Summary
In Rich v. Rich, 337 So. 3d 138 (Fla. 2d DCA 2022), this court concluded that the trial court's findings regarding the interpretation of the antenuptial agreement and the admissibility of the "dumpster documents" were erroneous and that a new trial was required.
Summary of this case from Rich v. RichOpinion
No. 2D20-440
01-14-2022
Sandra Epperson RICH, Appellant, v. John D. RICH; Arnold R. Rich; Bannum, Inc.; Kentucky Management Group, Inc.; 656 R/E Venture, Inc.; Arich Family, LLC; and Arich, LLC, Appellees.
David A. Maney of Maney, Damsker & Jones, P.A., Tampa, for Appellant. Michael J. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellee, John D. Rich. Nancy S. Paikoff and Stephen O. Cole of Macfarlane Ferguson & McMullen, Clearwater, for remaining Appellees.
David A. Maney of Maney, Damsker & Jones, P.A., Tampa, for Appellant.
Michael J. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellee, John D. Rich.
Nancy S. Paikoff and Stephen O. Cole of Macfarlane Ferguson & McMullen, Clearwater, for remaining Appellees.
SMITH, Judge.
In this contentious nine-year marriage dissolution proceeding, the Former Wife, Sandra Epperson Rich, appeals the final judgment of dissolution of her marriage to the Former Husband, John D. Rich. The Former Wife joined as additional defendants Arnold R. Rich (the Former Husband's father) and certain companies associated with Arnold Rich, the Former Husband, or both: Bannum, Inc. (Bannum); Kentucky Management Group, Inc. (KMG); 656 R/E Venture, Inc.; ARICH Family, LLC; and ARICH, LLC (collectively Additional Defendants). Because the trial court erred in granting the Additional Defendants' renewed motion for partial summary judgment and disregarding the Former Wife's evidence related to her claims of comingling, both of which affected the equitable distribution analysis and the attorney's fees analysis, we reverse those portions of the final judgment for a new final hearing. We affirm the remaining portions of the final judgment of dissolution without further comment.
Our holding that the trial court's failure to properly consider certain evidence as it relates to marital assets is dispositive to the Former Wife's claims that the trial court erred in awarding the marital home to the Former Husband and adopting the Former Husband's expert's equitable distribution worksheet, in vacating the outstanding order awarding attorney's fees and costs to the Former Wife, and in granting the Former Husband's motion to modify temporary support. Those portions of the final judgment of dissolution related to these errors shall be reconsidered by the trial court upon remand in accordance with this opinion.
I
The parties have two children, and their marriage was of moderate duration—lasting equally as long as the litigation in this case. Both parties are well-educated attorneys—the Former Wife also holds her LLM in taxation, and the Former Husband has a master's degree in business administration.
At the forefront of this dispute lies an antenuptial agreement (Agreement) and whether the Former Wife waived as part of that Agreement her claim to any interest the Former Husband acquired during the marriage in the companies controlled by the Former Husband's father, along with any income, appreciation, and/or proceeds of any sale of such interests. As shown by the recitals in the Agreement, the parties intended to define their nonmarital assets. The relevant portions of the Agreement provide:
The dissolution proceedings were bifurcated into two phases. In Phase One, the trial court determined the existence, content, and validity of the Agreement after a challenge by the Former Wife. The trial court's ruling on the validity of the Agreement is not the subject of this appeal.
WHEREAS , JOHN and SANDRA desire to fix and determine by antenuptial agreement the right and claim that will accrue to each other by reason of their cohabitation and possible future marriage in the property of the other, as set forth specifically hereinbelow, and in certain property which may be hereinafter acquired, prior to any marriage between the parties or hereinafter acquired by inheritance or gift from the parents of either party, or hereinafter acquired by becoming the beneficiary of a trust established for the benefit of the party if such trust is derived from funds or property from a settlor from whom the party would otherwise inherit, and to accept the provisions of this agreement, in lieu of and in full discharge, settlement and satisfaction of all such rights and claims in and to the said property set forth specifically hereinbelow, and in property hereinafter acquired prior to any marriage between the parties, to property hereinafter acquired by inheritance or gift from the parents of either party, to property hereinafter acquired by becoming the beneficiary of a trust established for the benefit of the party if such trust is derived from funds or property from a settlor from whom the party would otherwise inherit; and in certain limited property acquired after marriage as specifically set forth hereinbelow.
(Emphasis added.)
As to the Former Husband's nonmarital assets at issue here, the Agreement provides that the following relevant assets were "free and clear from any interest, claim or right of [the Former Wife]":
(a) That parcel of real property legally described as: Island Estates, Unit #1, Lot 33, and, commonly known as 656 Normandy Road, Madeira Beach, Florida 33708, with all improvements thereon or replacement thereof.
....
(j) Any real or personal property [the Former Husband] might come to receive in the future by inheritance or gift from a third person, including all income and appreciation of said property, and/or proceeds of any sale of such property.
(k) [The Former Wife] agrees that at any time before or after marriage, [the Former Husband] may establish for himself a savings, money market or brokerage account in his name that will be and remain his sole and divided property, including all future payments and deposits even though made from earnings, before or after the marriage, as well as any earnings, interest, appreciation or equity that may accrue to said account, and [the Former Husband] may make monthly deposits in this account in the amount of up to five hundred dollars ($500) less any marital assets actually used or paid into or applied to from his earnings the real property described in paragraph 1(a), above. This amount is intended to approximately represent one-half the amount of marital assets, if any, applied to the real property described in paragraph 1(a), above, for indebtedness, taxes, maintenance, repairs, improvements or replacements, all as reduced by tax benefits derived by [the Former Husband] and [the Former Wife] from deduction of mortgage interest, points, taxes, or other costs and expenses made on the real property herein described in paragraph 1(a) above. This provision creating sole and separate property shall apply to any assets, or portions or percentages thereof, purchased at any time specifically from the proceeds or balance of the account contemplated in this paragraph.
