PHILIP PIGNATARO, APPELLANT,
v.
ARA RUTLEDGE, APPELLEE

Fla. 2d DCA | 2003-04-04
No. 2D01-5521
DAVIS and CANADY, JJ„ Concur.
841 So. 2d 636 Florida District Court of Appeal, Second District (2003) Positive Treatment
Cited by 22 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Former husband challenges final divorce judgment, including custody, asset distribution, alimony, and attorney's fees awards. The court affirmed the custody and visitation decision but reversed the equitable distribution ruling due to lack of required statutory findings and remanded for further proceedings on unaddressed alimony and attorney's fees issues.


Holding

The trial court did not err on parental responsibility and visitation because oral findings on the record satisfy statutory requirements, though reversal was required on equitable distribution due to failure to include statutorily mandated findings and valuations. The trial court erred by failing to address alimony and attorney's fees, and these issues were remanded for further proceedings.


Headnotes

[1] A trial court's oral findings on parental responsibility and visitation are sufficient if made on the record, even if not included in the written final judgment.

[2] An appellate court cannot find reversible error in the absence of a transcript of the final hearing to demonstrate that required findings were not made.

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Key Quotes

“the trial court is required to set apart to each spouse his or her nonmarital assets and liabilities because those are not subject to equitable distribution. The trial court must then identify and value the marital assets and distribute those equitably between the parties.”

Establishes the mandatory statutory requirements for equitable distribution of marital assets

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Facts & Procedural History

Pignataro and Rutledge married in 1995 and had two children born in 1995 and 1998. Rutledge filed for dissolution in July 1999 seeking custody, child …

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Opinion of the Court
STRINGER, Judge.

STRINGER, Judge.

Philip Pignataro, the former husband, challenges various aspects of the final judgment dissolving his marriage to Ara Rutledge, the former wife. We affirm in part, reverse in part, and remand for further proceedings.

Pignataro and Rutledge were married in 1995, and they have two children, one born in 1995 and the other born in 1998. In July 1999, Rutledge filed her petition for dissolution of marriage, seeking primary residential custody of the children, child support, equitable distribution of the parties’ assets and liabilities, lump sum alimony, and attorneys’ fees. Pignataro filed a counterpetition, seeking sole parental responsibility for the children, child support, equitable distribution of the parties’ assets and liabilities, permanent periodic alimony, and attorneys’ fees. The dissolution proceedings were quite acrimonious, and, at the time of the final hearing, Pignataro was in prison for the attempted murder of Rutledge’s boyfriend.

At the final hearing, Rutledge was present with her attorney. Pignataro, who was no longer represented by counsel in this action, appeared by telephone from prison. In the final judgment of dissolution that resulted from this hearing, the trial court awarded Rutledge sole parental responsibility for the children and denied Pignata-ro visitation with the children while he is in prison.

The trial court awarded Rutledge the personal property in her possession and the liabilities associated with that personal property.

The trial court awarded Pignataro the personal property he had in his possession before he was imprisoned.

The trial court did not value either the marital assets or liabilities, and it did not distribute all of the liabilities listed by the parties on their financial affidavits.

The trial court also made no ruling on the issues of alimony and attorneys’ fees. Pig-nataro challenges all of these rulings in this appeal.

On the issues of parental responsibility and visitation, Pignataro asserts that the final judgment must be reversed because it does not include a finding that shared parental responsibility would be detrimental to the children or that visitation would not be in the children’s best interest. While Pignataro is correct that the trial court must make these findings, neither chapter 61, Florida Statutes, nor case law require these findings to be included in the written final judgment. If these findings were made on the record at the final hearing, the oral findings are sufficient to satisfy the statutory requirements. See Bader v. Bader, 639 So. 2d 122, 124 (Fla. 2d DCA 1994) (en banc) (holding that the trial court may make the findings relating to shared parental responsibility “either on the record or in the final judg ment”).

However, Pignataro has not provided this court with a transcript of the final hearing, and apparently none exists. In the absence of a transcript of the final hearing, this court cannot say that the trial court erred by failing to make the required findings. See Applegate v. Barnett Bank, 377 So. 2d 1150, 1152 (Fla.1979) (holding that the trial court should be affirmed if the record brought forth by the appellant is inadequate to demonstrate reversible error).

Therefore, we affirm on these issues.

On the equitable distribution issue, Pignataro contends that the trial court abused its discretion in distributing the marital assets because the distribution is not equal. While we cannot say that the trial court abused its discretion in fashioning its equitable distribution scheme, we must nevertheless reverse the final judgment on this issue because the final judgment does not include the required statutory findings.

