CALVIN CALLWOOD, APPELLANT,
v.
TOLEATHA CALLWOOD, APPELLEE

Fla. 4th DCA | 2017-07-05
No. 4D16-1595
May and Ciklin, JJ., concur.
221 So. 3d 1198 Florida District Court of Appeal, Fourth District (2017) 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 appeals final judgment of dissolution of marriage. The appellate court affirms the time-sharing determination but reverses the equitable distribution plan for failure to make required statutory findings and reverses the income determination for child support purposes, finding it unsupported by competent substantial evidence.


Holding

The court reversed the equitable distribution plan because the trial court failed to make required findings of fact referencing the ten factors enumerated in section 61.075(1), Florida Statutes, as mandated by section 61.075(3) in contested dissolution actions. The court also reversed the income determination because the trial court's inference that the husband received $2,646 monthly in undisclosed income was conjecture rather than competent substantial evidence.


Headnotes

[1] A trial court's failure to make required factual findings regarding statutory factors for equitable distribution constitutes reversible error in a contested dissolution a…

[2] A trial court's determination of a party's income for child support purposes must be supported by competent substantial evidence, and mere suspicion or conjecture is insu…

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Key Quotes

“a trial court's failure to consider mandatory statutory factors is error as a matter of law”

Establishes that the trial court's failure to make findings under section 61.075 factors is reversible error even if the overall distribution might be correct

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Facts & Procedural History

The parties disputed equitable distribution of marital assets including a marital home with approximately $400,000 in equity and property in the U.S. …

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Opinion of the Court
Taylor, J.

Taylor, J.

The former husband appeals a final judgment of dissolution of marriage. We affirm on the time-sharing issue without further comment. However, we reverse the equitable distribution plan because the trial court failed to make the required findings regarding the factors enumerated in section 61.075(1), Florida Statutes (2016). We also reverse the trial court’s determination of the husband’s income for child support purposes.

Equitable Distribution

Under the trial court’s equitable distribution schedule, the net equitable distribution to the wife was $86,613, and the net equitable distribution to the husband was $86,614. Additionally, each party was entitled to receive 50% of the proceeds of the sale of the marital home, which had about $400,000 in equity.

The trial court also distributed the parties’ entire interest in a property in the U.S. Virgin Islands called “Estate Peter-borg,” along with the liens and debt thereon, to the wife. The husband hired a contractor to build a single-family dwelling on the property, but construction is not complete.

The husband testified that the Estate Peterborg property was worth around $565,000, a figure he derived from the latest value provided by the tax assessor. However, the husband admitted that the value of the property would go up substantially as soon as an occupancy permit is issued.

The wife also testified the Estate Peter-borg property was currently worth about $500,000 without an occupancy permit, which was similar to the tax assessor’s valuation. However, the wife testified that *1201once an occupancy permit is issued, the property “stands to be worth between three to five million dollars.”

The trial court found that there was no credible evidence as to the value of Estate Peterborg. It nonetheless relied upon the tax assessor’s valuation and found that Estate Peterborg was worth $565,300, less the outstanding liens totaling $635,000, for a total negative value of $69,700. However, the trial court did not actually factor the value of Estate Peterborg into the equitable distribution schedule, as the liability of Estate Peterborg’s negative value of $69,700 is not shown as being distributed to either party.

On appeal, the husband argues that the trial court erred in awarding the Estate Peterborg to the wife without making the findings of fact required by section 61.075, Florida Statutes (2016). We agree.

The standard of review for a trial court’s equitable distribution of marital assets and liabilities is abuse of discretion. Pierre v. Pierre, 185 So.3d 1264, 1265 (Fla. 4th DCA 2016). However, a trial court’s failure to consider mandatory statutory factors is error as a matter of law. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003).

Section 61.075(1), Florida Statutes, “lists ten separate factors for the trial court to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal.” Richardson v. Knight, 197 So.3d 143, 146 (Fla. 4th DCA 2016).

