Opinion
No. 90-138.
July 18, 1991.
Appeal from the Circuit Court, Brevard County, Martin Budnick, J.
James R. Dressler, Cocoa Beach, for appellant.
Andrew A. Graham, Maureen M. Matheson, and Morgan L. Hobbs of Reinman, Harrell, Graham, Mitchell Wattwood, P.A., Melbourne, for appellee.
The appellant, Michael O'Dell, appeals the dissolution judgment regarding the award to his former wife, Linda Jean O'Dell, of a special equity in his premarital property; the distribution of marital assets; the award to the wife of rehabilitative alimony for five years; and the award to the wife of attorney's fees.
The parties were married on January 27, 1979, and have one minor child, Kerry Ayn, born October 20, 1979. At the time of the dissolution, the husband was 42 years old, a high school graduate who had taken some junior college courses, but had not obtained a degree, and was in reasonably good health. The 43-year old wife was a high school graduate who had attended Syracuse University for 1 1/2 years and had completed some medical lab technician training and some minimal computer courses. The husband operated his own automotive repair business, which he had owned prior to the marriage. The wife was employed by City Gas Company in a clerical position.
The final judgment awarded $350 per month in child support, $250 per month in rehabilitative alimony for five years, and distributed the property of the parties. The final judgment also ordered the husband to pay $2,000 towards the wife's attorneys fees.
The husband had previously been married to Debra, and owned a single family residence from that marriage at 1520 Island Drive, Merritt Island, Florida (the premarital residence). Linda lived in that residence prior to the marriage. In February 1987, a quit claim deed was executed from Michael and Debra O'Dell to Michael and Linda O'Dell. The reason for this deed was that Linda's friend, Diane Teague, a real estate salesperson, informed the husband that Florida law required both the husband and wife's name on a deed so that the property would pass to the surviving spouse in the event of the death of the other spouse.
The husband and wife occupied the premarital residence until they purchased a new residence at 1550 Holly Avenue, Merritt Island, Florida (the marital residence) on March 31, 1983. Thereafter, the premarital residence was rented for several years until it was subsequently sold on June 27, 1987. A purchase money mortgage and note was received by Michael and Linda in the original principal amount of $22,000 with interest at 10.5 percent per annum, $296.86 per month, commencing on July 22, 1987. At the time of the trial, the note and mortgage were in default and foreclosure proceedings were to be instituted. The only evidence as to the value of the premarital residence was Linda's testimony that it was worth $25,000.00 when she moved into it in May, 1976, and that it was sold for $45,000.00.
During the marriage, the parties maintained separate checking accounts, and deposited into his/her own account all of the funds earned by that party. There was no commingling of funds with respect to earned income. The husband paid the mortgage and the wife paid for the children's clothing, credit card accounts in her name, utilities and groceries. During this period of time, the wife saved $2,000 from her income. The trial court distributed the assets and liabilities as follows: The wife received a time share, purchased for $2,600; a 1978 Oldsmobile, value unknown; the marital residence; and all of the furniture located within the marital residence. The husband received his business, a 1968 Oldsmobile Cutlass; a 1970-71 jet boat with an inoperable engine; a 1974 Chevrolet pickup truck; a 1971 Chevrolet convertible; a 1971 Chevrolet Monte Carlo; a 1964 Volkswagen; a 1956 Cadillac; miscellaneous auto parts; a 1955 Chevrolet pickup; and a 1931 Chevrolet four-door sedan. The value of these items was disputed by both parties. The husband was also awarded the mortgage proceeds from the premarital property. In addition to the above property distribution, alimony and child support awards, the husband was ordered to pay the sum of $2,000 to the wife's attorney for counsel fees, and ordered to maintain a $50,000 life insurance policy upon himself for the benefit of the minor child. He was also required to maintain health insurance for the minor child. The husband contends the fair market value of the residence is $90,000 with existing mortgages of $45,000 or a total net equity of $45,000. This would give each party a net equity of $22,500. In contrast, the wife argues the net equity is $13,600 per person. However, the husband notes that in the wife's pretrial statement she conceded the net equity in the residence was $45,000.
