text:
    THE FLORIDA BAR, Complainant, v. Joseph BERN, Respondent.
    No. 60280.
    Supreme Court of Florida.
    Dec. 9, 1982.
    Rehearing Denied Feb. 8, 1983.
    John F. Harkness, Jr., Executive Director, and Stanley A. Spring, Staff Counsel, Tallahassee, David G. McGunegle, Bar Counsel, Orlando, for complainant.
    Joe B. Weeks, Winter Park, for respondent.
   PER CURIAM.

This disciplinary proceeding by The Florida Bar against Joseph Bern, a member of The Florida Bar, is before us on petition for review of the report of the referee. The referee’s report and record have been filed with this Court pursuant to Florida Bar Integration Rule, article XI, Rule 11.-06(9)(b). We have jurisdiction. Art. V, § 15, Fla. Const.

We have summarized the complaint of The Florida Bar to the following allegations:

The respondent is a member of The Florida Bar and is subject to the jurisdiction and disciplinary rules of this Court.

Respondent was retained by Mrs. Jeanne H. Warner to resolve her legal problems, which centered around some instituted mortgage foreclosure actions. Respondent’s representation of Mrs. Warner included preparing a chapter seven bankruptcy action, however the action was not filed because of a superceding partnership agreement (signed by all involved on April 16, 1980), which included respondent, Mrs. Warner, and a third party. The agreement provided that Mrs. Warner would deed title to the properties (subject to the mortgage foreclosure actions) to respondent and the other investor, who would pay off the judgment creditors, sell the properties, and split the profits, 34% to Mrs. Warner and 33% each to respondent and the third party.

Respondent was the only attorney involved in these negotiations, during which he advised Mrs. Warner that she had the choice of either bankruptcy or the previously mentioned agreement.

Most of the judgments and debts were satisfied under the agreement.

Subsequent to signing the April 16, 1980, documents, Mrs. Warner requested an accounting from respondent. She received an inadequate accounting and was not furnished with copies of all satisfactions of judgments involved.

After her complaint to The Florida Bar Mrs. Warner received an accounting from respondent. Although it addressed the properties and disbursements under the partnership agreement, no mention was made of respondent’s finder’s fee or attorney’s fee.

Respondent still has not provided Mrs. Warner with an accounting of the fees already received nor returned to her approximately $250 owed her from the proceeds of the property sales.

By reason of the foregoing respondent has violated disciplinary rules 5-101(A), 5-104(A), 9-102(B)(3), and 9-102(B)(4) of The Florida Bar’s Code of Professional Responsibility and Rule 11.02(4) of article XI of the Integration Rule of The Florida Bar.

A dispute arose when respondent entered into certain- business arrangements with his client, Mrs. Warner, in the form of a partnership and, at the same time, acted as attorney for the partnership. In his findings, the referee said:

It appears that at the time Respondent agreed to become a joint investor with Mrs. Warner there was a conflict of interest. As her attorney in an effort to salvage her properties and secure an independent investor for her, he was under a fiduciary duty to maximize and represent her best interests. It is obvious from the record that it was her desire to have an equal division of any profit from the sale of the properties. When the Respondent became the third partner in the equal one-third partnership division, his personal interest then became that of maximizing his financial gain from the investment and not that of his client’s. As referee, I am aware that Respondent did save Mrs. Warner’s properties from imminent foreclosure. His representation of Mrs. Warner may have been difficult; however, after considering all of the testimony in evidence, it is evident that the Respondent either was unaware of or chose to ignore the fiduciary responsibilities placed on an attorney entering into a business transaction with a client. At the time that he determined to enter into the matter as an investor, Respondent had a duty to advise Mrs. Warner that their individual interest could or did conflict and that she should seek independent counsel prior to signing the agreement which was prepared by Respondent and signed by her after counselling with her.

Based on his findings the referee made the following recommendations:

I recommend that Respondent be found guilty and that he be found guilty of the following violations of The Florida Bar’s Code of Professional Responsibility as charged in the Complaint:
1. Disciplinary Rule 5-101(A) — For accepting employment when his own financial business or personal interests were involved.
2. Disciplinary Rule 5-104(A) — -For entering into a business transaction with a client when they had differing interests therein and the client expected the lawyer to use his own professional judgment to protect same and without full disclosure prior to the transaction.
3. Disciplinary Rule 9-102(B)(3) — For failing to maintain complete records and render an appropriate accounting of his handling especially with respect to the fees being charged, paid and still owing, if any.
4. Disciplinary Rule 9-102(B)(4) — For failing to return $250 as agreed to in the bankruptcy matter.
5. Rule 11.02(4) of Article XI of the Integration Rule of The Florida Bar— Failure to adequately account and return the $250.

In his recommendation as to disciplinary measures to be applied, the referee took into account the prior disciplinary history of respondent. Respondent was privately reprimanded in January of 1975 for two counts of attempted solicitation. In May of 1978 he was again privately reprimanded for cashing two checks given him by a client for fees which he had agreed to hold and did not, resulting in financial penalties and inconveniences to the clients. In June of 1980 a public reprimand was ordered by this Court for disciplinary violations involving solicitation of an investor to invest in a company.

The referee has recommended that a public reprimand be administered to respondent and that respondent be placed upon probation for a period of six months to three years.

In rendering discipline, this Court considers the respondent’s previous disciplinary history and increases the discipline where appropriate-. See e.g., The Florida Bar v. Leopold, 399 So.2d 978 (Fla.1981); The Florida Bar v. Greenspahn, 396 So.2d 182 (Fla.1981); The Florida Bar v. Ryan, 396 So.2d 181 (Fla.1981); The Florida Bar v. Greenspahn, 386 So.2d 523 (Fla.1980); The Florida Bar v. Vernell, 374 So.2d 473 (Fla.1979); The Florida Bar v. Rubin, 362 So.2d 12, 15 (Fla.1978); and The Florida Bar v. Solomon, 338 So.2d 818 (Fla.1976). The Court deals more harshly with cumulative misconduct than it does with isolated misconduct. Additionally, cumulative misconduct of a similar nature should warrant an even more severe discipline than might dissimilar conduct. The referee’s discipline does not accord with the principle of cumulative discipline. Considering respondent’s previous history and the fact that this involves another instance of business matters with clients, the respondent should be suspended. The respondent, Joseph Bern, is, therefore, suspended from The Florida Bar for a period of three months and one day. The suspension shall be effective January 10, 1983, thereby giving respondent time to close out his practice and take the necessary steps to protect his clients, and it is ordered that respondent shall not accept any new business.

Costs in the amount of $544.41 are charged to the respondent, and in addition, any other costs that have been or may be incurred as a result of these proceedings.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON, McDonald and EHRLICH, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Irving M. FELDER, Respondent. THE FLORIDA BAR, Complainant, v. Jed BERMAN, Respondent.
    Nos. 60298, 60300.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Rehearing Denied Jan. 26, 1983.

      John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and John B. Root, Jr., Bar Counsel, Orlando, for complainant.
    Jack T. Bridges of Cleveland & Bridges, Sanford, for respondents.
   PER CURIAM.

This disciplinary proceeding was instituted by The Florida Bar against two attorneys who were practicing law together. The Bar filed separate complaints and the referee held a hearing, following which he issued two separate reports finding misconduct. The reports of the referee have been filed with the Court for the entry of an appropriate judgment, and The Florida Bar has petitioned for review of the referee’s recommended discipline. We have jurisdiction. Art. V, § 15, Fla. Const.

Based on the Bar’s complaint, the referee found respondent Irving M. Felder guilty of three counts of misconduct. The referee found that as executor of an estate, respondent transferred from the estate to himself and his wife certain shares of stock without the permission of or notice to the court or the beneficiaries. The shares of stock, plus earned dividends, were later restored to the estate, and the records and accounts were falsified in an attempt to cover up the transfers. The referee found that the conduct shown violated the Code of Professional Responsibility, Disciplinary Rules 1-102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(A), and 9-102(B) and Florida Bar Integration Rule, article XI, Rules 11.02(3)(a) and 11.02(4).

The referee- also found that by allowing the estate to remain unsettled from the time of his original appointment in 1969 until the time the proceeding was finally closed in 1981, respondent Felder had neglected a legal matter entrusted to him in violation of Disciplinary Rule 6-101(A)(3).

The referee also found that respondent commingled personal funds and funds of his law firm with funds held in trust for clients. The evidence showed that among several ledgers, or sub-accounts, of respondent’s trust account were one containing personal funds and one containing funds derived from income tax and social security money withheld from the salaries of firm employees. The referee found evidence of extremely poor record keeping, and found that there were overdrafts in various sub-accounts of the trust account. The referee concluded from the fact of these overdrafts that funds held in trust for various clients were drawn upon to honor checks chargeable to other sub-accounts and that therefore clients’ funds had in fact been diverted to unauthorized uses. The referee concluded that respondent Felder had violated Disciplinary Rule 9-102(A), and article XI, Rule 11.02(4) of the Integration Rule.

Based on the Bar’s complaint against respondent Jed Berman, the referee found two counts of misconduct. The referee found that respondent, as attorney for the executor in the same probate proceeding mentioned above, had transferred from the estate to himself and his wife certain shares of stock without permission of or notice to the court or beneficiaries. These shares, along with the earned dividends, were later transferred back to the estate. The referee found that respondent Berman, along with respondent Felder, participated in a scheme to cover up this impropriety after they transferred the stock back to the estate. The referee concluded that respondent Ber-man violated Disciplinary Rules 1— 102(A)(4), 1-102(A)(5), 1-102(A)(6), 9-102(A), and 9-102(B) and Florida Bar Integration Rule, article XI, Rules 11.02(3)(a) and 11.02(4).