In fashioning an equitable distribution scheme, the trial court is required to set apart to each spouse his or her nonmari-tal assets and liabilities because those are not subject to equitable distribution. See § 61.075(1), Fla. Stat. (1997).

The trial court must then identify and value the marital assets and distribute those equitably between the parties. Id. See also Robertson v. Robertson, 593 So. 2d 491 (Fla.1991); Embry v. Embry, 650 So. 2d 190 (Fla. 2d DCA 1995).

The trial court must begin its distribution with the premise that the distribution should be equal unless equitable factors compel a different result. See Robertson, 593 So. 2d at 493; Lavelle v. Lavelle, 634 So. 2d 1111, 1112 (Fla. 2d DCA 1994). The final distribution must be supported by factual findings based on substantial competent evidence. See § 61.075(3), Fla. Stat. (1997). A final judgment which purports to equitably distribute the parties’ marital assets but which fails to comply with the statutory requirements is difficult, if not impossible, to review and requires reversal. See Staton v. Staton, 710 So. 2d 744, 745 (Fla. 2d DCA), review denied, 728 So. 2d 205 (Fla.1998).

Prest v. Tracy, 749 So. 2d 538, 538-39 (Fla. 2d DCA 2000).

Here, the final judgment does not identify or value any of the parties’ assets or liabilities, and it provides no factual findings to support the distribution scheme. Therefore, we reverse this aspect of the final judgment and remand for further proceedings.

On the issue of alimony and attorneys’ fees, Pignataro correctly points out that the final judgment wholly fails to address either issue. There is nothing in the record to indicate that these issues were withdrawn from the trial court’s consideration before the final hearing. When issues raised by the pleadings are properly before the trial court, it is error for the trial court to fail to rule on them. See Allen v. Heinrich, 623 So. 2d 540 (Fla. 2d DCA 1993). Therefore, we remand for further proceedings on these issues.

Finally, while we are remanding for further consideration on three issues, we note that the trial court does not necessarily have to conduct a new hearing. Because we do not have a transcript of the final hearing, we cannot say that the trial court did not consider all of the equitable distribution issues on the record or that the parties did not reach some agreement on alimony and attorneys’ fees that is not incorporated into the written final judgment. Therefore, on remand, the trial court must conduct a new hearing only if these matters were not sufficiently addressed at the original hearing. If these matters were addressed at the original hearing, the trial court need only enter an amended final judgment memorializing its earlier findings.

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

DAVIS and CANADY, JJ„ Concur.


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Citator

Cited By (13 total)

  • Burnham v. Burnham, 884 So. 2d 390 (Fla. 2d DCA 2004)
    …ng custody and visitation. See Sullivan v. Sullivan, 668 So. 2d 329, 330 (Fla. 4th DCA 1996); Clayton v. Clayton, 442 So. 2d 310, 311 (Fla. 1st DCA 1984) (citing Applegate v. Barnett Bank, 377 So. 2d 1150 (Fla.1979)); see also Pignataro v. Rutledge, 841 So. 2d 636, 638 (Fla. 2d DCA 2003); Alday v. Gleason, 853 So. 2d 1105, 1106 (Fla. 5th DCA 2003). The former husband does submit the statement of evidence that was approved by the trial court pursuant to rule 9.200(b)(4). We conclude, however, that [*392] the…
  • Pavese v. Pavese, 932 So. 2d 1269 (Fla. 2d DCA 2006)
    …tribution, a court is required to make specific written findings of fact that identify, classify, value, and distribute the parties’ assets and liabilities. § 61.075(3). A final judgment without such findings must be reversed. Pignataro v. Rutledge, 841 So. 2d 636 (Fla. 2d DCA 2003). As mentioned, the final judgment in this case lacks the necessary findings. This failure precludes meaningful appellate review. Moreover, the judgment left unresolved a number of issues raised by the parties. Because the evidenc…
  • Brown v. Reynolds, 872 So. 2d 290 (Fla. 2d DCA 2004)
    …gment. We affirm the circuit court on this point because the record presented to us by Brown is inadequate to demonstrate reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 [*296] (Fla.1979); Pignataro v. Rutledge, 841 So. 2d 636, 637-38 (Fla. 2d DCA 2003). However, the circuit court’s dismissal of the action on the merits stands on a different footing. We now turn our attention to this aspect of the case. The Prematurity of Dismissal on the Merits At a hearing on an order…

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