NANCY L. HESS, APPELLANT/CROSS-APPELLEE,
v.
RONALD M. HESS, APPELLEE/CROSS-APPELLANT
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In this marital property dissolution appeal, the Fourth District Court of Appeal reversed the lower court's calculation of equitable distribution for the marital home, finding two errors: improper attribution of special equity for personal labor and misapplication of the formula for calculating the wife's buyout interest.
The court held that special equity for personal labor alone is improper, but special equity for barter of premarital services may be appropriate if mathematically calculable. Additionally, the wife's interest should be calculated based on her share of fair market value before reducing by half the mortgage amount, not by the Landay formula as applied below.
[1] A special equity in a marital home may be attributed for the barter of labor and equipment for services performed prior to the marriage, provided it can be mathematically…
[2] A marital home's special equity attributable to premarital services must be capable of mathematical calculation.
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Join FLexlaw to unlock all legal intelligence“the lower court erred in attributing a special equity to the husband for his "many hours of personal labor for the construction of the marital home in lieu of putting personal finances into the construction."”
Establishes that personal labor alone cannot support special equity in marital asset distribution.
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Join FLexlaw to unlock all legal intelligenceThe parties were in a dissolved marriage and disputed the distribution of marital assets, specifically the marital home. The husband claimed special e…
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PER CURIAM.
Appellant seeks review of the marital asset distribution aspects of the final judgment of dissolution of marriage rendered below. We find two errors and reverse for recalculation of the equitable distribution value of the former marital home.
First, the lower court erred in attributing a special equity to the husband for his “many hours of personal labor for the construction of the marital home in lieu of putting personal finances into the construction.” See, e.g., Strickland v. Strickland, 494 So. 2d 514 (Fla. 4th DCA1986). This error is apparent on the face of the final judgment. There is no basis to gainsay the lower court’s finding that a special equity would be appropriate for the “barter of labor and equipment” in exchange for previous work husband had done for a third party. Unlike the “personal labor” aspect of special equity identified by the lower court, this “barter” special equity, to the extent it was for services performed prior to the marriage, should be capable of mathematical calculation. We cannot tell whether the value of the special equity was proved by husband because the record contains no transcript. See § 61.075(5)(a)5, Fla.Stat. (1993). We remand to the lower court to recalculate the amount of special equity based on evidence presented on the value of the barter of premarital services.
We also agree that the lower court incorrectly applied the Landay1 formula in calculating the amount necessary for the husband to buy out the wife’s interest. Her interest should be determined by calculating her share of the fair market value of the home before reducing the share by half the amount of the mortgage. See Griffiths v. Griffiths, 563 So. 2d 773 (Fla. 3d DCA 1990); Donaldson v. Donaldson, 481 So. 2d 101, 102 (Fla. 2d DCA 1986).2 In all other respects, the final judgment is affirmed.
Affirmed in part; reversed in part and remanded.
GLICKSTEIN and SHAHOOD, JJ., and GRIFFIN, JACQUELINE, Associate Judge, concur. . Landay v. Landay, 429 So. 2d 1197 (Fla.1983).
. Although not submitted as supplemental authority, we are aware of the case of Romano v. Romano, 632 So. 2d 207 (Fla. 4th DCA 1994), but note that in Romano the parties had stipulated that the husband would receive a percentage of net proceeds calculated after payment of the mortgage and the court merely enforced the stipulation. We also note that the Griffiths court "rejected” the approach taken by this court in Neustein v. Neustein, 503 So. 2d 439 (Fla. 4th DCA 1987), but it is not clear that Neustein needed rejecting, at least on the issue that concerns us here.
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Smeaton v. Smeaton, 678 So. 2d 501 (Fla. 1st DCA 1996)…s failure to properly calculate the effect that [*502] the special equity would have on the distribution of assets in accordance with Landay v. Landay, 429 So. 2d 1197 (Fla.1983). Appellee properly concedes that this constituted error. Hess v. Hess, 654 So. 2d 199 (Fla. 4th DCA 1995). We, therefore, reverse that portion of the final judgment dealing with equitable distribution and remand for further proceedings consistent with this opinion. JOANOS, WOLF and VAN NORTWICK, JJ., concur. . The wife did not…
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Hess v. Hess, 715 So. 2d 1044 (Fla. 4th DCA 1998)…appeal in this dissolution action. In the first appeal, we held that it was error for the trial court to allow the former husband a special equity in the marital home based on his personal labor during the construction of the home. See Hess v. Hess, 654 So. 2d 199 (Fla. 4th DCA 1995)(citing Strickland v. Strickland, 494 So. 2d 514 (Fla. 4th DCA 1986)). On remand, the trial court was directed to recalculate the former [*1045] husband’s special equity taking into consideration only the value of the barter of la…
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Smith v. Smith, 896 So. 2d 818 (Fla. 5th DCA 2005)…only evidence of the value of the Moultrie Heights property was its assessed value. Although section 61.075(3)(b) requires the court to value significant assets, and fair market value is the standard method of evaluating such an asset, Hess v. Hess, 654 So. 2d 199 (Fla. 4th DCA 1995), no evidence of the fair market value was presented. Thus, the trial court did not abuse its discretion in determining the wife’s share based on the assessed value because that was the only evidence of value presented. Additiona…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sumner Landay v. Landay, 429 So. 2d 1197 (Fla. 1983)
- Romano v. Romano, 632 So. 2d 207 (Fla. 4th DCA 1994)
- Griffiths v. Griffiths, 563 So. 2d 773 (Fla. 3d DCA 1990)
- Dean v. Dean, 503 So. 2d 439 (Fla. 4th DCA 1987)
- Neustein v. Monroe Neustein, 503 So. 2d 439 (Fla. 4th DCA 1987)
- Strickland v. Strickland, 494 So. 2d 514 (Fla. 4th DCA 1986)
- T.G. v. State, 481 So. 2d 101 (Fla. 3d DCA 1986)
- Donaldson v. Donaldson, 481 So. 2d 101 (Fla. 2d DCA 1986)