The second count of misconduct the referee found against respondent Berman was based on the same trust account improprieties mentioned above in connection with respondent Felder. The referee concluded that respondent violated Disciplinary Rule 9-102(A) and Integration Rule, article XI, Rule 11.02(4).

Although in the proceeding before the referee the respondents denied some of the Bar’s allegations and presented exculpatory testimony, they have not petitioned for review of the referee’s findings of fact. We therefore approve the conclusions of the referee. The Florida Bar has petitioned for review of the referee’s recommended discipline.

With regard to respondent Felder, the referee recommended a public reprimand, suspension from the practice of law for nine months, assessment of the referee’s costs, and assessment of two-thirds of the Bar’s costs in the joint proceeding. With regard to respondent Berman, the referee recommended a public reprimand, suspension from the practice of law for three months, assessment of the referee’s costs, and assessment of one-third of the Bar’s costs in the joint proceeding. The referee pointed out in justification of the disparate recommendations that this case was respondent Berman’s first experience as counsel to the executor of an estate, and that respondent Felder was the senior partner in the firm. In its petitions for review of the recommendations, The Florida Bar argues that the recommended discipline is too lenient. The Bar argues that respondent Felder should be disbarred and that respondent Berman should be suspended from the practice of law for two years.

We do not believe this is an appropriate case for disbarment. “Disbarment is an extreme penalty and should only be imposed in those rare cases where rehabilitation is highly improbable.” The Florida Bar v. Davis, 361 So.2d 159, 162 (Fla.1978). “[I]t is appropriate in determining the discipline to be imposed to take into consideration circumstances surrounding the incident, including cooperation and restitution.” The Florida Bar v. Pincket, 398 So.2d 802, 803 (Fla.1981). There is no showing that the rehabilitation of respondent Felder is highly improbable. He has been a member of the Bar since 1950 and this is the first time he has been involved in disciplinary proceedings.

The respondents returned the shares of stock to the estate before any of the beneficiaries knew they had been transferred and before any complaints were made to The Florida Bar. Thus the respondents reversed their course of action and did not persist in their attempt to take an unauthorized benefit from the estate. Similarly, there was no evidence that any clients were actually hurt by the respondents’ trust account overdrafts; enough money was always restored in time to meet any obligations. Both respondents cooperated with the Bar in that they admitted to most of the allegations in the Bar’s complaints and made their records available for inspection.

On the other hand, we agree with the Bar that the referee’s recommendations for discipline are too lenient. The question of the proper punishment for professional misconduct is never a precise matter in cases such as these, but it is the responsibility of this Court to make an appropriate judgment. It is therefore adjudged that respondent Irving M. Felder shall be suspended from the practice of law for a period of two years, is assessed The Florida Bar’s costs of $1,615.84 and the referee’s costs of $300.00, and is hereby reprimanded for his professional misconduct. Respondent Jed Berman shall be suspended from the practice of law for a period of one year, is assessed The Florida Bar’s costs of $807.92 and the referee’s costs of $300.00, and is hereby reprimanded for his professional misconduct. These suspensions shall become effective January 17, 1983, thereby giving respondents time to close out their practice and take the necessary steps to protect their clients, and it is ordered that respondents shall not accept any new business.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and EHRLICH, JJ., concur.


author: EHRLICH, Justice.

text:
    THE FLORIDA BAR. In re Petition of Harris L. KIMBALL for Reinstatement.
    No. 60831.
    Supreme Court of Florida.
    Dec. 16, 1982.
    Rehearing Denied Feb. 7, 1983.
    Louis M. Jepeway, Jr. of Jepeway & Jepeway, Miami, for petitioner.
    John F. Harkness, Jr., Executive Director and Stanley A. Spring, Staff Counsel, Tallahassee, and David G. McGunegle, Bar Counsel, Orlando, for The Florida Bar, respondent.
   EHRLICH, Justice.

This cause is before the Court on a petition for reinstatement to The Florida Bar of Harris L. Kimball. We have jurisdiction. Art. V, § 15, Fla. Const.; Fla.Bar Integr. Rule, art. XI, Rules 11.09 and 11.11.

Petitioner was disbarred by this Court in 1957 for the commission of a homosexual act. See State ex rel. The Florida Bar v. Kimball, 96 So.2d 825 (Fla.1957). Subsequently, he went to New York where, after passing that state’s bar exam, he was admitted to the practice of law in 1974. In June 1981, petitioner sought reinstatement to The Florida Bar. A referee was appointed and a hearing was held in April 1982. The referee recommended that Kimball be readmitted to the Bar on the condition that he first take and pass The Florida Bar Examination. The Board of Governors voted to support the referee’s recommendation. Kimball has filed a petition for review. The sole issue for review is whether this Court should order petitioner’s reinstatement conditioned on passage of The Florida Bar Examination as recommended by the referee. We approve the recommendation of the referee and hold that, as a prerequisite to readmission into The Florida Bar, petitioner must successfully pass the Florida Bar Examination.

An initial determination of which Florida Bar Integration Rule applies to this reinstatement proceeding is of manifest importance. Both petitioner and The Florida Bar assume that the 1957 rule, the rule in effect at the time of the original disbarment, applies to this petition for reinstatement. They cite The Florida Bar. In re Turk, 307 So.2d 162 (Fla.1975); The Florida Bar. In re Rassner, 301 So.2d 451 (Fla.1974); and The Florida Bar. In re Bond, 301 So.2d 446 (Fla.1974), as support for their position. A close reading of those eases, as well as others, shows their position to be in error.

State ex rel. The Florida Bar v. Evans, 109 So.2d 881 (Fla.1959), contains the original statement of the general rule that “[Reinstatement proceedings are governed by the rule in effect at the time application for reinstatement is made.” 109 So.2d at 882. That basic rule has been noted in many subsequent decisions but not always clearly followed, and precise explanations have not always been proffered when the rule has been deviated from. An examination of the leading cases supports this.

John T. Bond was allowed to resign from The Florida Bar in 1971. The Florida Bar v. Bond, 250 So.2d 274 (Fla.1971). This Court permitted his resignation “for three years, and thereafter until he shall have demonstrated to The Bar fitness to resume practice.” 250 So.2d at 274. The issue in 1974 relating to his readmission was whether he had to seek readmission pursuant to the then-present rules (effective Dec. 1, 1972) or pursuant to the rules in effect when he resigned. The Florida Bar. In re Bond, 301 So.2d 446 (Fla.1974). If the former, then he would be required to pass the bar examination; if the latter, he would not have to take the exam. Although this Court held that the rules in effect at the time of resignation applied, the reasoning was not that the old rules apply because an attorney comes back in under the old rules; rather, the old rules applied because this Court found that the new rule did not apply. The 1972 rules in force at the time of Bond’s readmission application specifically provided that they would apply “[i]f resignation is accepted under this rule." In re The Florida Bar, 262 So.2d 857, 872 (Fla. 1972) (emphasis supplied). We clearly noted that “petitioner’s resignation was not accepted under this rule but rather accepted under Rule 11.08 effective June 20, 1969.” 301 So.2d at 448 (emphasis supplied). Thus, the Bond case is not authority for the proposition that a disbarred attorney is readmitted under the rules he was disbarred under.

Likewise, The Florida Bar. In re Rassner, 301 So.2d 451 (Fla.1974), is inapposite. Rassner was permanently disbarred by this Court in 1965. The Florida Bar v. Rassner, 172 So.2d 818 (Fla.1965). In 1972, he petitioned for readmittance and this Court declared that the petition “be duly processed in the manner provided by the governing rules.” In re Rassner, 265 So.2d 363, 364 (Fla.1972). In 1974, The Florida Bar supported the referee’s recommendation that Rassner be admitted conditioned upon passing the bar examination. Between the 1972 opinion and the 1974 recommendation, the rules had been changed shortening from ten years to three years the period necessary before an applicant for readmittance would be required to retake the bar exam. We held that “[i]t would be unfair and contrary to due process and the general operation of recognized limitations to shorten the time from ten years to three years and make it apply to petitions for reinstatement which are pending.” 301 So.2d at 453-54. We concluded that the rules in effect in 1972— the time of application — would apply, and not the later 1974 rules. We did not hold the 1965 rule, the year of disbarment, applicable.

At first glance, The Florida Bar. In re Turk, 307 So.2d 162 (Fla.1975), may seem to be authority for petitioner’s argument. It is not, however. Turk was temporarily disbarred by this Court in 1967 for three years and until demonstration of rehabilitation. The Florida Bar v. Turk, 202 So.2d 848 (Fla.1967). The rule in effect when he was disbarred stated that “[a]n attorney who has been disbarred other than by permanent disbarment ... may be reinstated to membership in The Florida Bar pursuant to this rule.” In re The Florida Bar, 135 So.2d 715, 730 (Fla.1961) (emphasis supplied). Because Turk had not been permanently disbarred, the rule in effect at the time of his severance from the Bar, since applicable, would control. In that case, the rule he went out under was applicable, by its very language. Turk was thus not required to take the bar exam.

