BARBARA A. MASSIS, APPELLANT,
v.
RADI S. MASSIS, APPELLEE
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Barbara Massis appeals a dissolution judgment that denied her any interest in the marital home, rehabilitative alimony, and attorney's fees. The court reverses the award of the entire marital home to her husband and remands for reconsideration of alimony and attorney's fees, holding that the home's appreciation during the marriage constitutes a marital asset subject to equitable distribution.
The court held that when marital funds and labor increase a non-marital asset's value, the appreciation becomes a marital asset subject to equitable distribution. The trial court must reconsider the home's distribution by determining what portion constitutes non-marital value exempt from distribution. The court also held that the trial court applied an improper standard in denying rehabilitative alimony and must reconsider whether such alimony is necessary based on the standard of living during the marriage and the wife's ability to become self-supporting. Finally, the court held that the trial court must determine a reasonable attorney's fee and allocate it appropriately between the parties.
[1] A separately owned non-marital asset may become in part a marital asset when its enhanced value is due to marital funds or labor.
[2] For the period when an asset is properly classified as a marital asset, the parties are entitled to an equitable distribution of any increase in value caused by inflation…
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Join FLexlaw to unlock all legal intelligence“A separately owned non-marital asset may become in part a marital asset when its enhanced value is due to marital funds or labor.”
Establishes the legal principle that appreciation of a separately titled asset caused by marital contributions becomes subject to equitable distribution
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Join FLexlaw to unlock all legal intelligenceThe parties were married eight years. Mrs. Massis worked in the family grocery business for its first three years and primarily cared for the home and…
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WENTWORTH, Judge.
Appellant, Barbara Massis, seeks review of a final judgment of dissolution of marriage by which she was denied any interest in the marital home, rehabilitative alimony, and her attorney’s fees. Appellee, Radi Massis, received primary residential responsibility for the two minor children of the marriage and child support. We find no abuse of discretion in awarding custody of the children and child support to Mr. Massis, but reverse the trial court’s award to Mr. Massis of the entire value of the marital home. We also remand the cause for reconsideration of the issues of rehabilitative alimony and attorney’s fees.
The parties had been married eight years at the time of dissolution. During those eight years Mrs. Massis’ primary efforts were in caring for the .home and family, and helping her husband establish a family grocery business. She worked for the family business full-time or part-time for its first three years of operation, and upon dissolution she received lump sum alimony in an amount representing her contribution to that businéss. Prior to the marriage Mrs. Massis worked as a cashier at a Pub-lix supermarket, and since the separation and divorce she has returned to this job.
Mr. Massis and his brother purchased the marital residence at a cost of $29,000 three years before the marriage. The appellant and appellee lived in the home during the entirety of their marriage, but at dissolution the home was still titled in the names of Mr. Massis and his brother. Mrs. Mas-sis did some renovation on the house during the marriage, and at dissolution the value of the home had increased by an amount between $15,000 and $28,000. In her petition for dissolution, Mrs. Massis requested that the trial court “equitably distribute the marital property.” The trial court noted that because the marital residence was titled in her husband’s name and because Mrs. Massis had “neither plead [sic] nor established a special equity” in the marital residence, she was denied any interest in it.
Marital assets are, of course, those assets which have been created or increased in value by the parties’ work efforts, services, or earnings. Turner v. Turner, 529 So. 2d 1138, 1141 (Fla. 1st DCA 1988). A separately owned non-marital asset may become in part a marital asset when its enhanced value is due to marital funds or labor. Id. For the period when an asset is properly classified as a marital asset, the parties are entitled to an equitable distribution of any increase in value caused by inflation or market conditions. Sanders v. Sanders, 547 So. 2d 1014, 1015 (Fla. 1st DCA 1989); Crapps v. Crapps, 501 So. 2d 661 (Fla. 1st DCA 1987).
In the present case mortgage payments were made from marital funds on the Massis’ marital residence during the eight years of their marriage. In addition, Mrs. Massis has demonstrated that she expended labor and marital funds in maintaining and renovating the home during the marriage. Because the “threshold requirement of marital labor or funds” has been established, some part of the current value of the marital residence is a marital asset, and this part is subject to equitable distribution.
Absent countervailing circumstances the starting point for equitable distribution of the value of a marital asset is a presumptive approximate equal division between the parties. Sanders at 1015; Annotation, Divorce: Equitable Distribution Doctrine, 41 A.L.R. 4th 481 (1985). In apportioning the value, however, the trial court must consider that the non-marital portion of the current value of the house, which is unrelated to either party’s management, oversight, or other contribution during the marriage, is subject to exclusion from equitable distribution. Id. The court's distribution plan in this case should therefore treat the current value of the home accordingly (including any enhancement due to inflation or market conditions), excluding only that portion of the value which the husband may establish as exempt because of its character as a non-marital asset. We recognize that there may be disagreement in this context on the issue of burden of proof,1 and we certify the following question to be one of great public importance:
DOES THE PARTY CLAIMING EXCLUSION OF A PORTION OF THE VALUE OF A MARITAL ASSET, AS EXEMPT FROM EQUITABLE DISTRIBUTION, HAVE THE BURDEN OF PROVING THE VALUE OF THAT NON-MARITAL PORTION OF THE ASSET?
