BRENT ALLAN SMITH, APPELLANT,
v.
JODIE BEAR SMITH, APPELLEE
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Brent Allan Smith appeals the final judgment dissolving his marriage to Jodie Bear Smith, challenging the trial court's equitable distribution of marital assets and award of attorney's fees. The appellate court reversed the inclusion of a Scion automobile purchased after the petition for dissolution was filed, but affirmed the remainder of the judgment and dismissed the attorney's fees challenge as premature.
The court held that the Scion, purchased after the petition for dissolution was filed, should not have been included in the equitable distribution scheme because assets not in existence on the date of filing should not be classified as marital. The court also held that it lacked jurisdiction to review the attorney's fees award because the trial court's ruling only addressed entitlement and did not set a specific amount.
[1] Assets and liabilities not in existence on the date of the filing of the petition for dissolution of marriage should not be classified as marital.
[2] A trial court's determination of whether an asset is marital or nonmarital is reviewed de novo.
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Join FLexlaw to unlock all legal intelligence“Assets and liabilities not in existence on that date should not be classified as marital.”
Establishes the governing legal standard for classification of assets in equitable distribution when no marital settlement agreement exists
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Join FLexlaw to unlock all legal intelligenceMr. Smith owned a Ford truck at the time the petition for dissolution was filed, which he sold for approximately $3,000 during the pendency of the div…
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Brent Allan Smith appeals the final judgment dissolving his marriage to Jodie Bear Smith. Mr. Smith raises numerous issues on appeal. We reverse as to one of the vehicles included as a marital asset in the equitable distribution scheme; we dismiss as premature Mr. Smith’s appeal of the award of attorney’s fees and costs. In all other aspects, we affirm.
We review de novo a trial court’s determination of whether an asset is marital or nonmarital. Broadway v. Broadway, 132 So.3d 953, 954 (Fla. 1st DCA 2014). Because the parties in this case did not enter into a marital settlement agreement, the applicable date for determining whether assets and liabilities are classified as marital or nonmarital is the date of the fifing of the petition for dissolution of marriage. See § 61.075(7), Fla. Stat. (2012). “Assets and liabilities not in existence on that date should not be classified as marital.” Fortune v. Fortune, 61 So.3d 441, 445 (Fla. 2d DCA 2011).
In this case, the trial court included as marital assets in the equitable distribution scheme both a Ford truck, which was owned by Mr. Smith at the time the petition was filed but sold during the pendency of the divorce, and a Scion, which was purchased by Mr. Smith after the date of fifing but prior to the final judgment.1 We conclude that it was error to include the Scion in the equitable distribution scheme. See id. Accordingly, we reverse and direct the trial court to strike the Scion from the equitable distribution scheme and reduce the equalizing payment owed to Ms. Smith by $1500.
Mr. Smith also alleges that the trial court abused its discretion in awarding attorney’s fees and costs to Ms. Smith. The trial court’s ruling on attorney’s fees and costs only addressed entitlement and did not set an amount. Thus, we lack jurisdiction to review this issue. See Card v. Card, 122 So.3d 436, 437 (Fla. 2d DCA 2013) (dismissing for lack of jurisdiction the former wife’s challenge to an award of attorney’s fees and costs where the final judgment determined only entitlement and not amount); see also McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994) (holding “an order which only determines the right to attorney’s fees without setting the amount is a nonappealable, nonfinal order”). Accordingly, we dismiss for lack of jurisdiction Mr. Smith’s challenge to the award of attorney’s fees and costs.
Affirmed in part; reversed in part with directions; dismissed in part.
ALTENBERND, CASANUEVA, and KHOUZAM, JJ., Concur.
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Librizzi v. Librizzi, 228 So. 3d 593 (Fla. 2d DCA 2017)…er husband also challenges the trial court’s award of fees to the former wife. However,, because the order on appeal only determines entitlement, not the amount of the fee award, this court lacks jurisdiction to review the issue. See Smith v. Smith, 169 So. 3d 220, 221 (Fla. 2d DCA 2015). Accordingly, the former husband’s appeal of the fee award is dismissed for lack of jurisdiction. Affirmed in part; reversed in part with instructions; dismissed in part. • VILLANTI, C.J., and SALARIO, J., Concur.…
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Pulling v. Billmyre Enters., Inc., 223 So. 3d 1086 (Fla. 2d DCA 2017)…to Billmyre, determined an entitlement to attorney’s fees, and ordered the parties to mediation to “address all pending issues regarding the awards of costs and attorney’s fees.” This order is also a nonfinal nonappealable order. See Smith v. Smith, 169 So. 3d 220, 221 (Fla. 2d DCA 2015) (“[A]n order which only determines the right to attorney’s fees without setting the amount is a nonappealable, nonfinal order.” (quoting McIlveen v. McIlveen, 644 So. 2d 612, 612 (Fla. 2d DCA 1994))); Nastasi v. Thomas, 88 So…
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Humphrey Igberaese v. Vill. of Stoneybrook, 239 So. 3d 1284 (Fla. 2d DCA 2018)…ment to fees, see Pulling v. Billmyre Enters., Inc., 223 So. 3d 1086, 1087 (Fla. 2d DCA 2017) ("[A]n order which only determines the right to attorney's fees without setting the amount is a nonappealable, nonfinal order." (quoting Smith v. Smith, 169 So. 3d 220, 221 (Fla. 2d DCA 2015))). Consequently, we affirm the final judgment, but dismiss without prejudice that portion of Mr. Igberaese's appeal challenging the Association's entitlement to attorney's fees. See Salem v. Abram, 868 So.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McILVEEN v. McILVEEN, 644 So. 2d 612 (Fla. 2d DCA 1994)
- Fortune v. Fortune, 61 So. 3d 441 (Fla. 2d DCA 2011)
- Suzzann Evans Card v. Card, 122 So. 3d 436 (Fla. 2d DCA 2013)
- Broadway v. Broadway, 132 So. 3d 953 (Fla. 1st DCA 2014)