Two recent cases inconsistent with the rule laid down in Evans require comment. In the first, The Florida Bar. In re Petition of Davis, 397 So.2d 690 (Fla.1981), petitioner was disbarred in 1964 and applied for reinstatement in 1980. This Court conditioned his reinstatement upon completion of the Florida and Ethics portions of The Florida Bar Examination as per the 1964 rules. In the other case, The Florida Bar. In re Kimmel, 402 So.2d 388 (Fla.1981), petitioner was disbarred in 1960 and sought reinstatement in 1975. We required him to take the full Florida Bar Examination, as per the 1960 rules. In both proceedings, the petitioner and The Florida Bar jointly misper-ceived the correct procedural rule. This Court in neither instance went behind the issues as framed by the parties and thus the question of which rule applied was not an issue. We now feel that the issue is squarely before us.

We interpret the above cases to mean that the Evans rule is still viable, but somewhat modified: that reinstatement proceedings are governed by the rules in effect at the time of application for reinstatement, unless the original discipline opinion otherwise provides or unless the rules at the time of disbarment otherwise provide. We readopt the Evans rule and disapprove those cases inconsistent therewith. It is the position of this Court that an attorney who has been permanently disbarred has “no standing or vested right in the means of his reinstatement.” The Florida Bar. In re Turk, 307 So.2d at 164 (Overton, J., dissenting). “A judgment of disbarment terminates the respondent’s status as a member of the Bar.” Fla.Bar Integr.Rule, art. XI, Rule 11.10(5).

In Kimball’s case, the original discipline opinion of this Court made no provisions for reinstatement. 96 So.2d at 825. Likewise, the 1957 disbarment rules did not provide that a disciplined attorney could return under those rules. Thus, Kimball must petition for readmission according to the rules in effect now. These say that “[a] former member who has been disbarred may only be admitted again upon full compliance with the rules and regulations governing admission to the Bar.” Fla.Bar Integr. Rule, art. XI, Rule 11.10(5). These rules and regulations, of course, require passage of The Florida Bar Examination.

Given the procedural posture of the instant case (with both Kimball and The Florida Bar mistaken as to the proper rule), this Court finds that an analysis of the facts and arguments therein shows that Kimball would have been required to pass the bar examination even if the 1957 rules were applicable.

Petitioner argues that when he was disbarred in 1957, the rules in effect at that time contained no requirement that a disbarred attorney must successfully complete the Florida Bar Examination prior to his reinstatement. He further argues that to require the exam now would be an unconstitutional and unpermissive increase of the penalty already imposed upon the attorney. This would, in effect, the argument continues, violate the Federal and Florida Constitutional prohibitions against ex post facto laws.

Petitioner is mistaken in his argument. The Florida Bar Integration Rule in effect in 1957 states, in part, that “[t]he Board shall make recommendations concerning the petition and shall file with the Clerk of this Court a certified copy of its recommendations, together with a transcript of the evidence and the other proceedings in the cause.” Fla.Bar Integr.Rule, art. XI, Rule 5(i), Yol. 3, Fla.Stat. (1957) (emphasis supplied). The rule does not contain any limitation on the Board’s recommendations. Clearly, it is within the province of the Board of Governors to assure the competency of an individual seeking readmission into the bar. As we have stated elsewhere, “[especially in cases for reinstatement, the public must be assured of a lawyer’s .. . continuing competency. The bar examination is ... one indicator that a lawyer is still qualified to practice.” The Florida Bar. In re Kimmel, 402 So.2d at 388.

Petitioner’s ex post facto argument lacks merit because a new penalty is not being imposed for an old violation. The question is not whether today’s rules are being retroactively applied to a 1957 disbarment but whether the 1957 rules permit the requirement of prior passage of the bar examination. Since petitioner’s original disbarment order contained no language relative to the examination, the taking of the examination was not foreclosed by that document. In its recommendations that the bar exam be taken, the Board was acting within its authority. No ex post facto application of the law is therefore present.

The only remaining question is how much of the bar exam should be required of petitioner. After finding that “[t]he petitioner’s knowledge of Florida law and procedures has been eroded considerably by the passage of time and nonuse,” the referee recommended “passage of The Florida Bar Examination.” The Florida Bar proposes that Kimball be required to take the full three-part exam. Kimball feels, at most, that he should take only the Florida portion of the exam. This Court, however, views this issue as now moot given our reaffirmation that the rules in effect at the time of the reinstatement petition apply. The present rules are crystal-clear, requiring “full compliance with the rules and regulations governing admission to the Bar.” Fla.Bar Integr.Rule, art. XI, Rule 11.10(5) (emphasis supplied). What is mandated is the whole of the three-part exam. We would be remiss in our duty to protect the public, administer justice, and oversee the legal profession to require less.

Petitioner, Harris L. Kimball, will be reinstated to the practice of law in Florida subject to his passing The Florida Bar Examination. Costs of these proceedings in the amount of $266.87 are hereby assessed against petitioner.

It is so ordered.

ALDERMAN, C.J., and ADKINS, BOYD, OVERTON and McDONALD, JJ., concur.


author: ADKINS, Justice.

text:
    CITIZENS OF the STATE of Florida, Appellants, v. PUBLIC SERVICE COMMISSION and Florida Power Corporation, Appellees.
    No. 61101.
    Supreme Court of Florida.
    Dec. 16, 1982.

      Jack Shreve, Public Counsel and J. Roger Howe, Associate Public Counsel, Tallahassee, for appellants.
    William S. Bilenky, Gen. Counsel and Paul Sexton, Staff Counsel, Florida Public Service Com’n, Tallahassee, and Sylvia H. Walbolt and Robert W. Pass of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, Tampa, and S.A. Brandimore, Richard W. Neiser and James A. McGee of the Office of the Gen. Counsel, Florida Power Corp., St. Petersburg, for appellees.
   ADKINS, Justice.

This cause is before us to review a Public Service Commission order approving a permanent rate increase sought by Florida Power Corporation. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

On April 24, 1980, Florida Power petitioned the Commission for a permanent rate increase to increase annual revenues by $99 million. The petition also sought an interim rate increase designed to yield an additional $61,173,000 per year. Prior to filing its petition, Florida Power had requested the Commission to approve use of a projected 1980 test year for its upcoming rate case. The Commission held informal workshops to consider Florida Power’s ability to furnish reliable data for the 1980 test period. Interested parties were invited to file briefs addressing the issue of the Commission’s authority to employ projected test years at the second workshop. Public Counsel also participated in the workshops. On April 7, 1980, the Commission approved Florida Power’s request and the petition was subsequently filed.

The Citizens, through Public Counsel, intervened and filed a motion to deny the proposed interim increase. On May 21, 1980, by Order 9386, the Commission suspended Florida Power’s proposed rates, requesting legal briefs concerning whether Maule Industries v. Mayo, 342 So.2d 63, (Fla.1976), permitted interim rates based on projected data and requiring Florida Power to submit supplemental filings. Florida Power & Light Company intervened and filed a brief. Florida Power also filed a brief.

The Commission ultimately voted to award to Florida Power an interim increase of approximately $54.6 million, subject to refund, and issued Order No. 9451 on July 15, 1980, to that effect. In this order, the Commission concluded that Florida Power had sufficiently demonstrated a present need for an interim increase in revenues as indicated by the projected 1980 data and corroborated by other historical data.

Order No. 9451 never became a final order. Public Counsel petitioned for reconsideration of the order and the Commission held a public hearing on the petition to determine whether certain unrecovered fuel costs should have been included in the interim rate increase. By Order No. 9577, the Commission reduced the interim rates to $40,134,000 and all excess funds collected under the previous order were refunded.

A status conference had been held, prior to issuance of Order No. 9577, at which time Florida Power agreed to extend the eight-month suspension period and to file additional data to support its test year assumptions and projections. The full rate case hearings were held during January and February 1981. At that time, Florida Power also filed historic data for the 1980 test year to allow the Commission to test the reasonableness of the projections upon which the case had proceeded. The Commission’s final order, Order No. 9864 issued on March 11, 1981, confirmed the revenues collected under the interim rates and approved permanent rates yielding additional annual revenues of approximately $58.4 million. The • Commission made the new rates applicable to all meter readings made on or after thirty days from the date of the vote and decision on the petition, or March 22, 1981.

Public Counsel petitioned for reconsideration of Order No. 9864. By Order No. 10162, issued July 29, 1981, the Commission granted in part and denied in part the Citizens’ petition. Order No. 10162-A was also entered to amend Order Nos. 9864 and 10162.

The first issue that Public Counsel presents for our review is whether the allowance of projected construction work in progress (CWIP) in the rate base is prohibited by section 366.06(2), Florida Statutes (1979), and conflicts with prior decisions of this Court. The statute reads, in applicable portion:

The commission shall investigate and determine the actual legitimate costs of the property of each utility company, actually used and useful in the public service, and shall keep a current record of the net investment of each public utility company in such property which value, as determined by the commission, shall be used for rate-making purposes and shall be the money honestly and prudently invested by the public utility company in such property used and useful in serving the public ....

