JEFFREY MICHAEL ESPOSITO, APPELLANT,
v.
ANGIE R. ESPOSITO, APPELLEE
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In this marital dissolution appeal, the Florida District Court of Appeal reversed the trial court's award of the wife's massage therapy business to her without properly determining whether it was a marital or nonmarital asset. The court held that the business, though operated solely by the wife, constituted a marital asset because it was purchased with funds from a joint marital account, and therefore must be subject to equitable distribution on remand.
The business is a marital asset subject to equitable distribution because, although operated solely by the wife, it was purchased with marital funds from the joint account. The trial court's failure to make an explicit determination that the business is marital property before distributing it constituted error. While the wife may claim special equity in the business, the trial court must first classify it as marital and then conduct a proper equitable distribution analysis on remand.
[1] A business started with marital funds during the course of a marriage is a marital asset subject to equitable distribution, even if operated solely by one spouse.
[2] A trial court must identify and value marital assets before making an equitable distribution in a dissolution of marriage proceeding.
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Join FLexlaw to unlock all legal intelligence“A business run solely by one spouse but purchased with marital funds is a marital asset and subject to equitable distribution.”
Establishes the legal standard that the source of funds, not the sole operation by one spouse, determines whether a business is marital property subject to distribution.
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Join FLexlaw to unlock all legal intelligenceThe parties married in 1980 and separated after thirteen years with five minor children. During the first seven years, the husband was the sole provid…
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QUINCE, Judge.
Jeffrey Esposito (husband) appeals the trial court’s distribution of assets in a marital dissolution. Because the trial court did not properly designate certain property as marital or nonmarital, we reverse and remand for further proceedings.
The parties were married in 1980, and after thirteen years the wife filed a petition for dissolution of the marriage. There were five children born of the marriage, all of whom are minors. During the first seven years of the marriage the husband worked for his uncle and was the sole provider for the family. In 1989 the wife went to school for massage therapy and opened her own business. The husband began to have problems with drugs and was in a rehabilitation program in early 1991. During this time the wife continued to build her business while also caring for the five children.
The final judgment of dissolution awarded custody of the five minor children to the wife, and gave her use, possession and ownership of the massage therapy business. The marital home was to be retained as tenants in common until sold. Personal property, including the motor vehicles, was divided between the parties with the wife receiving credit for husband’s dissipation of marital assets. The husband was awarded attorney’s fees of $3,000, offset by child support arrear-ages and by car payments made on the husband’s vehicle by the wife during the separation.
On appeal, the husband questions the trial court’s distribution of marital assets, the wife’s reimbursement for mortgage payments, the failure to award him rehabilitative alimony, and the amount of attorney’s fees. We address only the court’s distribution of the massage therapy business and the attorney’s fees. We affirm on the other issues.
In a dissolution of marriage proceeding, the trial court must make an equitable distribution of all marital assets and liabilities. See § 61.075, Fla.Stat. (1991); Robertson v. Robertson, 593 So. 2d 491 (Fla.1991)-. To accomplish this distribution, the court must identify and determine a value for the marital assets. The trial court in this case awarded the massage therapy business to the wife without making a determination of whether it is a marital or nonmarital asset. The trial court simply said the “business is dependent solely upon the wife to continue in existence and is not a family business.” The court valued the business as nil despite evidence that the wife grossed in excess of $100,000 last year. The evidence clearly demonstrates this business is a marital asset. The wife went to massage therapy school during the course of the marriage and paid her tuition from a joint account containing funds deposited by both parties. The business was also started with money from the joint account. A business run solely by one spouse but purchased with marital funds is a marital asset and subject to equitable distribution. Tessalone v. Tessalone, 549 So. 2d 1192 (Fla. 2d DCA 1989); Rodriguez v. Rodriguez, 550 So. 2d 16 (Fla. 3d DCA 1989). Although the wife may be able to claim a special equity in the massage business, the trial court’s analysis must begin with a determination that the business is a marital asset. On remand, the trial court may want to revisit the entire equitable distribution scheme.
The trial court awarded the husband attorney’s fees which were reduced by child support arrearages and payments the wife made on the husband’s vehicle since the separation. We affirm the trial court’s determination that the husband is entitled to fees, but voice our concern about the offset for child support arrearages. There is no finding in the final judgment indicating the total amount in arrears. It is unclear if the husband will still be in arrears once the attorney’s fee award is deducted. On remand, we suggest the trial court use the car payments and/or other items to be equitably distributed to offset the fee payment.
We reverse the trial court’s distribution of the massage therapy business and remand for further proceedings consistent with this opinion.
CAMPBELL, A.C.J., and BLUE, J., concur.
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Franz Edward Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003)…accounts. On remand, the court shall comply with section 61.075(1) by determining whether these liabilities are marital or nonmarital. If the former, it shall include these liabilities in its equitable distribution scheme. See Esposito v. Esposito, 651 So. 2d 1248, 1248 (Fla. 2d DCA 1995). VISITATION The final judgment ordered the parties to share parental responsibility for their children, with Ms. Mitchell designated as the primary residential parent. The court approved the recommendation of the court-app…
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Cooper v. Cooper, 760 So. 2d 1048 (Fla. 2d DCA 2000)…solution of marriage proceeding, the trial court must make an equitable distribution of all marital assets and liabilities. To accomplish this distribution, the court must identify and determine a value for the marital assets.” Esposito v. Esposito, 651 So. 2d 1248, 1248 (Fla. 2d DCA 1995) (internal citations omitted). Accordingly, we reverse the equitable distribution and remand for the trial court to consider the equitable distribution anew. Finally, we reverse the trial court’s determination on attorney’s…
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Austin v. Austin, 120 So. 3d 669 (Fla. 1st DCA 2013)…isdiction over attorney’s fees paid to a non-party corporation by another non-party corporation, JTA. Generally speaking, while a family-owned business is considered a marital asset subject to equitable distribution, see, e.g., Esposito v. Esposito, 651 So. 2d 1248, 1249 (Fla. 2d DCA 1995), a trial court does not have the power to order the transfer of corporate property or assets without joinder of the corporation. See Mathes v. Mathes, 91 So. 3d 207, 208 (Fla. 2d DCA 2012); Sandstrom v. Sandstrom, 617 So. 2d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
- Hildelisa Rodriguez v. Rodriguez, 550 So. 2d 16 (Fla. 3d DCA 1989)
- Tessalone v. Tessalone, 549 So. 2d 1192 (Fla. 2d DCA 1989)