Actually, it is accurate to say that he retained his business which was commenced prior to the marriage, and in which the wife did not participate.
In respect to the first issue raised on appeal, we hold that the trial court erred in finding that the wife had established a special equity in the husband's premarital property. The trial court found that there was no gift to Linda of the premarital residence but that she had established a special equity in it by reasons of acts of personal labor directed to it — e.g., handling rentals, repairs and maintenance. We disagree with the trial court in regard to this award for two reasons: (1) the wife never claimed a special equity in the premarital property; and (2) there was no evidence adduced to show any extraordinary contribution of funds or services by Linda to the premarital property, as required by Duncan v. Duncan, 356 So.2d 28 (Fla. 1st DCA 1978), cert. denied, 379 So.2d 949 (Fla. 1980), or, assuming enhancement, the dollar value of that enhancement. See Wallace v. Wallace, 453 So.2d 535 (Fla. 5th DCA 1984).
At trial, counsel for the wife candidly advised the trial court that no special equity in the premarital property was asked for. The trial court apparently ignored this concession.
Michael O'Dell's second issue is related to the first. He asserts the trial court made a disparate distribution of the marital assets. The trial court awarded the husband's one-half interest in the marital domicile to the wife as an "offset" for the special equity it erroneously found the wife to have acquired in the husband's premarital property. That award must therefore be reversed along with the special equity claim. The values contended by the parties in regard to the other marital assets are at variance, and the trial judge did not make special factual findings in regard to these values. Nor have we required such factual itemizations in the past. International Community Corp. v. Orange Entertainment Center, Inc., 490 So.2d 169 (Fla. 5th DCA 1986). Other than the erroneous offset, the record does not clearly reveal an arbitrary, fanciful or unreasonable division of the marital assets. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
Given our reversal of the special equity award and the consequent "offset" of the one-half interest in the marital domicile, and the impact of such reversal on the overall distribution scheme of the trial court, we remand for reconsideration of the issues of equitable distribution and rehabilitative alimony. See Noah v. Noah, 491 So.2d 1124 (Fla. 1986); Womble v. Womble, 546 So.2d 24 (Fla. 5th DCA 1989).
REVERSED AND REMANDED.
GOSHORN, C.J., and COBB, J., concur.
W. SHARP, J., concurs specially with opinion.
While I concur with the result of the per curiam opinion, I do so for different reasons. In addition, I believe this case involves some important issues in the family law area, which the majority opinion fails to address. Before reversing the special equity award, we should also address the "tipsy-coachman rule." Did the trial court reach a possibly correct result, although for the wrong reason? Could the special equity award of $22,500 be justified on some other ground established by this record? Because I conclude it cannot be, I agree we should reverse and remand.
Taylor v. Orlando Clinic, 555 So.2d 876 (Fla. 5th DCA 1989), rev. denied, 567 So.2d 435 (Fla. 1990).
I. SPECIAL EQUITY
The sole basis for the trial court's special equity award was the former wife's personal labor and work efforts she spent on the rental property over a nine-year period (1979 to 1987) until it was sold. The record establishes that she maintained and repaired it: recarpeting; adding a garage; painting; minor repairs and lawn care. She also took the responsibility for handling the various renters and rentals over that period of time. This kind of "sweat-equity" is not the kind of stuff out of which a special equity can be created.
Shelow v. Shelow, 550 So.2d 43 (Fla. 3d DCA 1989); Turner v. Turner, 529 So.2d 1138 (Fla. 1st DCA 1988); Keller v. Keller, 521 So.2d 273 (Fla. 5th DCA 1988).