Although Public Counsel does not challenge the projected test year concept generally, he argues that section 366.06(2) prohibits the inclusion of projected test year CWIP in the rate base. His objection rests on the directive to determine the “actual legitimate costs of property .. . actually used and useful in the public service” and that it “keep a current record of the net investment of each public utility in such property which value ... shall be used for rate making purposes.” Public Counsel’s first contention is that the statute clearly limits the Commission to the use of historic cost data in calculating rate base. Apparently, he contends that “current record” refers exclusively to a record of investment that has already been made at the time the rate increase petition is filed. Florida Power argues that the statutory language is only intended to prevent the use of outdated information and to ensure that the most up-to-date data is employed in predicting what the utility’s requirements will be during the period in which the new rates will be in force and, therefore, it is consistent with the function of rate-making to permit the Commission to use the record it has at the time rates are set as its “current record.”

We find no basis to distinguish between using projected CWIP as opposed to using any other projected component of rate base. The projected test year 1980 in the case sub judice had become an historic test year by the time the full hearings were commenced in January of 1981. There was a deviation between the projected CWIP allowed and historic CWIP of 1.4%. However, the actual net operating income of Florida Power on a systemwide basis was shown to be less than what had been projected by the company. The end result was greater actual revenue requirements than those sought under the projected data. Inasmuch as Public Counsel has not challenged the projected test year concept generally and the Commission has concluded that an adequate basis has been provided for analysis of the projected test year, we find this portion of his argument to be without merit.

Having made this determination, we are left with the question of whether the statute or decisions of this Court prohibit inclusion of CWIP in rate base. This Court has ruled that section 366.06(2), Florida Statutes, does not prohibit the inclusion of CWIP in rate base. Shevin v. Yarborough, 274 So.2d 505 (Fla.1973). In Shevin, the Attorney General of Florida attacked the inclusion of CWIP on the basis that it failed to comport with the test applied by the Commission in a previous order. In response, the Court stated:

We have determined that the judgment of the Commission in this matter is in accord with the essential requirements of the law, supported by substantial competent evidence, and not a clear abuse of discretion.

Id. at 510. As illustrated by Shevin, inclusion of CWIP in rate base is a question of policy and Commission discretion. The policy should have a reasoned basis. Order No. 9864 provides an explanation of CWIP as a rate base adjustment. In that order the Commission sets forth some of the policy reasons and factors supporting its decision as follows:

The arguments for and against the inclusion of CWIP in rate base were fully developed before the Commission. Expenditures associated with construction may be accounted for in two ways. The interest costs may be capitalized through an Allowance for Funds Used During Construction, in which case no return is earned upon plant until it enters service. At that time such interest costs are recovered through higher depreciation rates. AFUDC appears on the current income statement in the form of non-cash earnings which are perceived as inferior in quality by investors.
Alternatively, CWIP may be included in rate base. In this situation, the utility earns a present return on its investment in new construction, and no allowance for funds is recorded on that portion of CWIP included in rate base. The advantages of this alternative included greater cash flow and a higher quality of earnings, which should translate into lower perceived risk and a lower cost of capital. These aspects are especially beneficial in a situation involving a substantial construction program and a need for external financing. In addition, use of this alternative leads to a more gradual phasing in to the rate base (which is supported by rates charged to customers) of the large investments associated with new plant, as contrasted with the revenue requirement “jolt” which occurs when a utility requests approval of rates designed to provide a return on the total value of the new plant when it is placed into service.

Order 9864, Docket No. 800119-EU, at Sheet 5. In Order No. 10162, which amended Order No. 9864, the Public Service Commission also stated:

Having considered the position of the parties, we are persuaded that inclusion of an appropriate amount of CWIP in rate base constitutes a sound regulatory practice, and one which will realize net advantages over the long run in this case....
Earnings on CWIP are real earnings, as opposed to the paper earnings made when relying upon AFUDC. The superior quality of earnings on CWIP is perceived by the investment community and reduces the cost of capital of a utility. Public utilities in Florida (and throughout the nation) are faced with extremely high capital financing costs at this time. Requiring a utility to carry these unrecov-ered financing costs, as opposed to relying in part on earnings on CWIP, places a burden on the utility that cannot justify reliance on AFUDC paper earnings. Florida is a growing state and, even though extensive conservation activities have been initiated, electric utilities in this state must obtain sufficient capital to meet their obligation to construct capacity to meet this growth. Placing CWIP in the rate base reduces the extreme burden of such construction requirements by providing real earnings, instead of paper earnings, as a means of attracting capital at reasonable rates.

Order No. 10162, Docket No. 800119-EU, at Sheet 4.

The standard on review is whether competent, substantial evidence supports a Commission order. Citizens v. Hawkins, 356 So.2d 254, 259 (Fla.1978); De Groot v. Sheffield, 95 So.2d 912 (Fla.1957). Orders of the Commission come before this Court clothed with the presumption of validity. On review this presumption of validity can only be overcome where the Commission’s error either appears plainly on the face of the order or is shown by clear and satisfactory evidence. General Telephone Co. v. Carter, 115 So.2d 554, 556-57 (Fla.1959). As this Court stated in Shevin:

[W]e will not overturn an order of the Commission because we would have arrived at a different result had we made the initial decision; something more is needed. However, we will not affirm a decision of the Commission if it is arbitrary and unsupported by substantial competent evidence, or in violation of a statute or a constitutionally guaranteed right.

274 So.2d at 509.

A review of the record demonstrates that there was considerable evidence on this issue presented before the Commission. Testimony in favor of inclusion of CWIP in rate base was given by John D. McClellan. Mr. McClellan cited several benefits associated with the inclusion of CWIP in rate base. Mr. McClellan testified, in part, that:

While current recovery involves higher rates in the short run, it is more than offset by lowered overall costs. (R. Vol. 17, pp. 2056, 2058). The actual cost to consumers, when measured on a present value basis, will be the same under current recovery as under the AFUDC approach. There are economic and financial factors, however, which may be expected to reduce the costs under current recovery and to give the rate payers a benefit in the long run.

He went on to enumerate other advantages which included:

(1) Financial benefits; including improved cash flow, reduced risk, reduction of capital costs, long term decrease in cost of services, and improved coverages;
(2) Smoother rate increases as a result of the gradual phasing in of rate base additions that accompanies the CWIP approach. This avoids dramatic impacts to the public;
(3) Possible reduction of ad valorem taxes;
(4) Pricing signals reflecting increased costs more quickly;
(5) The impact of price elasticity is leveled out and energy conservation may be accelerated.

We are unable to agree with Public Counsel’s contentions that the Commission’s decision on this issue shows a clear abuse of discretion on the part of the Commission. The burden is on the party claiming the order of the Commission to be invalid, arbitrary, or unsupported by the evidence. Shevin, 224 So.2d 505 at 508. Fogarty Bros. Transfer Inc. v. Boyd, 109 So.2d 883 (Fla.1959). Public Counsel has not met this burden. The Commission has set forth its policy reasons for including CWIP in this case and such policy has a reasoned basis. We find the decision of the Commission to include approximately $207 million of CWIP in the rate base to be supported by substantial competent evidence, and not in violation of a statute or constitutionally guaranteed right and, therefore, we must affirm on this issue.

The next issue presented is whether the Commission erred in granting the interim rate increase. Public Counsel contends that this Court’s decision in Maule Industries v. Mayo, 342 So.2d 63 (Fla.1976), precluded an award of interim rate relief on any basis other than an historic test year. Public Counsel relies on a footnote in that opinion wherein this Court stated:

Section 366.06(4) authorizes Commission action to suspend rates for up to 8 months after their filing ‘pending a final order ... in any rate proceeding .... ’ (emphasis added [by the court]). Technically, it is not necessary for a utility to file a separate request for interim relief since the statute operates to make it available in conjunction with all rate relief requests. It follows, of course, and we so held in the Gulf Power case [333 So.2d 1 (Fla.1976) ], that the interim rate procedures enacted in 1974 are an integral part of the general and more elaborate process for obtaining rate increases. See also Citizens of Florida v. Mayo (Florida Power Corp.), 316 So.2d 262, 264 (Fla.1975). As such, an interim award could never be requested or granted on the basis of a test year different from that used as a basis for the permanent rate increase request. The Commission erred in allowing FP & L to ’employ a different year for the temporary and partial portion of its permanent and full request. Although that error complicated the accounting aspects of this case, our disposition of the interim rate award makes it unnecessary to solve the accounting difficulties. The procedures used in this case demonstrate why, as a result of the enactment of file and suspend procedures for Florida utilities, these companies may now find it undesirable to file rate hike requests on the basis of a ‘projected’ test year, as was done here. They may, rather, have to choose between that accounting mechanism to minimize regulatory lag and the use of an historic accounting test year on the basis of which they can justify immediate rate relief under the new statutory mechanism. The handicap in being forced by the new statutory scheme to make that choice is not apparent, however. We note that in this proceeding, without any serious discussion or argument, FP & L obtained the benefit of four utility-favoring techniques of rate-making — the file and suspend procedure, the use of a year-end rate base, the benefit of automatic fuel adjustment clauses, and the use of a projected test year.

Id. at 66 n. 5.

Maulé was one of the first cases filed under the “file and suspend” procedure of section 366.06(4), Florida Statutes (1979). In Maulé, Florida Power & Light (FP & L) had filed its rate application in August, 1974, seeking permanent and interim rate increases based on a partly projected test year ending in December, 1974. The Commission suspended FP & L’s proposed interim rates, which were based on the partly projected data, but later granted an interim increase when FP & L supplied data based on a fully historic year ending in September. This Court ruled that the Commission erred in granting an interim increase based on a test year different from that on which the permanent rate petition was based. We think it is wrong to suggest that the footnote in Maulé was a judicial determination that interim rate relief is never available in a projected test year case. The Court was merely acknowledging the Commission’s demonstrated reluctance at that time to base interim rates on projected data.

