DUANE H. ROBINSON, APPELLANT,
v.
LURANA DUPREE ROBINSON, APPELLEE
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In this dissolution of marriage appeal, the Third District Court of Appeal affirmed the trial court's denial of alimony to the husband but reversed the classification of approximately $640,000 in commingled accounts as non-marital property, finding they should be treated as marital property subject to equal distribution. The court also reversed the trial court's partial award of attorney's fees and remanded for reassessment.
The trial court erred in classifying the commingled accounts as non-marital property because the intermingling of non-marital and marital funds creates a presumption of gift that the wife failed to rebut. The trial court did not err in denying alimony because the husband failed to plead or prove the need for rehabilitative alimony. The trial court abused its discretion in awarding only partial attorney's fees given the wife's superior ability to pay.
[1] Commingling of non-marital funds with marital funds creates a presumption that the non-marital funds were gifted to the marital estate, which can only be rebutted by clea…
[2] A party seeking rehabilitative alimony must plead and prove the need for such alimony.
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Join FLexlaw to unlock all legal intelligence“Such intermingling creates a presumption that she made a gift to her husband of an undivided one-half interest in the funds on deposit.”
Establishes the legal standard that commingled non-marital and marital funds create a presumption of gift requiring rebuttal
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Join FLexlaw to unlock all legal intelligenceThe couple had been married 15 years. The wife, age 62 and disabled, had assets exceeding $3.5 million, primarily from inheritance and a prior settlem…
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PER CURIAM.
Duane H. Robinson, former husband, appeals the final judgment of dissolution of marriage from his former wife, Lurana Du-pree Robinson, and the final judgment awarding attorney’s fees and costs. For the following reasons, we affirm in part and reverse in part.
When the wife filed a petition for dissolution of marriage, the couple had been married for 15 years. The wife is 62 years old and disabled, while the husband, 55, a former crane operator, has only been able to find part-time employment. The final judgment of dissolution of marriage gives the wife assets in excess of $3.5 million, consisting mostly of an inheritance and a settlement from a former marriage. Most of the wife’s assets are in real estate; she points out that at least one property is a severe financial drain. The judgment awards the husband more than $200,000, the bulk in three properties that were jointly titled with his wife.
The husband alleges error in the tidal court’s classification of non-marital property; we agree that the trial court erred when it classified as the wife’s non-marital property approximately $640,000 contained in certificates of deposit, money market funds, and other accounts. The money in those accounts came from the sale of property purchased with inherited funds as well as rental proceeds from the wife’s investments. However, the wife’s non-marital funds in the accounts were co-mingled with marital funds, and there was testimony that the husband often handled the banking duties. “Such intermingling creates a presumption that she made a gift to her husband of an undivided one-half interest in the funds on deposit.” Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994) (citing Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992)); see also Thibault v. Thibault, 632 So. 2d 261 (Fla. 1st DCA 1994). The record establishes the wife did not rebut that presumption. The money in the accounts should have been treated as marital property.
The husband also alleges error in the trial court’s failure to award him some form of alimony. We find no error by the trial court because the husband failed to either plead or prove the need for rehabilitative alimony.
Finally, the husband alleges error in the final judgment awarding attorney’s fees and costs. The husband’s attorney’s fees totaled $13,370, but the wife was only ordered to pay $6,000 because “the husband’s position in the case was overreaching and unreasonable based on his limited contributions to the marriage and the wife’s poor health.” Under the original distribution scheme, the trial court clearly abused its discretion in not ordering the wife to pay all of the husband’s attorney’s fees, given the far superior ability of the wife to pay. § 61.16, Fla.Stat. (1992); LaHtds v. LaHuis, 590 So. 2d 557 (Fla. 3d DCA 1991) (“[W]here the parties’ financial positions are not the same, and one party has a superior ability to secure and pay for counsel, the court should award attorney’s fees to the disadvantaged party.”); see also Canakaris v. Canakans, 382 So. 2d 1197 (Fla.1980). Since the trial court is now required to reassess the distribution of assets, however, we direct the court to at the same time reconsider each party’s ability to pay their attorney’s fees.
In sum, we remand to the trial court to modify the final judgment to reflect that the couple’s accounts are marital property. At the same time, the court will reassess the issue of attorney’s fees. In all other respects, the final judgment is affirmed.
Affirmed in part and reversed in part with instructions.
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Previewing 3 of 8 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)
- Woodard v. Jaymie Sands Woodard, 634 So. 2d 782 (Fla. 5th DCA 1994)
- Gilda Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992)
- Thibault v. Thibault, 632 So. 2d 261 (Fla. 1st DCA 1994)
- Fla. Aviation Int'l Corp. v. A & E Aircraft, Inc., 590 So. 2d 557 (Fla. 3d DCA 1991)
- LaHUIS v. LaHUIS, 590 So. 2d 557 (Fla. 3d DCA 1991)