However, the former wife's work efforts clearly could have contributed to the appreciation in value of the residence, after the residence was put into the parties' joint names in 1976, through 1987, when it was sold. The former wife testified that the residence appreciated in value by $20,000 over that time period.
Hanks v. Hanks, 553 So.2d 340 (Fla. 4th DCA 1989); Massis v. Massis, 551 So.2d 587 (Fla. 1st DCA 1989); Sanders v. Sanders, 547 So.2d 1014 (Fla. 1st DCA 1989); Bowen v. Bowen, 543 So.2d 1284 (Fla. 2d DCA 1989); Turner v. Turner, 529 So.2d 1138 (Fla. 1st DCA 1988).
Some of that appreciation could have been awarded to the former wife as a marital asset, although I agree an award of all the husband's share of the net equity in the parties' marital residence (worth $22,500) was unjustifiable solely on this basis. However, the award could still be affirmed to offset an off-balance split of marital assets, if we could determine how the marital assets were actually distributed.
This action was filed on September 30, 1988, one day prior to the effective date of section 61.075, the equitable distribution statute. Section 61.075(3)(a)2 provides that marital assets include the enhancement in value and appreciation of nonmarital assets which results from the expenditure of joint funds or joint work efforts. It codifies preexisting case law. Hanks v. Hanks, 553 So.2d 340 (Fla. 4th DCA 1989); Massis v. Massis, 551 So.2d 587 (Fla. 1st DCA 1989); Harper v. Harper, 546 So.2d 438 (Fla. 2d DCA), rev. denied, 553 So.2d 1165 (Fla. 1989); Bowen v. Bowen, 543 So.2d 1284 (Fla. 2d DCA 1989); Turner v. Turner, 529 So.2d 1138 (Fla. 1st DCA 1988); Crapps v. Crapps, 501 So.2d 661 (Fla. 1st DCA), rev. denied, 511 So.2d 297 (Fla. 1987).
See Tronconi v. Tronconi, 466 So.2d 203 (Fla. 1985).
II. EQUITABLE DISTRIBUTION OF MARITAL ASSETS
In this case, it is impossible for us to determine whether the trial court abused its discretion in making an inequitable distribution of marital assets, because the trial court made no findings concerning what the marital assets were and did not value those that it designated as marital assets, although the values were much in dispute. The five vehicles awarded to the former husband (which apparently pertained to his business) were not valued, and two other vehicles he obtained were not mentioned. The appreciation in value of the premaritally acquired rental residence and the former husband's automotive repair business (which produced a net income of $30,000 per year) during the parties' eleven-year marriage, due to his, her, or their joint work efforts during the marriage, was not determined. The time share awarded to the wife was not valued and the value of the furniture and furnishings in the marital home (awarded to the former wife) was highly disputed, but not resolved by the trial judge.
In such cases, our sister courts have taken the position that the trial court should be required to value the marital assets, based on substantial supporting evidence. Faced with such a record on appeal, it is impossible for an appellate court to say whether or not the distribution of marital assets was equitable, as decreed by the trial judge. It may be fair to the parties within the penumbra of Canakaris. But, we cannot honestly say it was unfair to either party.
See Clemson v. Clemson, 546 So.2d 75, 78 (Fla. 2d DCA 1989); O'Leesky v. Liggett, 544 So.2d 268 (Fla. 2d DCA 1989). See also Carroll v. Carroll, 528 So.2d 931 (Fla. 3d DCA), rev. denied, 538 So.2d 1255 (Fla. 1988); Barrs v. Barrs, 505 So.2d 602 (Fla. 1st DCA 1987); Danoff v. Danoff, 501 So.2d 1361 (Fla. 4th DCA 1987). Although not presently applicable to this case, the Legislature recently addressed this problem by amending section 61.075(3) to require identification and valuation of marital assets in a contested dissolution case. However, since this is a procedural matter, this new section would apply if this case were either remanded to the trial court or again challenged on appeal after the effective date. See Lowe v. Price, 437 So.2d 142 (Fla. 1983); Cutler v. Pelletier, 507 So.2d 676 (Fla. 4th DCA), rev. denied, 518 So.2d 1277 (Fla. 1987).