Public Counsel contends that this Court’s recent decision in United Telephone Co. v. Mann, 403 So.2d 962 (Fla.1981), prohibits the Commission from basing interim rates on anything but “known and easily meas-ureable changes which have caused the utility’s rates to be unjust and unreasonable.” Id. at 967 (footnote omitted). He asserts that projected data is neither known nor easily measurable but gives no basis for this assertion. In United Telephone, this Court upheld the Commission’s refusal to consider at an interim hearing extensive supplemental testimony concerning the cost of common equity in the calculation of the rate of return after having received substantial previous testimony on the point. The Court was clearly upholding the Commission’s discretion to determine, on a case by case basis, what evidence it will consider in fixing interim rates.

The statutory standard imposed upon the Commission is to fix “fair, just and reasonable rates.” §§ 366.06(2), 366.05(1), Florida Statutes (1979). This Court has consistently recognized the broad legislative grant of authority which these statutes confer and the considerable license the Commission enjoys as a result of this delegation. As noted earlier, the Commission’s approval of a 1980 test year in this case was made against a background of five years of experience under the File and Suspend Law after Maulé. In addition, through the workshops resulting in the approval of the test year, the Commission evaluated operating characteristics peculiar to Florida Power and familiarized itself with sophisticated methods of projecting data which demonstrated the need for increased rates. Having approved the use of a 1980 test year on this background, the Commission could adequately evaluate projected data in conformance with its statutory obligations.

The purpose of section 366.06(4), which gives the Commission the authority to award interim relief, is to protect utilities from the “regulatory lag” associated with full blown rate proceedings. Florida Power Corp. v. Hawkins, 367 So.2d 1011, 1013 (Fla.1979). In Citizens of Florida v. Mayo (Gulf Power Co.), 333 So.2d 1 (Fla. 1976), this Court analyzed section 366.06(4), the File and Suspend Law, and the legislative intent underlying its enactment. It is clear that the evidentiary basis for an interim increase need not be subject to the same intense scrutiny, cross-examination, and adversarial contest as is required in the final public hearings. Where, however, the Commission chooses to conduct public hearings in an interim rate proceeding, intervenors, including Public Counsel, will be afforded all procedural due process rights to insure their effective participation. 333 So.2d at 7. As this Court stated in Gulf Power:

Whether public hearings are scheduled or not, the test to support an interim rate increase should be whether the Commission had additional or corroborative data on which to grant temporary rate relief at the time that it lifts its suspension— data which it did not initially have, or data which clarifies or amplifies matters initially found to be inadequate. The requisite showing, naturally, will vary from case to case, and judicial review of an interim award will be premised on the traditional test of whether the award is supported by competent and substantial evidence. Section 120.68(10), Florida Statutes (1975).

Id. at 7.

The record shows that when the Commission suspended Florida Power’s proposed rates, the Commission requested Florida Power to supplement its initial filing by providing the assumptions underlying its projections and the justifications for each assumption. After receiving the requested clarifying information, the Commission lifted its suspension and authorized Florida Power to collect increased interim rates, subject to refund. The Commission concluded that Maulé did not prohibit the interim awards and that Florida Power had sufficiently demonstrated “a present need for an interim increase in revenues, as indicated by results projected for calendar year 1980 and corroborated by the historical data furnished by the Company.” We find no departure from established procedures for setting interim rates in this case. Instead, those procedures were, if anything, more scrupulously followed in this case than in an historic test year case.

If Florida Power had not been permitted to collect interim rates during the 1980 test year, it could never recoup even a portion of the revenue shortfall experienced during that year, which shortfall was later confirmed by the actual historical data filed prior to the conclusion of the final hearing. The whole purpose of interim awards is to reduce regulatory lag; the sooner new rates can be implemented on an interim basis, the better the purpose of section 366.06(4) is served. We also affirm the Commission’s interim rate award.

The final issue presented for our review is whether the Commission erred by allowing the increased permanent rates to apply to consumption oecuring prior to the date Order No. 9864 was filed. The Commission set the effective date under section 366.072, Florida Statutes, (Supp.1980), which provides:

Any order issued by the [Florida Public Service] commission adjusting general increases or reductions of the rates of an electric ... company shall be reduced to writing ... within 20 days of the official vote of the commission. Within said 20 days, the commission shall also mail a copy of the order to the clerk of the circuit court of each county in which customers are served who are affected by the rate adjustment .... The commission shall notify all parties of record in the proceeding of the date of such mailing. Such an order shall not be considered rendered for purposes of appeal, rehearing, or judicial review until the date the copies are mailed as required by this section. This provision shall not delay the effective date of the order. Such an order shall be considered rendered on the date of the official vote for the purposes of §§ 364.05(4) and 366.06(4).

Public Counsel contends that section 366.-072 is inapplicable and that the effective date of the new rates is prescribed solely by section 120.52(9), Florida Statutes (1979), which defines a “final order” with reference to the time the written order is filed. Section 120.52(9) provides, in pertinent part:

“Order” means a final agency decision which does not have the effect of a rule.... (A)n agency decision shall be final when reduced to writing and filed with the person designated by the agency as clerk.

We cannot agree with Public Counsel’s contention.

The Administrative Procedure Act (chapter 120, Florida Statutes) clearly ascribes only two functions to the concept of a final “order” as defined in section 120.-52(9). One is that an order may not be judicially reviewed until it satisfies section 120.52(9). § 366.072, Fla.Stat. (Supp.1980). The other is that the agency’s decision may not be enforced under section 120.69 until it is reduced to written form and filed under section 120.52(9). Section 120.52(9) does not deal with the effective date of the order. Section 366.072 clearly deals with the effective date of a Commission action dealing with any rate proceeding under section 366.06. The rule in Florida is that where the language of the statute is so plain and unambiguous as to fix the legislative intent and leave no room for construction, the courts should not depart from the plain language used by the legislature. Carson v. Miller, 370 So.2d 10 (Fla.1979). In addition, another controlling tenet of statutory construction is the rule that words of common usage, when used in a statute, should be construed in their plain and ordinary sense. Tatzel v. State, 356 So.2d 787 (Fla.1978). Section 366.072 clearly and unambiguously states that orders of the Commission are effective on the date of the vote of the Commission for purposes of the “File and Suspend” law. Section 366.072 clearly authorizes the Commission’s action in this proceeding. This provision delays the running of the appeal time (or rehearing time) until everyone has a written order, but makes the rate adjustment effective on the date of the Commission’s vote. This is certainly the most reasonable interpretation of the statute. Accordingly, Order No. 9864, as amended by Orders 10162 and 10162A, is affirmed in its entirety.

It is so ordered.

ALDERMAN, C.J., and BOYD, OVER-TON, McDonald and EHRLICH, JJ., concur.


author: ADKINS, Justice. OVERTON, Justice,

text:
    Eugene PITTS, Petitioner, v. STATE of Florida, Respondent.
    No. 61086.
    Supreme Court of Florida.
    Jan. 6, 1983.
    Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, Eleventh Judicial Circuit, Miami, for petitioner.
    Jim Smith, Atty. Gen. and Janet Reno, State Atty. and Ira N. Loewy, Asst. State Atty., Eleventh Judicial Circuit, Miami, for respondent.
   ADKINS, Justice.

Eugene Pitts, the petitioner (hereinafter referred to as defendant), in this case, seeks review and reversal of the decision of the Third District Court of Appeal in State v. Pitts, 400 So.2d 549 (Fla. 3d DCA 1981). Conflict is alleged between Pitts and the cases of Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981). We have jurisdiction. Article V, § 3(b)(3), Fla.Const.

The facts surrounding the incident giving rise to the instant case are not at all clear. Defendant and one Willie Williams were involved in a bar room fracas which resulted in Williams’ being wounded by a gun possessed by defendant. It seems as though both men argued shortly before the shooting incident. Defendant was removed from the bar. He returned shortly, and according to him, was attacked by Williams. A defense witness testified that he heard shots fired after Williams attacked defendant. Williams testified that defendant reentered the bar with a gun in his hand. One of the security guards at the bar also testified that he saw defendant standing inside of the bar holding a firearm.

Defendant was charged with aggravated battery and possession of a firearm during the commission of the aggravated battery.

The jury found defendant not guilty of the aggravated battery charge but they found him guilty of the possession charge. The trial court granted defendant’s motion in arrest of judgment and entered an order to that effect. In her order the judge found the verdicts to be legally inconsistent. She also found that based on the jury’s acquittal on the aggravated battery charge the jury must have also found lacking an essential element of the possession charge.

The district court reversed the order arresting defendant’s judgment and conviction on the possession charge based on an earlier holding by that court in McCray v. State, 397 So.2d 1229 (Fla. 3d DCA 1981). Defendant seeks review of this decision.

Defendant argues that his acquittal on the aggravated battery charge requires that his conviction on the possession charge be vacated according to the rule established by this Court in Mahaun v. State and Redondo v. State.

We disagree.. In Mahaun the defendant, Patricia Mahaun, was charged with third-degree felony murder and aggravated child abuse. Aggravated child abuse was the underlying felony in this case and was an essential element of the felony murder. The jury did not find defendant guilty of aggravated child abuse or attempted aggravated child abuse. She was found guilty of culpable negligence, a lesser included misdemeanor. We reasoned that because defendant’s conviction for culpable negligence effectively held her innocent of the aggravated child abuse charge, and because the aggravated child abuse felony was an essential element of the felony murder, she could not have been guilty of third-degree felony murder. The jury’s verdict of guilty of third-degree felony murder was clearly legally inconsistent with its verdict of guilty of culpable negligence.

