THOMAS JOHN BURTON, SR., APPELLANT,
v.
LINDA BURTON, APPELLEE
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In this Florida dissolution of marriage appeal, the Fourth District Court of Appeal affirmed the trial court's equitable distribution judgment in most respects but reversed two specific determinations: the trial court's order requiring husband to purchase life insurance without making required factual findings, and its failure to properly account for passive appreciation of wife's non-marital property in calculating equitable distribution.
The trial court erred in both respects. The court must reverse the life insurance order because the trial court failed to make required specific evidentiary findings. The court must also reverse the equitable distribution determination because the trial court failed to apply the proper calculation method for passive appreciation of non-marital property encumbered by marital debt, and remand for proper determination of the indebtedness at the time of marriage.
[1] A trial court ordering a party to purchase life insurance to secure alimony payments must make specific evidentiary findings regarding the availability and cost of insura…
[2] The passive appreciation of non-marital property acquired before the marriage, absent improvements by the owner spouse, may constitute a marital asset in equitable distri…
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Join FLexlaw to unlock all legal intelligence“when ordering a party to purchase life insurance, the trial court must make specific evidentiary findings regarding the availability and cost of insurance, the obligor's ability to pay, and the special circumstances that warrant the requirement for security of the obligation.”
Establishes the legal standard for life insurance orders in dissolution cases that the trial court failed to meet.
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Join FLexlaw to unlock all legal intelligenceThomas and Linda Burton were divorcing. The trial court awarded husband a $6,783 credit representing one-half of mortgage payments made during the mar…
The full statement of facts, procedural history, and disposition for this case are member content.
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This appeal arises out of a final judgment of dissolution of marriage. Thomas John Burton, Sr. (“Husband”) has raised three issues on appeal, while Linda Burton (“Wife”) has raised four issues on cross-appeal. We find merit in two points raised by Husband, which warrant reversal and remand. The final judgment is affirmed in all other respects.
Life Insurance
In accordance with section 61.08(3), Florida Statutes (2011), the trial court ordered Husband to purchase life insurance to secure the payment of alimony. However, when ordering a party to purchase life insurance, “the trial court must make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation.” Foster v. Foster, 83 So.3d 747, 748 (Fla. 5th DCA 2011). The trial court did not make these required findings. Accordingly, we reverse and remand to the trial court to make the requisite findings.
Passive Appreciation of Non-Marital Property
The trial court also erred when, in determining equitable distribution, it did not consider the passive appreciation of Wife’s non-marital North Carolina property. As part of equitable distribution, Husband was awarded $6783, which was a credit for one-half of the mortgage payments made during the marriage. At the time Wife originally purchased the property, it was worth approximately $13,500. In their Joint Pretrial Statement, the parties stipulated that the property was currently worth $46,837. Although Husband did not make any improvements to the property, a portion of the appreciated value should have been included as a marital asset.
As noted by the Florida Supreme Court:
“[I]n the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.”
Kaaa v. Kaaa, 58 So.3d 867, 872 (Fla.2010) (quoting Stevens v. Stevens, 651 So.2d 1306, 1307-08 (Fla. 1st DCA 1995) (citation omitted)). The trial court, here, did not perform the above calculation. Further, Wife concedes the trial court was presented with insufficient evidence to properly determine the amount of indebtedness encumbering the property at the time of the marriage. Accordingly, we reverse and remand to the trial court to conduct further proceedings consistent with Kaaa.
Affirmed in part and reversed in part.
WARNER and GERBER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010)
- Stevens v. Stevens, 651 So. 2d 1306 (Fla. 1st DCA 1995)
- Foster v. Foster, 83 So. 3d 747 (Fla. 5th DCA 2011)