DELBERT SPENCE, APPELLANT,
v.
MARY SPENCE, APPELLEE
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In this marital dissolution appeal, the court reversed and remanded multiple aspects of the trial court's equitable distribution order, finding that the trial court awarded the former husband a majority of non-income-producing marital assets and all liabilities while failing to make required findings justifying the unequal distribution. The court also found reversible errors in the classification of the family farm as nonmarital property, the inclusion of a disputed debt, and the award of rehabilitative alimony and attorney's fees without adequate findings.
The trial court erred in awarding the majority of non-income-producing assets and all liabilities to Former Husband without making findings justifying the unequal distribution. The trial court erred in classifying the family farm as nonmarital property without considering evidence that marital funds paid its debts, making at least a portion of the farm a marital asset. The trial court erred in including the $18,000 Geneva Bank note as a marital debt without evidentiary support. The trial court erred in awarding rehabilitative alimony without making findings justifying the award. The trial court erred in awarding attorney's fees without determining Former Husband's ability to pay.
[1] A trial court must make findings justifying an unequal distribution of marital assets and liabilities.
[2] Evidence that marital funds were used to pay debts on a property may establish that the property is a marital asset subject to equitable distribution.
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Join FLexlaw to unlock all legal intelligence“The trial court awarded Former Husband a majority of the marital assets, none of which were income producing, and all of the marital liabilities. This left Former Husband with a net worth of negative $18,700 and Former Wife with a net worth of $7,500. The trial court made no findings justifying this unequal distribution; therefore, we reverse and remand.”
Establishes that the trial court's failure to make findings justifying materially unequal distribution constitutes reversible error requiring remand.
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Join FLexlaw to unlock all legal intelligenceThe trial court dissolved the marriage and distributed marital assets and liabilities, awarding Former Husband a majority of non-income-producing mari…
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PER CURIAM.
This cause is before us on appeal and cross-appeal from an order of the trial court dissolving the parties’ marriage, determining and distributing the parties’ marital assets and liabilities, and ordering Former Husband to pay rehabilitative alimony and a portion of Former Wife’s attorney’s fees. Finding merit to most of the issues raised, we reverse and remand.
In the equitable distribution plan, the trial court awarded Former Husband a majority of the marital assets, none of which were income producing, and all of the marital liabilities.1 This left Former Husband with a net worth of negative $18,700 and Former Wife with a net worth of $7,500. The trial court made no findings justifying this unequal distribution; therefore, we reverse and remand. § 61.075, Fla.Stat.; Taber v. Taber, 626 So. 2d 1089 (Fla. 1st DCA 1993); Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993); Kirkland v. Kirkland, 618 So. 2d 295 (Fla. 1st DCA 1993).
Additionally, we find reversible error in two other aspects of the trial court’s equitable distribution. First, it erred in finding the family farm to be the nonmarital property of Former Husband without considering the evidence presented that all debts on the farm were being paid from marital funds. Such evidence shows that the farm, or at least a portion of it, was a marital asset subject to equitable distribution. § 61.075, Fla.Stat.; Berki v. Berki, 636 So. 2d 532 (Fla. 5th DCA), rev. denied, 645 So. 2d 450 (Fla.1994); Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989); Turner v. Turner, 529 So. 2d 1138 (Fla. 1st DCA 1988). We affirm, however, that part of the final order nullifying the transfer of the farm deed into both parties’ names. There is competent, substantial evidence in the record to support the trial court’s finding that Former Wife, in effect, deceived Former Husband into the transfer. § 61.075(1)(j), Fla.Stat.; see Seijas v. Seijas, 557 So. 2d 102 (Fla. 3d DCA 1990). Second, the trial court erred in determining and distributing an $18,000 debt (Geneva Bank note) to Former Husband. The existence of this debt is not supported by the evidence, as Former Husband testified at trial that the note had been paid by funds from a certificate of deposit. On remand, the trial court shall address these issues and redistribute the marital property, if necessary.
We also reverse and remand the award of rehabilitative alimony because the trial court failed to make any findings justifying the award. Collinsworth, supra. If, on remand, the trial court finds that rehabilitative alimony is still appropriate, it may revisit the amount and length of payments. If the trial court finds that rehabilitative alimony is not appropriate, it may reconsider an award of permanent periodic alimony.
Finally, the award of attorney’s fees is reversed because the trial court failed to determine that Former Husband had the ability to pay the amount ordered. On remand, the trial court shall reconsider the financial resources of both parties and revisit this matter. Any remaining issues raised, but not addressed herein, are affirmed.
AFFIRMED in part, REVERSED and REMANDED in part.
BOOTH, JOANOS and VAN NORTWICK, JJ., concur. . The trial court found that the value of the parties’ ostrich breeding business was “minimal and based on too many contingencies, i.e., their survival and ability to produce.”
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Ballard v. Ballard, 158 So. 3d 641 (Fla. 1st DCA 2014)…assets are used during the marriage to reduce the mortgage on non-marital property, the increase in equity is a marital asset subject to equitable distribution. See, e.g., Gaetani-Slade v. Slade, 852 So. 2d 343 (Fla. 1st DCA 2003); Spence v. Spence, 669 So. 2d 1110 (Fla. 1st DCA 1996); Massis v. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989); Heiny v. Heiny, 113 So. 3d 897 (Fla. 2d DCA 2013); Dwyer v. Dwyer, 981 So. 2d 1254 (Fla. 2d DCA 2003); Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003); Cole v. Robert…
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Moore v. Moore, 679 So. 2d 1311 (Fla. 3d DCA 1996)…t but assigned to the former husband most of the marital liabilities. We agree with the former husband that the trial court erred in its allocation of the marital debt without setting forth reasons for the unequal distribution. See Spence v. Spence, 669 So. 2d 1110 (Fla. 1st DCA 1996); Wasserman v. Wasserman, 651 So. 2d 823 (Fla. 4th DCA 1995); Kimm v. Kimm, 650 So. 2d 1119 (Fla. 5th DCA 1995). We reverse the final judgment and remand for a more equitable distribution or for the court to articulate appropriate…
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Firuza Sarazin v. Ratko John Sarazin, 263 So. 3d 273 (Fla. 1st DCA 2019)
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
- Russell v. State, 529 So. 2d 1138 (Fla. 1st DCA 1988)
- Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993)
- Massis v. Radi S. Massis, 551 So. 2d 587 (Fla. 1st DCA 1989)
- Kirkland v. Kirkland, 618 So. 2d 295 (Fla. 1st DCA 1993)
- Taber v. Taber, 626 So. 2d 1089 (Fla. 1st DCA 1993)
- Seijas v. Seijas, 557 So. 2d 102 (Fla. 3d DCA 1990)
- Berki v. Berki, 636 So. 2d 532 (Fla. 5th DCA 1994)