WENDY ROGERS VAN DUYNE, APPELLANT,
v.
PETER VAN DUYNE, APPELLEE
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In a marital dissolution appeal, the mother challenged the trial court's award of rotating custody and unequal division of marital assets. The appellate court affirmed the rotating custody arrangement but vacated and remanded the asset distribution, finding the trial court failed to properly apply statutory factors for unequal distribution.
The court affirmed the rotating custody determination as supported by evidence that the children had adjusted well to such an arrangement and maintained close relationships with both parents. However, the court reversed the asset distribution, holding that the trial court's findings did not support unequal distribution and that gifts between spouses constitute marital property subject to equal distribution under statute.
[1] Rotating custody may be in the best interests of children when they have adjusted well to such a schedule and have close ties with both parents.
[2] A presumption of equal distribution of marital assets exists, requiring justification for an unequal distribution based on statutory factors.
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Join FLexlaw to unlock all legal intelligence“[T]he court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors”
Establishes the presumption of equal distribution of marital assets under Florida law unless statutory justification exists
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Join FLexlaw to unlock all legal intelligenceThe parties were married for nineteen years and had two children together. The trial court awarded rotating custody to both parents and distributed ma…
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BENTON, J.
In this appeal from a final judgment of dissolution, the mother of the two children born to the parties’ marriage argues that she should have been designated the primary residential parent and that the trial court’s findings do not support an unequal division of marital assets.
We find no fault with the trial court’s determination that rotating custody is in the best interests of the children. See, e.g., O’Brien v. Crumley, 695 So. 2d 881 (Fla. 5th DCA 1997) (holding evidence supported determination that rotating custody was in child’s best interest where child had adjusted well to rotating custody schedule in effect prior to determination and the child had close ties and a loving relationship with both parents). See generally Charlee Perrow, Note, The Oñgin and Evolution of Florida’s Presumption Against Rotating Custody: A Guideline for Florida Judges, 30 Fla. St. U.L.Rev. 503, 507 (2003) (“Florida courts ... consider various factors when determining whether to order rotating custody instead of unquestionably applying the presumption.”).
We agree, however, that the trial court’s findings fail to support the distribution of marital assets that the judgment under review effects. “[T]he court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” listed under section 61.075(1), Florida Statutes. § 61.075(1), Fla. Stat. (2001). In the present case, the trial court concluded that the down payment on the marital home (made less than two years into the nineteen-year marriage) was a gift that did not give rise to a special equity under section 61.075(5)(a), Florida Statutes. Gifts from one spouse to another are marital property, § 61.075(5)(a)(3), Fla. Stat. (2001), that must be distributed like other marital assets.
Insofar as it distributes the parties’ assets only, the judgment is vacated; and the case is remanded for findings in accordance with section 61.075(1), Florida Statutes, and distribution of marital assets in accordance with the statute. The judgment is otherwise affirmed.
BARFIELD and VAN NORTWICK, JJ., concur.