DENISE KOWAL, APPELLANT,
v.
ALBERT TOMLINSON, APPELLEE; ALBERT TOMLINSON, APPELLANT, V. DENISE KOWAL, APPELLEE

Fla. 2d DCA | 2001-01-17
Nos. 2D98-1140, 2D99-3140
DAVIS, J., and CAMPBELL, MONTEREY (Senior) Judge, concur.
780 So. 2d 172 Florida District Court of Appeal, Second District (2001) Positive Treatment
Cited by 6 cases

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Synopsis

In this consolidated marital dissolution appeal, the Florida District Court of Appeal affirmed the trial court's overall property distribution and other rulings but reversed and remanded on two issues: the amount of mortgage credit owed to the wife for mortgage reduction payments on the husband's non-marital property and the retroactive child support calculation, which should have commenced from the filing date of the petition rather than a later date.


Holding

The court affirmed the principle that the wife is entitled to one-half of mortgage reduction on non-marital property paid from marital funds, but reversed because the trial court's award lacked a documented basis for the $68,832 calculation. The court also reversed the retroactive child support calculation, holding that child support should have been awarded retroactively from the petition filing date of March 3, 1994, where both need and ability to pay existed at that time.


Headnotes

[1] A trial court must provide a basis for its award of marital assets, allowing parties to understand the computation and present relevant evidence.

[2] Marital funds used to reduce the mortgage on a spouse's non-marital asset are subject to equitable distribution.

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Key Quotes

“The husband does not dispute that the wife is entitled to one-half of the mortgage reduction on the husband's premarital Shell Road residential property.”

Establishes the legal principle that the wife is entitled to half the mortgage reduction paid with marital funds on non-marital property, but the trial court failed to provide a record basis for its calculation.

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Facts & Procedural History

Denise Kowal and Albert Tomlinson were married for forty-four months. The husband owned a Shell Road residential property prior to marriage. During th…

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Opinion of the Court
GREEN, Acting Chief Judge.

GREEN, Acting Chief Judge.

The wife, Denise Kowal, and the husband, Albert Tomlinson, each present multiple points in these consolidated appeals from three judgments of marital dissolution entered after the principal trial.

We affirm the final judgment and amended final judgments of dissolution of marriage on all points except for an assessed mortgage credit award to the wife and retroactive child support paid to her. On these two points we reverse and remand for further proceedings.

The husband does not dispute that the wife is entitled to one-half of the mortgage reduction on the husband’s premarital Shell Road residential property. See Adkins v. Adkins, 650 So. 2d 61 (Fla. 3d DCA 1994) (holding that increase in equity in marital home due to mortgage payments from marital account was a marital asset subject to distribution); Cole v. Roberts, 661 So. 2d 370 (Fla. 4th DCA 1996) (holding wife was entitled to one-half of amount of marital funds used to reduce mortgage on condominium that was husband’s nonmari-tal asset absent evidence contradicting wife’s testimony that mortgage payments were made with marital funds). However, the trial judge’s order does not recite the basis for the award to the wife of $68,832, representing the wife’s reduction payment. The husband complains that the wife has not presented evidence with respect to the amount of her entitlement and, therefore, the husband has been foreclosed from asserting his contentions.

The trial judge simply observed that there was a principal debt reduction of $137,666 during the forty-four months of marriage, one-half of which the wife was entitled to receive. He did not provide a record reference for his conclusion, and therefore, the matter must be revisited. The parties are entitled to know how this computation was made and to present evidence which they believe may bear upon the result. Whatever award is concluded will not affect the remaining property distribution in this case.

Additionally, the trial judge awarded retroactive child support from December 1, 1996, a date on which the court determined the husband began receiving a discernable income. There is no evidence in the record that the husband was not earning an income for the time period between the filing of the dissolution of marriage petition on March 3, 1994, and the December 1, 1996, date chosen by the trial court. It was error for the trial judge not to award support retroactive to the filing date ’ of wife’s petition. See Bardin v. Dept. of Revenue, 720 So. 2d 609 (Fla. 1st DCA 1998) (holding trial court abuses discretion with respect to petition for child support by failing to award support from date of petition, where need for support and ability of the father to pay existed at time petition was filed); Beal v. Beal, 666 So. 2d 1064 (Fla. 1st DCA 1996) (holding where record showed child’s need and husband’s ability to pay existed at time of filing of petition for dissolution, trial court should not have denied retroactive child support on ground that wife waived claim to such support); Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992) (holding it is abuse of discretion to fail to award support from date of petition for modification, where need for support and ability of former spouse to pay existed at time modification petition was filed). We note the wife concedes that the husband is entitled to some credit for contributions during the uncovered period.

We therefore direct that an additional hearing be held so that these two deficiencies can be resolved.

Affirmed in part; reversed and remanded for further proceedings in part.

DAVIS, J., and CAMPBELL, MONTEREY (Senior) Judge, concur.


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Citator

Cited By

  • Thyrre v. Thyrre, 963 So. 2d 859 (Fla. 2d DCA 2007)
    …ail to award support from the date of the petition for modification where the” circumstances requiring modification existed at the time that the petition was filed. Anderson v. Anderson, 609 So. 2d 87, 89 (Fla. 1st DCA 1992); see Kowal v. Tomlinson, 780 So. 2d 172, 173 (Fla. 2d DCA 2001) (holding that trial court abused its discretion in failing to order child support retroactive to the date of filing where there was no evidence that husband was unable to pay the ordered monthly amount during that period of t…
  • Cash v. Cash, 122 So. 3d 430 (Fla. 2d DCA 2013)
    …which a petition for modification is filed, failure to order the modification retroactive to the date of the filing of the petition constitutes an abuse of discretion.” Spano v. Bruce, 62 So. 3d 2, 6 (Fla. 3d DCA 2011); see also Kowal v. Tomlinson, 780 So. 2d 172, 173 (Fla. 2d DCA 2001) (holding that trial 'court abused its discretion in failing to order child support retroactive to date of filing where there was no evidence that husband was unable to pay the ordered amount during that period of [*436] time)…
  • Dickson v. Dickson, 204 So. 3d 498 (Fla. 4th DCA 2016)
    …rd retroactive support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay.” Leventhal v. Leventhal, 885 So. 2d 919, 920 (Fla. 3d DCA 2004); see also Kowal v. Tomlinson, 780 So. 2d 172, 173 (Fla. 2d DCA 2001). Based on the foregoing, we reverse and remand for the trial court to apply the rebuttable presumption of permanent alimony. The court may again deny permanent alimony, but it must make the necessary findings—supported by ev…

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