ELIZABETH MOODY

v.

ROBERT NEWTON

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

ELIZABETH MOODY,

Appellant,

v. Case No. 5D17-1967

ROBERT NEWTON,

Appellee.

________________________________/

Opinion filed February 1, 2019

Appeal from the Circuit Court for Orange County, Margaret H. Schreiber, Judge.

Nicole L. Benjamin, of Benjamin Law Firm, P.A., Orlando, for Appellant.

Robert Newton, Orlando, pro se.

EDWARDS, J.

Elizabeth Moody (“Former Wife”) appeals the Final Judgment of Dissolution of Marriage. Specifically, she argues the lower court erred in: (1) treating her engagement and wedding rings as marital assets; (2) arriving at an improper equitable distribution scheme; (3) imputing an improperly low income to Robert Newton (“Former Husband”); (4) failing to award her the marital home; (5) failing to award her durational alimony; and

2 (6) failing to award her attorney’s fees. For the reasons set forth below, we affirm in part and reverse in part.

First, Former Wife argues the court erred in classifying her wedding ring as a marital asset. Generally, engagement and wedding rings are gifts to the wife and should not be included in the equitable distribution scheme. Randall v. Randall, 56 So. 3d 817, 818 (Fla. 2d DCA 2011) (“The general rule is that an engagement ring is nonmarital property.”); Melvik v. Melvik, 669 So. 2d 328, 330 (Fla. 4th DCA 1996) (“It was error for the trial court to consider the wife’s premarital property, such as her engagement and wedding rings which were found to be gifts to the wife, in the equitable distribution scheme.”). At trial, Former Wife testified that the “ring” actually consisted of three rings, the most valuable of which was the engagement ring with a 2.2 carat stone, a wedding ring, and a third band that she valued at $1000, which they purchased a year after their wedding. Given the evidence presented at trial, it was error to treat the engagement ring and wedding ring as marital property subject to equitable distribution. On remand, the trial court shall enter an amended judgment excluding the engagement ring and wedding ring from equitable distribution. The third ring, which Former Wife valued at $1000, should be classified as a marital asset, unless the parties stipulate otherwise.

Second, Former Wife argues that the court arrived at improper values for the parties’ two cars, Former Husband’s utility trailer, and the marital home. Although Former Wife makes this argument on appeal, she failed to preserve the issue below. Because the alleged error first appeared in the final judgment, Former Wife was required to bring this matter to the lower court’s attention in a motion for rehearing. See Hamilton v. R.L. Best Int’l, 996 So. 2d 233, 234 (Fla. 1st DCA 2008). While she did move for rehearing,

3 she failed to raise any issue with these particular assets. See Hentze v. Denys, 88 So. 3d 307, 311 (Fla. 1st DCA 2012) (“Although the former husband did file a motion for rehearing, it did not address the issue of statutory interest.”). We find that Former Wife waived these arguments; accordingly, we affirm as to these valuation issues.

Third, Former Wife argues that the court erred in imputing such a low income to Former Husband. Former Husband was self-employed as a long-haul trucker who had voluntarily become underemployed after the petition for dissolution was filed. Former Husband presented his tax returns as evidence that his gross income, ranging from $163,000 to $184,000 per year, was greatly reduced by operating expenses, fuel, and maintenance, resulting in net income ranging from $14,500 per year to a loss of $450 per year. The trial court found Former Husband’s tax returns incredible. Former Husband’s financial affidavits reflected his net business income ranged from $1100 to $1550 per month. Former Wife argued that the trial court should consider his reported gross income, but she offered no evidence of appropriate operating expense reductions. Ultimately, the trial court determined Former Husband’s annual net income to be $31,200. The trial court based that determination on “the standard of living established by the family during the marriage and the contribution [Former Husband] provided to the family expenses.”

“Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth.” Newman v. Newman, 221 So. 3d 642, 644 (Fla. 4th DCA 2017) (quoting Ugarte v. Ugarte, 608 So. 2d 838, 840 (Fla. 3d DCA 1992)). “Thus, when the circumstances suggest that a self-employed spouse has not accurately reported his or

WALLIS and LAMBERT, JJ., concur.