We also remand the cause to the trial court to reconsider the denial of rehabilitative alimony. As the Florida Supreme Court noted in Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.1980): “The principal purpose of rehabilitative alimony is to establish the capacity for self-support of the receiving spouse, either through the redevelopment of previous skills or provision of the training necessary to develop potential supportive skills.” In evaluating the necessity for rehabilitative alimony, a court should consider that:
A person is not self-supporting simply because he or she has a job and income. The standard of living must be compared with the standard established during the course of the marriage.... A court must base an award of alimony to a wife upon the ability of her husband to pay that award and her financial needs in light of the standard of living she enjoyed during the marriage.
Askegard v. Askegard, 524 So. 2d 736, 737 (Fla. 1st DCA 1988), citing O’Neal v. O’Neal, 410 So. 2d 1369, 1371 (Fla. 5th DCA 1982).
We find that an improper standard in denying Mrs. Massis rehabilitative alimony is indicated by the trial court’s conclusion as follows: “Although the Wife now expresses an interest in employment in the real estate area when ‘things settle down’ no evidence was presented as to the Wife’s desire to further her education before or during the marriage. Under the circumstances, rehabilitative alimony is not warranted.” Upon reconsideration, the trial court should determine if under current circumstances rehabilitative alimony is necessary to provide Mrs. Massis with the ability to support herself in a manner similar to that enjoyed during the marriage, unless that standard is otherwise subject to qualification.
Our final concern lies with the trial court’s failure to reserve jurisdiction to determine the reasonableness of Mrs. Massis’ attorney's fee. After initially finding that the “Husband has the ability to contribute to the Wife’s attorney’s fees and costs,” the court nevertheless ordered each party to bear the entire cost of his or her own attorney’s fee because Mrs. Massis had utilized some marital funds to pay a part of her attorney’s fee. Upon remand, the trial court must first determine what amount represents a reasonable fee for Mrs. Mas-sis’ attorney. The court can then determine which part of that cost must be borne by each party, based on appropriate considerations.
We reverse the award of the entire value of the marital residence to the husband, and the denial of rehabilitative alimony and attorney’s fees, and remand to the trial court for reconsideration of the denial of those issues.
SHIVERS, C.J., and WIGGINTON, J., concur. . Zaborowski v. Zaborowski, 547 So. 2d 1296, 1297 (Fla. 5th DCA 1989); Bowen v. Bowen, 543 So. 2d 1284 (Fla. 2d DCA 1989); Szemborski v. Szemborski, 512 So. 2d 987 (Fla. 5th DCA 1987); Reyher v. Reyher, 495 So. 2d 797 (Fla. 2d DCA 1986).
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Citator
Cited By (15 total)
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Carole v. Knecht, 629 So. 2d 883 (Fla. 3d DCA 1993)…red in so classifying the house. Furthermore, as a nonmarital asset the house is not subject to equitable distribution unless its value has been enhanced by marital labor or funds. Moon v. Moon, 594 So. 2d 819 (Fla. 1st DCA 1992); Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989). There is no record evidence of any enhancement in the asset’s value due to any marital efforts; it was error to categorize the house as a marital asset for equitable distribution purposes. Moreover, the award to the wife of her…
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Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1st DCA 1995)…he appreciated value of a non-marital asset caused by the expenditure of marital funds or labor, including the parties’ management, oversight, or contribution to principal, Young v. Young, 606 So. 2d 1267, 1270 (Fla. 1st DCA 1992); Massis v. Massis, 551 So. 2d 587, 589 (Fla. 1st DCA 1989), as well as an appropriate portion of any appreciation of a non-marital asset caused by the effects of inflation and market conditions, where “some portion of the current value ... must reasonably be classified as a marital…1 / 2
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Bell v. Bell, 587 So. 2d 642 (Fla. 1st DCA 1991)…’s factual findings in the order, where the former husband’s share is diminished due to his misconduct. Absent countervailing circumstances, the starting point in distribution is an approximately equal division of marital assets.2 Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989). The record here indicates that the distribution effected by the judgment ranged somewhere between a 60/40 and a 75/25 weighted share in favor of the appel-lee wife, and that many of appellant’s numerous acts of child molestation…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- O'Neal v. O'Neal, 410 So. 2d 1369 (Fla. 5th DCA 1982)
- Russell v. State, 529 So. 2d 1138 (Fla. 1st DCA 1988)
- Crapps v. P.C. Crapps, III, 501 So. 2d 661 (Fla. 1st DCA 1987)
- Sanders v. Dorsey A. Sanders, 547 So. 2d 1014 (Fla. 1st DCA 1989)
- Askegard v. Askegard, 524 So. 2d 736 (Fla. 1st DCA 1988)
- Reyher v. Reyher, 495 So. 2d 797 (Fla. 2d DCA 1986)
- Zaborowski v. Zaborowski, 547 So. 2d 1296 (Fla. 5th DCA 1989)
- Bowen v. Bowen, 543 So. 2d 1284 (Fla. 2d DCA 1989)
- Cadby v. State, 512 So. 2d 987 (Fla. 4th DCA 1987)