The facts of Mahaun do not apply to the instant case. Here defendant was charged with aggravated battery with a firearm and possession of a firearm while engaged in the aggravated battery. He was acquitted on the aggravated battery charge but was convicted on the possession charge. The trial judge instructed the jury that:

It is a crime for any person to display, use, threaten or attempt to use a firearm while committing or attempting to commit a felony. The essential elements of this offense which must be proved beyond a reasonable doubt before there can be a conviction in count two are that, one, the defendant did commit or attempt to commit the felony of aggravated battery; two, while committing or attempting to commit the aggravated battery the defendant displayed, used, threatened or attempted to use a firearm.

(Emphasis added); This instruction makes it clear that the jury’s acquittal on the aggravated battery charge did not preclude its finding of guilt on the possession charge. The occurrence of an aggravated battery is not a prerequisite to a finding of guilt on the possession charge. An attempted aggravated battery is sufficient, and while the jury made no explicit finding of an attempted aggravated battery, it is a logical and plausible inference on their part based on the evidence before them. And more important, unlike what transpired in Ma-haun, it is not inconsistent with their ultimate finding of fact. No further inquiry into the thought process of the jury is necessary or permissible. The jury could find defendant guilty of the possession charge in accordance with the instructions they were given.

Defendant also argues that our holding in Redondo requires that his conviction be vacated. For the same reasons, we disagree.

Redondo, with facts similar to those in this case, is also inapplicable. In that case defendant was convicted of simple battery and unlawful possession of a firearm while engaged in the commission of a felony, aggravated battery. The conviction for simple battery effectively rendered defendant not guilty for aggravated battery or attempted aggravated battery, essential elements of the crime of possession of a firearm during the commission of the aggravated battery. The jury in the instant case made no finding, as did the jury in Redon-do, that would preclude their finding defendant guilty of the possession charge.

In both cases cited by defendant the jury returned verdicts that were legally inconsistent in that an essential element of the crime for which the jury found defendant guilty was missing by virtue of its other verdict. Here the jury made no such affirmative finding that defendant was guilty of a lesser included offense of the crime of aggravated battery. Such a finding would have brought this case within the ambit of our holdings in Mahaun and Redondo, but that is not the case.

■ We approve the decision of the district court and remand this cause to the district court for further remand to the trial court with instructions to vacate its order in arrest of judgment and sentence defendant accordingly.

It is so ordered.

ALDERMAN, C.J., and McDONALD and EHRLICH, JJ., concur.

OVERTON, J., dissents with an opinion, with which BOYD, J., concurs.

OVERTON, Justice,

dissenting:

I dissent because I find that Mahaun v. State, 377 So.2d 1158 (Fla.1979), and Redondo v. State, 403 So.2d 954 (Fla.1981), control this situation. Pitts was charged with aggravated battery and with possession of a firearm during the commission of the aggravated battery. The jury found Pitts not guilty of the aggravated battery charge but guilty of the possession charge. I agree with the trial judge that the verdicts are legally inconsistent. The charges against Pitts arose from a single incident. Further, an essential element of the offense of possession of a firearm during the commission of an aggravated battery is that the jury find that an aggravated battery was committed.

The majority reasons that there was a basis for these inconsistent verdicts because the jury could have found that Pitts was guilty of attempted aggravated battery. I cannot accept this reasoning because in this case the jury was not given an instruction that an attempted aggravated battery was a lesser included offense. Nor was a definition of “attempt” given in the instructions as required by the Standard Jury Instructions. There is absolutely no distinction between this case and Redondo. I could better understand the majority view if it had expressly overturned Redondo and Ma-haun. This decision leaves the law in this area in absolute chaos. Given Redondo, Mahaun, and this decision, trial judges will be unable to determine when verdicts are legally inconsistent. I would quash the decision of the district court with directions to reinstate the order of the trial judge.

BOYD, J., concurs.


author: FRANK D. UPCHURCH, Jr., Judge.

text:
    Beatrice GUEST, James H. Guest, and Carole M. Giltz, Appellants, v. Willis M. ANDERSON and Lago Vista, Inc., et al., Appellees.
    Nos. 81-524, 81-525.
    District Court of Appeal of Florida, Fifth District.
    Aug. 11, 1982.
    Rehearing Denied Jan. 31, 1983.
    William B. Mesmer of Baker & Hostetler, Orlando, for appellants Guest.
    C. Jeffery Arnold of Arnold, Matheny & Eagan, P.A., Orlando, for appellee Daniel L. Carr, Inc.
    Roger A. Kelly and James E. Foster of Fishback, Davis, Dominick & Bennett, Orlando, for appellee Orlando Masonry, Inc.
   FRANK D. UPCHURCH, Jr., Judge.

Appellants Beatrice and James Guest appeal from orders determining liability in favor of appellees Orlando Masonry, Inc., and Daniel Carr, Inc., in an action to recover on a bond in a construction case.

As to the portion of the orders determining that appellants were liable on the bond, we find no error and affirm. However, as to the portion of the order determining that appellee Daniel Carr had substantially performed its contract, we reverse. We find that the pleadings and proof on summary judgment raised as an issue whether Carr had substantially performed in accordance with the contract plans and specifications. Therefore, we reverse and remand for trial on this issue.

AFFIRMED in part and REVERSED and REMANDED in part.

ORFINGER, C.J., and DAUKSCH, J., concur.

      . Appellants raised as a counterclaim that Carr had not performed in accordance with the plans and specifications. The trial judge may have been of the opinion that failure to comply with the contract was an affirmative defense rather than a counterclaim and should have been so designated by appellants. However, Florida Rule of Civil Procedure 1.110(d) provides that when a party has mistakenly designated a defense as a counterclaim, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation.


author: ANSTEAD, Judge.

text:
    Cecil GRIMMETT, Appellant, v. Bonnie GRIMMETT, Appellee.
    No. 81-1833.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.

      Bruce E. Friedman, of Sherman & Ray-son, Fort Lauderdale, for appellant.
    Thomas D. Lardin of Weaver & Weaver, P.A., Fort Lauderdale, for appellee.
   ANSTEAD, Judge.

This is an appeal from a final judgment of dissolution which ordered a division of the parties’ marital assets 75% — 25% in favor of the wife. We reverse.

The wife filed a petition for dissolution in which she alleged that the parties had substantially agreed to an equal division of all assets except for two parcels of jointly owned real estate, the marital residence in Broward County which the wife occupied and the other a small farm in Brooksville, Florida. She sought an award of the marital residence to herself and the farm to her husband with the proviso that should the farm be sold she would receive one-half of the sales price in excess of $50,000.

The facts are not in dispute. The parties were the only witnesses at trial. Their testimony indicated that they had been married for 25 years and had three adult children. Financially they occupied virtually equal positions; both had worked during the entire course of the marriage and had approximately equal earning capacities. The wife also owned a residence that she had recently inherited from her father and in which she was allowing the husband to temporarily reside. The husband claimed no interest in this property. The trial court concluded that because of the equal status of the parties there should be no award for alimony or attorney’s fees. However, the court also concluded that because of the wife’s contribution to the marriage as a housewife and wage earner, she should receive 75% of the marital assets and the husband 25%.

Under current Florida law the parties to a marriage are entitled to an equitable distribution of the marital assets upon dissolution. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974). In order to determine a proper division of the marital assets trial courts are authorized to consider the nature of the marital partnership arrangement involved and the role played by each partner during the course of the marriage. Ideally, there will be an explicit agreement by the parties as to their respective roles and interest in the accumulated assets. In most instances, however, the nature of the arrangement must be determined by an examination of the actual contribution and role of each partner during the marriage. For example, in Tommaney v. Tommaney, 405 So.2d 454 (Fla. 2d DCA 1981), the Second District affirmed an equitable distribution of marital assets that favored the wife where there was evidence that the wife’s “contributions to the marriage were so extraordinary as to entitle her to a special equity in the home.” In that case the court noted:

This is not simply a case in which the wife earned more than her husband. See Holbrook v. Holbrook, 383 So.2d 981 (Fla. 4th DCA 1980). Nor is it a case in which the wife contributed her earnings to the purchase of a home and the husband used his to support the family.. See Hoch v. Hoch, 380 So.2d 499 (Fla. 2d DCA 1980). Here, not only did Mrs. Tommaney earn the most income while performing the duties of a housewife, she also paid for the home, provided most of the support for the family, and enabled her husband to meet his child support obligations. Hence, the court could find that this is one of the exceptional cases in which a special equity may rest upon an extraordinary contribution to the marriage. While another judge might have felt that Mrs. Tommaney’s contributions were not extraordinary enough, we believe there was sufficient evidence in the record to support this judge’s determination.

Although there was no express marital agreement in the case at hand, the parties’ testimony indicated that they had shared equally in the responsibilities and benefits of the marital relationship. There was no claim by either that the other had benefited more or worked less in the marriage. That being the case, we believe the marital assets should have been distributed in substantially equal shares upon dissolution. Indeed, it appears that this was substantially what the wife was seeking when she requested that she be awarded the marital residence and the husband be awarded the Brooksville property with allowances for any discrepancies in value between the two properties. Upon remand the parties will have another opportunity to propose to the trial court alternative means to accomplish an equitable distribution of the marital assets.