Section 61.075(3), in turn, requires the trial court to make specific findings regarding equitable distribution in any contested dissolution action where there is no stipulation between the parties:

(3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)....

§ 61.075(3), Fla. Stat. (2016) (emphasis added).

The factors listed in section 61.075(1) “should be used in any contested case to justify any equitable distribution of marital assets, fifty-fifty or otherwise.” McMonagle v. McMonagle, 617 So.2d 373, 373-74 (Fla. 5th DCA 1993).

Reversible error occurs where “the equitable distribution in the final judgment is not supported by factual findings with reference to the factors listed in section 61.075(1), as required by section 61.075(3) when a stipulation and agreement has not been entered and filed.” Richardson, 197 So.3d at 146 (citation and internal quotation marks omitted). Although compliance with section 61.075(3)’s requirements of written findings of fact “is not necessary when the parties have reached a valid agreement regarding equitable distribution, these requirements must be met when there is no such agreement and a distribution scheme is ordered by the court.” Id. (citation omitted).

Here, regardless of whether the overall equitable distribution was equal or unequal,1 the trial court erred in entering an equitable distribution plan that was not supported by factual findings in the final judgment with reference to the factors *1202enumerated in section 61.075(1). Such findings were required by section 61.075(3) because this was a contested' dissolution action in which “a stipulation and agreement has not been entered and filed.” .

We decline to reach the husband’s argument that a proper application of the factors under section 61.075(1) would favor an equitable distribution of Estate Peterborg to him or, in the alternative, a distribution of the property to both parties as tenants in common.

Based on the foregoing, we reverse and remand for the trial court to make the requisite findings using the factors outlined in section 61.075(1).

The Husband’s Income

After the husband’s release from prison, the husband began working from home as a dispatcher for a transportation company owned by his girlfriend. According to his most recent financial affidavit, the husband had a net monthly income of $2,103. The husband reported that his proposed/estimated monthly expenses would be $4,749, and claimed a monthly deficit of $2,646.

On the issue of the husband’s income, the trial court found that the husband receives a biweekly salary of $708.04 and rental income of $850 per month. Due to the husband’s criminal conviction and incarceration, the trial court found that the husband’s job prospects were somewhat limited.

The trial court, however, relied on the monthly defipit the husband claimed on his financial affidavit as the basis for finding that the husband was receiving additional income from his- family, his girlfriend, or some other undisclosed source. Specifically, the trial court found that the husband’s “expenses are being paid from an undisclosed source on a regular basis, at least to the extent of the claimed deficit.” Accordingly, the trial court found that .‘the husband “earns or is capable of earning at least $4749 net per month.”

On appeal, the husband argues that the trial court’s determination of his income was based on a misinterpretation of his financial affidavit and was not supported by competent substantial evidence. We agree.

A trial court’s determination of a party’s income for purposes of establishing support obligations must ,be supported by competent substantial evidence. Sallaberry v. Sallaberry, 27 So.3d 234, 236 (Fla. 4th DCA 2010). However, to the extent the trial court’s ruling was based on its interpretation of a written document, the standard of review is de novo. Muir v. Muir, 925 So.2d 356, 358 (Fla. 5th DCA 2006).

The competent substantial evidence standard “is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences.” Fla. Rate Conference v. Fla. R.R. & Pub. Utils. Comm’n, 108 So.2d 601, 607 (Fla. 1959), “Surmise, conjecture.or speculation have been held not to be substantial evidence,” Id.

Gross income includes “[r]eim-bursed expenses or in kind payments to the extent that they reduce- living expenses.” § 61.30(2)(a)13., Fla. Stat. (2016). “Specific dollar values for the in kind contributions and reimbursed expenses must be determined, and the other statutory computations must be performed, in order to arrive at the parties’ net income levels, a proper support amount, and the respective shares of support.” Garcia v. Garcia, 560 So.2d 403, 404 (Fla. 3d DCA 1990).

A party’s income may also include gift income “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” Carlson v. Carlson, 204 So.3d 456, 457 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted).

