NELI MONTALVO, APPELLANT,
v.
ROBERT MONTALVO, APPELLEE
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Neli Montalvo appealed a final judgment dissolving her four-year marriage to Robert Montalvo, challenging the unequal distribution of marital assets, the vague visitation schedule, and a travel restriction on their minor child. The Florida Fourth District Court of Appeal affirmed the custody determination but reversed and remanded on asset distribution, visitation, and travel restriction issues.
The court affirmed the primary residential parenting arrangement but reversed the unequal asset distribution for lack of findings supporting deviation from equal distribution; reversed the vague visitation schedule as unreasonable and requiring specification on remand; and reversed the travel restriction as unsupported by evidence that the child's temporary travel would interfere with visitation rights.
[1] An unequal distribution of marital assets must be reversed absent findings referencing statutory factors and explaining reasons for the unequal distribution.
[2] Marital misconduct may be considered in fashioning equitable distribution only if the misconduct resulted in the wasting or depletion of marital assets.
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Join FLexlaw to unlock all legal intelligence“the trial court must reconsider the distribution scheme and either effect an equal distribution or make findings necessary to support unequal distribution”
Establishes the requirement for the trial court on remand to justify any unequal distribution with statutory findings
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Join FLexlaw to unlock all legal intelligenceThe parties were married for four years and have one minor daughter born in August 2002. In the final judgment, the husband was awarded $115,503 in ma…
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STEVENSON, C.J.
This is an appeal by Neli Montalvo of the final judgment of dissolution of her four-year marriage to Robert Montalvo. The parties have one minor child, a daughter born in August 2002. In the final judgment, the trial court declared the wife primary residential parent of the minor child, awarded the husband visitation, and made an unequal distribution of the marital assets. We affirm in part and reverse in part.
A review of the equitable distribution provisions of the final judgment shows that the husband was awarded $115,503 in marital assets and the wife $23,750. After this distribution, the trial court then required the husband to pay the wife $31,000. Thus, in the end, the husband received $84,503 and the wife $54,-750 — a discrepancy of some $29,753. We agree with the wife that the unequal distribution of the marital assets must be reversed absent any findings referencing factors in Florida Statutes section 61.075 (2006), and explaining reasons for the unequal distribution. See, e.g., Boutwell v. Adams, 920 So. 2d 151, 153 (Fla. 1st DCA 2006); Peacock v. Peacock, 879 So. 2d 96 (Fla. 4th DCA 2004); Bailey v. Bailey, 851 So. 2d 286, 287 (Fla. 3d DCA 2003). On remand, the trial court must reconsider the distribution scheme and either effect an equal distribution or make findings necessary to support unequal distribution. Additionally, we note that the trial court may consider the misconduct of either party in fashioning the equitable distribution only if the misconduct resulted in wasting or depletion of the marital assets. See, e.g., Murray v. Murray, 636 So. 2d 536, 538 (Fla. 1st DCA 1994).
With respect to visitation, the final judgment allows the husband two nights per week with the child with the proviso that he tell the wife “in advance” which days he intends to take the child. The wife complains that since the order gives the husband sole discretion to pick the two days for his visitation and does not establish any timeframe for the notice that he is required to give, the order creates an unmanageable situation where she and the child “will not be able to organize their life or make plans.” We agree to an extent with the wife’s complaint. Normal planning for weekend and other leisure activities for the wife and child together could be difficult and easily disrupted. As presently established, the visitation schedule is simply unreasonable. Cf. Booth v. Booth, 842 So. 2d 878 (Fla. 2d DCA 2003) (reversing judgment that awarded mother visitation, but failed to establish schedule of any kind); Letourneau v. Letourneau, 564 So. 2d 270 (Fla. 4th DCA 1990) (reversing judgment awarding husband visitation to be exercised upon approval of wife and remanding with instructions that the trial court establish schedule); Savoy v. Savoy, 529 So. 2d 829, 830 (Fla. 5th DCA 1988) (reversing judgment that awarded father “restricted and limited visitation,” but permitted mother to determine when such visitation would occur).