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980).
One of our options is to simply affirm, and thereby abdicate our responsibility to conduct a meaningful review. A second option is to reverse and remand for specific findings on value. I would opt for the latter course. Although the majority opinion reverses and remands for a reshuffling of the marital-asset deck, without more specific findings below, the same problem for appeal purposes will be recreated.
In re Marriage of Iverson, 508 So.2d 391 (Fla. 1st DCA 1987) (reverse and remand for reconsideration of marital asset which was not included in final judgment); Barrs v. Barrs, 505 So.2d 602 (Fla. 1st DCA 1987) (trial court should make specific findings regarding equitable distribution of property); Grant v. Grant, 506 So.2d 1152 (Fla. 1st DCA 1987) (all provisions of a judgment were reversed and case was remanded to trial court where it was not clear to what extent the trial court considered the husband's pension rights in approving property settlement and determining alimony); Gregg v. Gregg, 474 So.2d 262 (Fla. 3d DCA 1985) (whether a note should have been an asset to one party, rather than a marital asset, could not be determined on appeal where final judgment made no disposition thereof and cause should be remanded); Carroll v. Carroll, 471 So.2d 1358 (Fla. 3d DCA), rev. denied, 482 So.2d 347 (Fla. 1985) (an equitable distribution award will not be upheld and cannot be said to have been equitably made where valuations of property were improperly made, value of assets were hotly contested, and the trial judge estimated the value of the marital home to be "somewhere . . . in the nature of 6 to 800,000 dollars.")
III. REHABILITATIVE ALIMONY
The trial court awarded the former wife $250 per month in rehabilitative alimony for five years. Here, as in Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983), the former wife was employed, but earning considerably less than the husband. Sub judice, the wife earned $641.34 (net) per month; her husband's income was $1,104.33 per month (gross). She could have increased her earnings, if she took a job with Grumman Company, but it would require her to work the night shift, and incur baby-sitting expenses for the parties' nine year old child. Such a move would cause her to take home less than she was then earning.
The rehabilitative alimony award could be justified on the ground that for the next five years the former wife will be required to earn below her potential while she has the primary care and custody of a young child. Rehabilitative alimony awards are not limited solely to spouses who need short-term support to complete a specific course of study or training. Other life circumstances, such as the necessity of raising a young child, of preparing one's self in other ways to "weather the storm" of life alone; of recovering "from the trauma of a dissolution"; may justify an award of rehabilitative alimony.
Agudo v. Agudo, 449 So.2d 909 (Fla. 3d DCA 1984); Hall v. Hall, 363 So.2d 137 (Fla. 2d DCA 1978), cert. denied, 370 So.2d 459 (Fla. 1979).
Campbell v. Campbell, 432 So.2d 666 (Fla. 5th DCA 1983).
Abrams, 1 Florida Family Law, § 31.04[1] at 31-13 (1991). See also, McLauchlin v. McLauchlin, 580 So.2d 812 (Fla. 2d DCA 1991).
However, each piece of a dissolution judgment is an interrelated part of the whole. See Hamlet v. Hamlet, 583 So.2d 654 (Fla. 1991); Noah v. Noah, 491 So.2d 1124, 1128 (Fla. 1986); Diffenderfer v. Diffenderfer, 491 So.2d 265, 268 (Fla. 1986). On remand, the trial court should reconsider the rehabilitative alimony and attorney-fee awards, in light of the final total award. However, given the disparity in the parties' earnings and income, and the absence of any liquid assets or income earning asset awarded to the former wife, I would otherwise have affirmed both awards.
Faulk v. Faulk, 532 So.2d 98 (Fla. 1st DCA 1988); Bowers v. Bowers, 497 So.2d 1357 (Fla. 4th DCA 1986).