Accordingly, we reverse the final judgment and remand this cause to the trial court for further proceedings in accord herewith.

BERANEK and HURLEY, JJ., concur.


author: BERANEK, Judge, GLICKSTEIN, Judge, ANSTEAD, Judge,

text:
    Felicia M. TRONCONI, Appellant, v. Francis Joseph TRONCONI, Appellee.
    No. 81-525.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 1982.
    Rehearing Denied Feb. 9, 1983.

      Ira Marcus, P.A., Fort Lauderdale, for appellant.
    Philip Michael Cullen, III, Fort Lauder-dale, for appellee.
    Melvyn B. Frumkes and Cynthia L. Greene of Law Offices of Melvyn B. Frumkes, P.A., Miami, Stephen W. Sessums and Miriam E. Mason, of Law Offices of Stephen W. Sessums, P.A., Tampa, amicus curiae on behalf of The Family Law Section of The Florida Bar.
   The wife here appeals the trial court’s equitable distribution of two parcels of Florida real estate located in Pompano Beach and Lake Placid, Florida and another in the Bahamas. All of these properties were held as tenants by the entirety and purchased during the marriage, largely with joint funds. We affirm.

During this marriage, which produced no children and lasted for twenty-six years, both the husband and wife worked full time. At the time of the hearing, both were sixty years old. The wife was in fairly good health and still working, while the husband was in poor health with ulcers and a mental disorder, unable to work then or in the foreseeable future, with unemployment compensation constituting his only source of regular income.

Within this factual framework, the trial judge found that “neither party had established a special equity in any of the real property,” that “physical partition of the realty would not be in the best interests of either party” and that his announced disposition of the property would result in an “equitable division of the parties’ assets.”

Pursuant thereto, he awarded a portion of the real estate holdings to the one and the remainder to the other in what the record supports as an approximately equal division of the equities involved. No periodic or rehabilitative alimony was awarded. To all of this, the wife takes great exception.

In affirming the trial judge, we adopt the doctrine of equitable distribution and revisit Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981). In Sangas, we were dealing with what was essentially an inequitable and improper distribution favoring one spouse over the other in a manner not justified by the facts of the case. It is true that in Sangas we opined that Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), did not create a totally new vehicle for the division of property; however, we now think, after further analysis of Canakaris and its progeny, that although the Supreme Court continues to quote traditional concepts in the vernacular of lump sum, periodic and rehabilitative alimony, we believe it has adopted the doctrine of equitable distribution de facto if not de jure. The Cana-karis decision uses the word “equity” in its various forms thirteen times. “Justice,” “justified” or “justification” appears twelve times and the phrase “equitable distribution” twice. In our view the totality of the language there employed, coupled with the accompanying dissertation on the trial judge’s “broad discretion” obviously permits a trial judge to make a distribution of assets acquired during the marriage in a manner which is just and equitable: ergo, make an equitable distribution.

There is an important new twist which emerges from Canakaris. One of the two basic criteria traditionally employed to support lump sum awards has been deep sixed and is never once referred to in the opinion in the context of lump sum. “Ability” to pay remains but “need” has been excised and instead the word “justification” substituted. For emphasis, we quote from the opinion:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability .... At 1201.

It is this substitution that appears to make the whole equitable distribution doctrine viable. We could never before have said that the wife “needs” Blackacre and the husband “needs” Whiteacre, each of equal value. Nevertheless, we can “justify” such a distribution and we readily do so regarding the real estate sub judice. In sum, when speaking of the former traditional requirements, we were required to find need plus ability to respond, whereas under Canakaris we no longer have to find need to support lump sum awards. Instead, the necessary coupling is justification and ability to respond.

Subsequent cases appear to confirm our conclusion. In Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), the court spoke of providing “an equitable share of the assets of the parties accumulated during their marriage, as distinguished from her need for support ... if it is found necessary to compensate the wife for her contribution to the marriage” (emphasis supplied). Subsequently in Robinson v. Robinson, 403 So.2d 1306 (Fla.1980), the court held that, “awarding lump sum alimony to ensure equitable distribution of property acquired during the marriage is within the trial court’s discretion so long as there is some justification for the award and the paying spouse is financially able to make the payment” (emphasis supplied). Even more recently in Hill v. Hill, 415 So.2d 20 (Fla.1982), the Supreme Court again spoke approvingly of the “fair division of property acquired during the marriage.”

We stress that this opinion applies only to assets acquired during the marriage and we specifically do not address its applicability to assets acquired by inheritance or gift or whether it might encompass the value of a personal professional degree. Nor do we suggest that an equitable distribution must be carried out automatically in every case. Other more traditional methods are still available in the sound discretion of the trial judge. Further as Cana-karis notes, an “equitable” distribution does not require an “equal” distribution. The two words are not synonymous. When an equitable distribution is invoked it may well take the place of lump sum alimony or any special equity. However, any such equitable distribution may be influenced by factors indicating the presence of a special equity or any concomitant award of periodic alimony.

He or she who seeks an equitable distribution should set it forth in the pleadings. However, in the interests of justice, we make this suggestion prospective only. Moreover it should be remembered that equitable distribution can involve an award of the wife’s property to the husband as well as vice versa. See Roffe v. Roffe, 404 So.2d 1095 (Fla. 3d DCA 1981); Ingram v. Ingram, 379 So.2d 955 (Fla.1980).

As to the standards to be used to effectuate equitable distribution, the court in Canakaris contented itself with quoting the last paragraph of Section 61.08, Florida Statutes (1979) which says:

The court may consider any other factor necessary to do equity and justice between the parties.

However we see no reason why the provisions of subsection (2)(a) through (f) of the same section should not also be applicable to an equitable distribution and we have considered them relative to our conclusion in this case. It is tempting to enumerate a more complete laundry list of guidelines. Perhaps however this is better left to the legislature or our Supreme Court. Meanwhile, we note the proposed legislation being pushed by the Family Law Section of the Florida Bar which sets forth guidelines which do not appear to be inappropriate.

AFFIRMED.

LETTS, C.J., and DOWNEY, HERSEY, DELL and WALDEN, JJ., concur.

BERANEK, J., with whom HURLEY, J., joins, concurs specially with opinion.

GLICKSTEIN, J., with whom HURLEY, J., joins, concurs specially with opinion.

ANSTEAD, J., concurs specially with opinion.

BERANEK, Judge,

with whom HURLEY, Judge, joins, concurring in the judgment only:

I concur in the result reached by the majority but on different grounds. Under the majority view of Canakaris, the award here can be sustained as a “justified” award of lump sum alimony. In Sangas v. Sangas, supra, we held that equitable distribution was not a totally new vehicle for the division of property. The majority now seems to recede from that holding. If we are not receding, there is obviously no reason to consider this case en banc. See Rule of Appellate Procedure 9.331. We are apparently now holding equitable distribution to be a totally new vehicle, but I am not at all certain how it differs from the “more traditional” concepts of alimony and special equities. Strangely, the guidelines suggested by the majority opinion are a simple reference to Section 61.08, Florida Statutes (1979), which is the statute governing awards of alimony. If the guidelines are the same, what is the difference? We now know that lump sum alimony has been redefined by abrogating “need” and substituting “justification.” I am unable to distinguish between equitable distribution and the newly defined “justified lump sum alimony.” I submit that equitable distribution is simply a goal or an end — which- is to be achieved through the avenues of alimony and special equities. Canakaris only broadened the definitions of these avenues and also broadened the discretion of the trial judge in achieving the laudable goal of an equitable division or distribution.

I disagree with the majority view that a trial judge has discretion to employ the “more traditional” concepts (alimony and special equity) to the exclusion of equitable distribution or to use equitable distribution and ignore alimony and special equities. The uncertainty created by this approach will be comfortable for the courts but further cloud an already murky situation for the litigants.

GLICKSTEIN, Judge,

with whom HURLEY, Judge, joins, concurring specially:

Although I join in the result and agree with much of what is said in the majority opinion, I am troubled by the following language:

In affirming the trial judge, we adopt the doctrine of equitable distribution and revisit Sangas v. Sangas, 407 So.2d 630 (Fla. 4th DCA 1981). In Sangas, we were dealing with what was essentially an inequitable and improper distribution favoring one spouse over the other in a manner not justified by the facts of the case. It is true that in Sangas we opined that Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), did not create a totally new vehicle for the division of property; however, we now think, after further analysis of Canakaris and its progeny, that although the Supreme Court continues to quote traditional concepts in the vernacular of lump sum, periodic and rehabilitative alimony, we believe it has adopted the doctrine of equitable distribution de facto if not de jure.

By way of preface, I am not troubled by the concepts or the labeling. If “equitable distribution” is to be a device recognized in Florida jurisprudence and “equity and justice” are to remain the goals, then those concepts and labels, as well as the guidelines to which the majority refers elsewhere in the opinion, appear very attractive.

