DAN KEATON, APPELLANT,
v.
YVONNE KEATON, APPELLEE

Fla. 4th DCA | 1994-04-06
No. 92-2794
GUNTHER, J., concurs., STONE, J., concurs in part and dissents in part with opinion.
634 So. 2d 798 Florida District Court of Appeal, Fourth District (1994) Positive Treatment
Cited by 45 cases

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Synopsis

Dan Keaton appeals a final dissolution of marriage judgment, challenging the trial court's division of marital assets, denial of his continuance motion, award of primary custody to his wife, and attorney's fees award. The appellate court affirmed the custody decision but reversed the asset distribution and attorney's fees award, remanding for proper findings on marital property division.


Holding

The trial court erred in delegating its judicial duty to determine marital asset distribution and in awarding attorney's fees when both parties were placed in equal financial positions. The trial court did not abuse its discretion in denying the continuance motion, and sufficient evidence supported the custody award to the wife.


Headnotes

[1] A trial court errs by delegating its duty to determine the distribution of marital assets and liabilities to the parties.

[2] In a contested dissolution action without a stipulation, the distribution of marital assets and liabilities must be supported by specific written findings of fact, includ…

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Key Quotes

“The judicial power is not delegable and cannot be abdicated.”

Establishes the fundamental principle that the trial court cannot delegate its duty to determine marital property rights to the parties

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Facts & Procedural History

Dan and Yvonne Keaton contested the division of marital and nonmarital property in their dissolution proceeding. During the final hearing, the trial c…

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Opinion of the Court
RAMIREZ, JUAN, Jr., Associate Judge.

RAMIREZ, JUAN, Jr., Associate Judge.

Appellant, Dan Keaton, appeals a final judgment of dissolution of marriage. We affirm in part and reverse in part.

Appellant asserts that the trial court erred in dividing the marital/nonmarital assets and liabilities. After a final hearing in which the parties were contesting what constituted marital property and what did not, the trial court ordered the wife to make two lists of all the property she considered that the parties had (presumably as marital property) and present them to the husband. The husband would then choose one of the lists which would constitute his share of the personal marital assets.

In Craig v. Craig, 404 So. 2d 413, 414 (Fla. 4th DCA1981), this court ruled that the trial court must determine the issue of property rights since its final judgment settles all property rights and bars any further action. “The judicial power is not delegable and cannot be abdicated.” Id. By allowing the wife to produce the two lists, the court erroneously delegated its duty of resolving which personal property was deemed to be marital assets and available for distribution and which was nonmarital and not available for distribution.

(3)In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings.... The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership interests;

(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities.

Without specific findings as to the value of marital assets, meaningful appellate review is impossible. Prom v. Prom, 589 So. 2d 1368 (Fla. 1st DCA 1991). Failure to follow that statutory language is reversible error. Bussey v. Bussey, 611 So. 2d 1354 (Fla. 5th DCA 1993).

Appellant next argues that the trial court erred in refusing to grant his motion for continuance after he had fired his fourth attorney shortly before trial. A continuance lies within the trial court’s discretion and a ruling denying a continuance will not be disturbed unless an abuse of discretion is shown. Harrelson v. State, 259 So. 2d 526 (Fla. 1st DCA 1972). We find no abuse of discretion in the record before us.

Appellant also argues that the trial court erred in granting the wife primary physical custody of their child. The court cannot substitute its opinion for that of the trier of fact. Lane v. Lane, 599 So. 2d 218 (Fla. 4th DCA 1992). Custody and visitation cannot be simply determined by a reading of dispassionate words on a page. Id. at 219. We believe that sufficient evidence was introduced that would support the trial court’s findings.

Appellant finally contends that the trial court erred in imposing excessive financial requirements by awarding the wife attorney’s fees. The purpose of awarding attorney’s fees is to “insure that both parties will have reasonably the same ability to secure competent legal counsel.” Cummings v. Cummings, 330 So. 2d 134, 136 (Fla.1976) (quoting Mertz v. Mertz, 287 So. 2d 691, 693 (Fla. 2d DCA 1973)); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990). When the court places the wife in a financial position equal to her husband, she is not entitled to an award of attorney’s fees. Avery v. Avery, 548 So. 2d 865, 866 (Fla. 4th DCA 1989). That is the situation here. We see nothing in the record to indicate that the husband is in a better financial position than the wife. We therefore reverse the order awarding attorney’s fees to the wife.

We reverse as to the award of attorney’s fees and as to the distribution of personal property and liabilities and remand to the trial court specifically to identify and distribute the marital assets and liabilities. We affirm the trial court’s decision as to all other issues.

AFFIRMED in part; REVERSED in part and REMANDED.

GUNTHER, J., concurs.

STONE, J., concurs in part and dissents in part with opinion.

Other
STONE, Judge,

STONE, Judge,

concurring in part and dissenting in part.

I concur in all respects except that I would affirm the trial court’s award of attorney’s fees to the wife.


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Citator

Cited By (23 total)

  • Bart L. Segall v. Segall, 708 So. 2d 983 (Fla. 4th DCA 1998)
    …on of this marital debt. The court’s failure to make findings clearly identifying the marital liabilities and designating which spouse was responsible for each, as required by section 61.075(3)(e), constitutes reversible error. See Keaton v. Keaton, 634 So. 2d 798, 799 (Fla. 4th DCA 1994)(reversed equitable distribution scheme for failure to make statutory findings required by section 61.075(3)). Upon remand, the trial court is directed to specifically identify and equitably distribute the parties’ marital li…
  • Kovar v. Kovar, 648 So. 2d 177 (Fla. 4th DCA 1994)
    …buted the marital assets and awarded the wife the $40,-000 lump sum and $1,500 monthly permanent alimony, the parties were placed in substantially equal financial positions; thus, fees and [*180] costs should not have been awarded. Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994); Ball v. Ball, 554 So. 2d 629 (Fla. 4th DCA 1989) (trial court abused its discretion by awarding attorney’s fees when the award of alimony, equitable distribution, and a requirement that the husband pay joint debts leaves the par…
  • Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995)
    …t of the other errors in the trial court’s order, this Court cannot accurately evaluate if the husband is in the best financial position to pay for the wife’s attorney’s fees. See Kovar v. Kovar, 648 So. 2d 177 (Fla. 4th DCA 1994); Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994); Armstrong v. Armstrong; 623 So. 2d 1216 (Fla. 4th DCA 1993); Brogdon v. Brogdon, 530 So. 2d 1064 (Fla. 1st DCA 1988). Reversed and remanded with instructions.…

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