Here, competent substantial evidence did not ■ support the trial. court’s *1203finding that the husband received additional income from his family, his girlfriend, or another undisclosed' source in the amount of $2,646. Although the husband’s parents provided financial support to the wife while the husband was in prison, there was no evidence that the husband’s parents gave him ongoing gifts that would continue in the future. Further, while the husband worked for his girlfriend and apparently lived with her, there was -no evidence that the husband received reimbursed expenses or in-kind payments from his girlfriend.

The trial court inferred that the husband received additional income of $2,646 because this was the amount of the deficit he claimed on his financial affidavit. Under the facts of this case, such an inference was conjecture, rather than competent substantial evidence.2

First, the written instructions on the financial affidavit state:. “If this is a dissolution of marriage case and your expenses as listed below do not reflect what you actually pay currently, you should write ‘estimate’ next to each amount that is estimated.” Here, the deficit on the husband’s financial affidavit was-derived from “proposed/estimated” expenses that were not reflective of what the husband currently pays, and thus could not support an inference that the husband was currently receiving undisclosed income.

Second, the trial court’s analysis overlooked that the husband had the . ability to fund the claimed deficit with personal assets, at least until the children reached the age of majority. The husband reported a net worth of $672,732, including the roughly $200,000 he stood to receive once the marital home sold.

Finally, even if the deficit on the husband’s financial affidavit constituted competent substantial evidence of undisclosed income, it was fundamentally unfair for the trial court to treat the husband’s deficit differently than the wife’s deficit. If the trial court had applied the same reasoning to the wife’s deficit as .the court applied to the husband’s deficit, the court should have found that the wife was receiving additional income from her boyfriend or some other undisclosed source in an amount equal-to her actual deficit.3

Although we understand the trial court’s frustration with the husband’s seeming lack of credibility on financial issues, the court’s determination of income must nevertheless be supported- by competent substantial evidence. Accordingly, we reverse on this issue and remand for further proceedings consistent with this opinion. On remand, the trial court may, in its discretion, either: (1) reduce the husband’s income by $2,646 and recalculate child support accordingly; or (2) take additional evidence regarding the husband’s income.

Affirmed in part, Reversed in part, and Remanded.

May and Ciklin, JJ., concur.


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Citator

Cited By (19 total)

  • Ortiz v. Paola Ferreyra Ortiz, 306 So. 3d 1081 (Fla. 3d DCA 2020)
    …in subsection (1).” While we review the trial court’s factual findings under an abuse of discretion standard, failure to make the factual findings is an abuse of discretion and has been held to be reversible error. See, e.g., Callwood v. Callwood, 221 So. 3d 1198, 1201–02 (Fla. 4th DCA 2017) (“Reversible error occurs where ‘the equitable distribution in the final judgment is not supported by factual findings with reference to the factors listed in section 61.075(1), as required by section 61.075(3) when a st…
  • Fernandez-Tretiakova v. Fernandez, 313 So. 3d 623 (Fla. 4th DCA 2021)
    …mpelled to reverse the equitable distribution plan and remand for the trial court to make the required factual findings in the final judgment with reference to the factors enumerated in section 61.075(1), Florida Statutes. See Callwood v. Callwood, 221 So. 3d 1198, 1202 (Fla. 4th DCA 2017) (holding that factual findings with reference to the factors enumerated in section 61.075(1) were required by section 61.075(3) in a contested dissolution action in which “a stipulation and agreement has not been entered an…
  • Hines v. Williams, 384 So. 3d 237 (Fla. 4th DCA 2024)
    …ourt failed to make these findings even though the former wife’s motion for rehearing had reminded the court that such findings were statutorily required and, without such findings, reversible error could occur. As we stated in Callwood v. Callwood, 221 So. 3d 1198 (Fla. 4th DCA 2017): Reversible error occurs where the equitable distribution in the final judgment is not supported by factual findings with reference to the factors listed in section 61.075(1), as required by section 61.075(3) when a stipulation…

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