There is no record evidence of any debt on these lots.


                                            2
     AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

PALMER and WALLIS, JJ., concur.




                                  7
      On remand, the trial court should also address two other issues related to the

equitable distribution. First, Former Husband concedes that the trial court incorrectly

valued Former Wife’s IRA account; the distribution should reflect the actual value of the

account. 3 Second, the trial court distributed the former couple’s credit-card debts as

marital debt without a finding on the value thereof. 4 The final judgment implies that the

credit card debts were distributed equally, 5 but without a valuation of this debt, we

cannot determine whether the trial court effectuated its stated intent to distribute the

marital assets equally. On remand, the trial court should correct and clarify its factual

findings on these issues and adjust the equitable distribution accordingly.

      Former Wife further argues that the trial court erred in denying her claim for

attorney’s fees. This is also an area in which trial courts have broad discretion. The

purpose of an award of attorney’s fees in a dissolution case is to “ensure[] that both

parties are able to retain competent legal counsel.” Kouzine v. Kouzine, 44 So. 3d 213,

215 (Fla. 5th DCA 2010). The trial court must determine “whether one spouse has a

need for such fees and the other has the ability to pay them.” Id. at 215-16 (citing Lovell

v. Lovell, 14 So. 3d 1111, 1116-17 (Fla. 5th DCA 2009)). Beyond need and ability to

pay, the court may also consider other factors including “the scope and history of the



      3    The trial court valued the IRA at $14,000 rather than the actual value of
$10,000.
      4 The parties contributed to this omission by failing to present evidence on the
account balances at the time of trial. They cannot expect the trial court to conjure these
amounts.
      5  The trial court’s order states: “[T]he Court finds that an equal division for the
majority of the marital assets and liabilities is warranted unless stated otherwise for a
specific asset or debt.” No unequal distribution of the credit card debt is mentioned, and
the court found the bills had been fully paid on an ongoing basis from marital assets.


                                            4
litigation; the duration of the litigation; the merits of the respective positions; [and]

whether the litigation is brought or maintained primarily to harass (or whether a defense

is raised mainly to frustrate or stall).” Dybalski v. Dybalski, 108 So. 3d 736, 738 (Fla. 5th

DCA 2013) (quoting Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997)).

       Former Wife argues she is entitled to attorney’s fees because Former Husband

held all the earning power while her income was limited to $200, and the debt burden

for the marital property left her unable to afford her attorney’s fees. The trial court’s

order discussed the “merits of the respective positions,” Former Wife’s request for more

in alimony than Former Husband earned, and the trial court’s view that Former Wife’s

“incredulity and audacity” were “staggering.” The order further explained that the

application of the factors outlined in Rosen suggested that Former Wife should pay

Former Husband’s fees. See McAliley v. McAliley, 704 So. 2d 611, 613 (Fla. 4th DCA

1997) (“Attorney's fees may be awarded as a punitive measure where a spouse in a

domestic relations case institutes frivolous non-meritorious claims that contribute to

unnecessary legal expenses, costs and a delay of the proceedings.” (citing Crowley v.

Crowley, 678 So. 2d 435, 439 (Fla. 4th DCA 1996))).

       The trial court found, however, that Former Wife did not have the ability to pay.

Because the trial court divided the marital assets roughly equally between the parties

and awarded Former Wife alimony to equalize their financial positions, we find no abuse

of discretion in denying Former Wife’s request for attorney’s fees. See Matajek v.

Skowronska, 927 So. 2d 981, 988 (Fla. 5th DCA 2006) (holding that “an award of

attorney's fees is inappropriate if the parties are left in relatively equal financial




                                             5
circumstances after the dissolution” (citing Brock v. Brock, 690 So. 2d 737, 742 (Fla. 5th

DCA 1997))).

          The trial court’s frustration was both apparent and understandable; neither party

was particularly veracious. The trial court was especially vexed by Former Wife’s

testimony that the couple’s tax returns showed minimal income because they ran a

great deal of personal expenses through the business and had significant unreported

income, but Former Husband was not without fault. Both parties admitted to using the

business to pay personal expenses—taking liberties with their tax returns. Former

Husband’s testimony was evasive, and the trial court found that he was “not completely

candid.” Former Husband’s neglect also resulted in a significant increase in the

mortgage payment. Yet the trial court’s final judgment referenced only Former Wife’s

“admitted criminality,” presumably for either lying on her tax returns about the

unreported income or lying in court about the existence of unreported income. If the trial

court felt the need to oppugn the character of the litigants, both were worthy of the

effort.

          The final judgment reflects the trial court’s frustration with the parties. The court

was forced to either accept Former Wife’s testimony as to such income or reject it and

base its ruling on the testimony from the experts, neither of whom found evidence to

support the amounts asserted by Former Wife. The court chose the latter. Ultimately,

the broad discretion afforded the trial court in these matters compels us to affirm the

award of $2,000 in permanent periodic alimony and the denial of attorney’s fees. We

remand for further consideration of Former Wife’s claim for retroactive alimony and for

correction of the equitable distribution.




                                                6
     AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

PALMER and WALLIS, JJ., concur.




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