Lastly, the trial court included a provision in the final judgment providing that “[njeither party shall remove the children from the counties within the 19th Judicial Circuit, Palm Beach or Broward Counties, without a Court Order.” The wife complains that this provision is not in the best interests of the child because it may prevent the child from experiencing ordinary and routine trips with either parent unless the court becomes involved. While case law recognizes that, in the context of a marital dissolution, trial courts have the authority to restrict a child’s travel out of the country, out of the state, or out of the county, see McIntyre v. McIntyre, 452 So. 2d 14, 20 (Fla. 1st DCA 1984), “[t]he predicate for the existence of this power is a showing that the movement of the child may interfere with the visitation rights accorded to the other party,” Foss v. Foss, 392 So. 2d 606, 608 (Fla. 3d DCA 1981). Here, nothing in the evidence suggested that either parent having the ability to temporarily travel out of the county with the child will interfere with visitation. Thus, on remand, the trial court is directed to remove the travel restriction from the final judgment.
We have carefully considered the other issues raised by the wife on appeal, but we find no error. Affirmed in part, Reversed in part, and Remanded.
KLEIN and SHAHOOD, JJ., concur.
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Teelucksingh v. Teelucksingh, 21 So. 3d 37 (Fla. 2d DCA 2009)…(3), Florida Statutes (2007). Specifically, the trial court awarded the Wife sole ownership of the parties’ three pieces of nonhomestead marital property without any explanation for the unequal distribution. See § 61.075(3)(d); Montalvo v. Montalvo, 949 So. 2d 350 (Fla. 4th DCA 2007). In addition, the court failed to address marital liabilities, which each party asserted in their petitions should be equitably distributed. Reversed and remanded. ALTENBERND and KELLY, JJ, Concur.…
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Mohssen Jalileyan v. Laden Jalileyan, 4 So. 3d 1289 (Fla. 4th DCA 2009)…ed by “factual findings in the judgment or order based on competent substantial evidence ... ”). On remand, the trial court must redistribute the assets or make factual findings necessary to support an unequal distribution. See Montalvo v. Montalvo, 949 So. 2d 350, 351 (Fla. 4th DCA 2007). Reversed and Remanded. STEVENSON and MAY, JJ., concur.…
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Gilbert v. Dany Katz-Gilbert, 90 So. 3d 858 (Fla. 4th DCA 2012)…567, 568 (Fla. 4th DCA 2011); Jalileyan v. Jalileyan, 4 So. 3d 1289 (Fla. 4th DCA 2009). On remand, the trial court must reallocate the marital liabilities or make factual findings necessary to support an unequal distribution. Montalvo v. Montalvo, 949 So. 2d 350, 351 (Fla. 4th DCA 2007). We find the other issues raised by the former husband to be without merit and áffirm in all other respects the amended final judgment of dissolution. Affirmed in part, reversed in part, and remanded for further procee…
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 (12 total)
- McINTYRE v. Nance Ruth McINTYRE, 452 So. 2d 14 (Fla. 1st DCA 1984)
- Harrell Charles Murray III v. Murray, 636 So. 2d 536 (Fla. 1st DCA 1994)
- Foss v. Foss, 392 So. 2d 606 (Fla. 3d DCA 1981)
- Boutwell v. Adams, 920 So. 2d 151 (Fla. 1st DCA 2006)
- Letourneau v. Letourneau, 564 So. 2d 270 (Fla. 4th DCA 1990)
- Martinez v. State, 564 So. 2d 270 (Fla. 4th DCA 1990)
- Savoy v. Savoy, 529 So. 2d 829 (Fla. 5th DCA 1988)
- Bailey v. Bailey, 851 So. 2d 286 (Fla. 3d DCA 2003)
- Booth v. Booth, 842 So. 2d 878 (Fla. 2d DCA 2003)
- Jarius A. McTAGGART v. State, 851 So. 2d 286 (Fla. 3d DCA 2003)