What concerns me, however, is the choice of language the supreme court uses in Ca-nakaris (accent on the second “a”) and this court’s construction of the intent thereof. Throughout its opinion, the supreme court in Canakaris refers to Judge Rawls’ analysis in Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975). That opinion provides an in-depth study of alimony in Florida and concludes:

Lump sum alimony is no longer frowned upon in adjusting the material wealth of the parties at the time of dissolution of the marriage. The overriding tenor of this Court’s decisions in both Beard, supra [Beard v. Beard, 262 So.2d 269 (Fla. 1st DCA 1972)], and Thigpen, supra [Thigpen v. Thigpen, 277 So.2d 583 (Fla. 1st DCA 1973) ], is “a new day is born. Husband and wife are now truly partners in the marital venture sharing equal rights and obligations.”

Id. at 725-26 (footnote omitted).

As the majority opinion observes, the term “equitable distribution” is recited twice in Canakaris. What it does not say, however, is that on both occasions the supreme court’s discussion of the concept is tied to the device or vehicle of lump sum alimony which Judge Rawls had discussed earlier in Brown:

A judge may award lump sum alimony to ensure an equitable distribution of property acquired during the marriage, provided the evidence reflects (1) a justification for such lump sum payment and (2) financial ability of the other spouse to make such payment without substantially endangering his or her economic status. Brown v. Brown.
... This lump sum alimony award was clearly within the trial court’s discretion and was justified as part of an equitable distribution of the property of the parties acquired during their marriage.

382 So.2d at 1201-04.

Later, in Robinson v. Robinson, 403 So.2d 1306,1306 (Fla.1980), to which the majority also refers, the supreme court said in reference to Canakaris:

We held that awarding lump sum alimony to ensure equitable distribution of property acquired during the marriage is within the trial court’s discretion so long as there is some justification for the award and the paying spouse is financially able to make the payment “without substantially endangering his or her economic status.” Id. at 1201.

Even in Roffe v. Roffe, 404 So.2d 1095, 1096 (Fla. 3d DCA 1981), also cited by the majority, the Third District Court of Appeal said:

The wife claims error in the court’s award as lump sum alimony of her interest in a formerly-rent-producing residence, which at the time of the final judgment was being occupied by Mr. Roffe and their two minor children, whose custody he was granted. In the light of the fact that Mrs. Roffe was similarly granted the husband’s interest in the marital home where she lived, the reciprocal lump sum awards represent an appropriate exercise of the trial court’s power to fashion, by this device, an equitable distribution of the parties’ property — in other words, to “make a property settlement agreement” for them — which we think has been granted by Canakaris v. Canakaris, supra, and Ingram v. Ingram, 379 So.2d 955, 956 (Fla.1980); see Blum v. Blum [382 So.2d 52 (Fla. 3rd DCA 1980)], supra; Bird v. Bird, 385 So.2d 1090 (Fla. 4th DCA 1980); Lewis v. Lewis, 383 So.2d 1143 (Fla. 4th DCA 1980).

(Footnote omitted.)

The majority concludes that notwithstanding the court’s use in Canakaris of the phrase “equitable distribution” solely in connection with lump sum alimony, the court intended to adopt de facto the concept of equitable distribution as a device to achieve equity and justice. I admire what the majority seeks to do in reaching such conclusion; but even if the majority is correct, it would be wiser and infinitely more meaningful to certify the following question to the supreme court as one of great public importance:

WAS THE TERM “EQUITABLE DISTRIBUTION” AS INITIALLY USED IN CANAKARIS V. CANAKARIS, 382 So.2d 1197 (Fla.1980), INTENDED AS A VEHICLE OR DEVICE TO EFFECT EQUITY AND JUSTICE BETWEEN THE PARTIES OR AS THE CONCOMITANT GOAL TO BE ACHIEVED BY AWARDS OF LUMP SUM ALIMONY, RECIPROCAL AND OTHERWISE?

It seems unnecessary for this court to speculate when Justice Overton authored the opinions in Canakaris and Claughton v. Claughton, 393 So.2d 1061 (Fla.1980), was part of the per curiam in Robinson, and remains available on the court, which is accessible by means of certifying the above question. How can or why should this court attempt to divine, without assistance from the supreme court, what was intended by the language used — particularly when the majority is taking such an important step while minimizing the constant express tie between equitable distribution and lump sum alimony? Perhaps the answer to the question will be just what the majority seeks, adding stature — and authority — to their boldness and vision.

ANSTEAD, Judge,

specially concurring:

I find myself in agreement with almost everything that has been said by my colleagues in both the majority and the specially concurring opinions. To be certain all of these opinions agree on the result in the ease at hand, i.e., that the remedy fashioned by the trial court should be affirmed regardless of whether the remedy is approved as a form of lump sum alimony or equitable distribution. For that reason it may appear to the parties that the views expressed by the various members of this court are much ado about nothing. We have hardly reinvented the wheel.

For the most part the legislature controls the relief available to the parties upon the dissolution of a marriage. However, it has been left up to the courts to interpret the legislative enactments and determine the specific nature of the relief available to marital litigants. With respect to the disposition of marital assets the legislature has provided for some time that alimony, including lump sum alimony, may be awarded to either spouse and that in determining a proper award a trial court may consider any factor necessary to, do justice and equity between the parties. In carrying out this legislative mandate, however, the courts limited alimony awards, including requests for lump sum alimony, to those based on the needs of the requesting spouse and the ability to pay of the other spouse. In addition, lump sum awards have been restricted to those cases where unique circumstances indicated periodic alimony would not be suitable or adequate. As a result of this judicial gloss on the legislative provisions for lump sum alimony, property awards in dissolution cases have been closely tied to record title. With rare exception, and that in most cases involving the marital domicile, the parties have come out of a dissolution with an interest only in that property in which they had a record title interest at the time of dissolution.

The inequity of that situation has been most apparent in the case once described as the typical American marriage where the parties started out with little or nothing and approached the marriage as a partnership or joint venture with the wife devoting her full time to her duties as a wife and mother and the husband providing the living. Although the parties rarely articulated their expectations as to how assets accumulated during such a marriage would be divided, implicit in most such marriages was an understanding that such assets would be shared in some equitable fashion. The inequity occurred thirty years later when the marriage was dissolved and the husband, in whose name the substantial investments of the parties had been accumulated, usually as a matter of convenience, walked away with all of those assets and the wife, if she was lucky, was awarded some periodic alimony.

The first appellate decision of note to face up to the inequity of this state of affairs was Brown v. Brown, 300 So.2d 719 (Fla. 1st DCA 1974), cert. dismissed, 307 So.2d 186 (Fla.1975), wherein Judge Rawls announced that “a new day is born” and that lump sum alimony should be used as a means of redistributing the material wealth of the parties in accord with equitable principles. However, despite Brown, courts for the most part continued to limit the use of lump sum alimony and marital property continued being distributed in accord with record title. It was not until 1980, in the decision in Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), that the “new day” actually arrived in Florida. Canakaris belatedly launched the “new day” by approving Brown, thereby freeing trial judges from the judicial restraints previously imposed on the use of lump sum alimony.

In Canakaris judges were granted broad authority to utilize lump sum alimony as a means to ensure an equitable distribution of marital property based on the nature of the marital relationship and the role played by each partner, regardless of the record title of the property in question. To be certain Canakaris represented a major break from the prior case law that had restricted trial judges in their use of lump sum alimony and now authorized such judges to in effect fashion property settlements between the parties based on equitable principles. “Justification,” i.e., any reason predicated on valid equitable principles, was substituted for the prior “need” or “unique circumstances” previously required to justify a lump sum award. Ideally, there may be an explicit agreement between the marital partners as to their respective roles and their interests in the assets accumulated during the marriage. In most instances, however, trial judges will be required to fashion an equitable division of the marital assets based upon an examination of the actual role played by each partner and the contribution of each to the marital partnership. See Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA Case No. 81-1833, opinion filed Dec. 1st, 1982) (published simultaneously with this opinion).

In the case at hand we find ourselves gripped in a battle of semantics as to whether to label the Supreme Court’s adoption of this approach as an entirely new remedy of “equitable distribution” or as simply an approval of the use of the existing remedy of lump sum alimony free of the artificial and inequitable restraints previously placed on its use. I must agree that in reviewing Canakaris I find few of the trappings usually associated with the formal adoption of an entirely new doctrine as that doctrine may have been embraced legislatively or judicially in other jurisdictions. Rather, Canakaris simply seems to have endorsed the use of the existing remedy of lump sum alimony based on the standards previously articulated in Brown. This interpretation of Canakaris is also consistent with the view that the legislature has primary responsibility for determining the relief available upon dissolution. In this case it makes very little difference since this court appears to be of the unanimous view that the trial court acted well within its discretion in distributing the marital assets of the parties. Obligated as we are to place substance over form we should, therefore, approve the award and move on to the next ease.

      . There are other assets which were divided, but we find no error in this division. We treat only the real estate which constitutes the bulk of the parties’ assets.

      . There are other factual considerations, but the above set forth appear to be the most important and we deem them sufficient to support our conclusion.

      . (2) In a proceeding for dissolution of marriage, the court shall order such division of marital property as is equitable. The court shall set aside to each spouse his separate property and shall divide the marital property in such proportions as the court deems just after considering all revelant [sic] factors including:
      (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker.
      (b) The economic circumstances of the parties.
      (c) The duration of the marriage.
      (d) Any interruption of personal careers or educational opportunities.
      (e) The contribution to the personal career or educational opportunity of the other spouse.
      (f) The contribution of each spouse to the acquisition, enhancement, or improvement of the marital property and the separate property of the other party.
      (g) The existing liabilities of the parties in the acquisition and maintenance of marital property.
      (h) The results of any alimony awarded.