(l) Any interest [the Former Husband] may come to receive by way of gift, inheritance or otherwise in the business and corporation known as Bannum, Incorporated, and its affiliates and successors.
(Emphasis added.)
Both parties worked at the Former Wife's father's law firm earning modest salaries at the start of the marriage. In 2001, the Former Husband left the law practice to work for his father; he served as corporate counsel and was a shareholder of both Bannum and KMG. Bannum owns a number of subsidiaries that build halfway houses for the Department of Justice. Each Bannum company pays management fees to KMG for the management of these facilities. In 2002, the Former Husband and his father entered into an agreement whereby shares of stock in Bannum and KMG were gifted to the Former Husband—these shares represented twenty five percent of the stock in these two companies. The Former Wife concedes that these shares constitute nonmarital property under the terms of the Agreement.
In 2006, the Former Husband acquired an additional twenty percent interest in Bannum and KMG, which he claims was acquired after a capital call and purchased with nonmarital funds. However, the Former Wife argues that these twenty percent interests were purchased with marital funds and are therefore marital assets subject to equitable distribution.
During the marriage the Former Husband also established his own legal consulting company, 656 R/E Venture, Inc., and opened a number of bank accounts in 656 R/E Venture's name.
The marriage came to an end in September of 2009, when the Former Husband filed for divorce. The Former Wife filed a counterpetition alleging, among other claims, that 656 R/E Venture is a marital asset and that certain nonmarital assets lost their nonmarital character as a result of the Former Husband's commingling of those nonmarital assets with marital assets.
While the dissolution proceedings were pending, in 2012, Arnold Rich, KMG, and ARICH Family filed civil complaints, in what can only be described as "friendly" lawsuits, suing the Former Husband for amounts allegedly owed by the Former Husband pursuant to lines of credit secured by all personal and corporate assets owned by the Former Husband and executed after the dissolution proceedings commenced. The Former Husband did not defend these lawsuits or the execution proceedings on the resulting judgments entered against him. Based on the dissipation of these assets, the Former Wife joined the Additional Defendants contending that they had committed nefarious acts by creating liens for the sole purpose of squandering the marital estate. See Martinez v. Martinez , 219 So. 3d 259, 262 (Fla. 5th DCA 2017) ("Under principles of equity, a trial court may determine whether a third person has acted with a spouse to deprive the other spouse of his or her share in the marital estate. However, for the court to make a complete determination of the case before it, that person ... must be joined as a party to the action ....").
After the commencement of the dissolution proceeding and prior to the "friendly" lawsuits, the Former Husband's father also filed, in his individual capacity and as the majority shareholder of Bannum and KMG, a civil lawsuit against the Former Husband and the Former Wife. In that lawsuit he sought to prevent the Former Wife from claiming an interest in any and all assets related to his companies that were acquired by the Former Husband during the marriage, and among other relief, to enjoin the Former Wife from "taking any action which is inconsistent with the terms and spirit of the [Agreement]."
In Phase One of the final hearing, the trial court determined that the Agreement was valid and enforceable. In its findings, the trial court found all parties to be less than credible: it found the Former Wife's lack of knowledge of a certain bank account "completely fabricated" when on cross-examination she admitted to endorsing and depositing a check in that account, and it found that the Former Husband and Arnold Rich were "less than full and frank regarding their business dealings ... at the time the Parties signed the [Agreement]" but that regardless, their general disclosure was adequate. The trial court deferred the issue of how the Agreement would be interpreted and enforced in the area of equitable distribution for Phase Two of the final hearing, along with the issue of the Former Husband's unclean hands.
With the validity of the Agreement solidified in Phase One, the Additional Defendants filed a renewed motion for partial summary judgment (Renewed Motion), seeking a ruling that pursuant to the Agreement the Former Wife waived any and all interest in any appreciation in value of the gifted twenty-five percent of stock in Bannum and KMG; the later-acquired twenty percent of stock in Bannum and KMG; and all interests formerly held by the Former Husband in his father's businesses. In its order granting the Renewed Motion, the trial court determined that the Agreement was clear and unambiguous as to the use of the term "affiliates" and dismissed with prejudice all claims against the Additional Defendants "which relate to or which are based on [the Former Husband's] ownership interests at any time during the marriage in the companies of [Arnold Rich], or to any income, appreciation and/or proceeds of the sales of such interests," finding such to be contemplated under the Agreement.
A final hearing was conducted almost a decade after the Former Husband filed his petition and after seven appeals. The Former Wife testified that the Former Husband deposited his earnings, including his salary, bonuses, and distributions into various accounts of 656 R/E Venture. According to the Former Wife, these monies were later used to purchase the marital home the parties resided in just prior to these proceedings.
In support of these allegations, the Former Wife admitted into evidence financial records of the Former Husband and the Additional Defendants, including banking and accounting records prepared by third parties. The Former Wife testified that she obtained these financial records—which she contends were withheld from discovery—through nontraditional methods, specifically, rummaging through the dumpster behind the Former Husband's accountant's office. While the Former Husband and the Additional Defendants initially objected to the admission of the "dumpster documents," those objections were ultimately withdrawn, and the Former Husband did not dispute the documents' substantive accuracy or legitimacy. Indeed, the Former Husband and the Additional Defendants conceded at oral argument that they knowingly and voluntarily waived, on the record below, any accountant-client privileges with respect to these "dumpster documents" and stipulated to the admission of those records into evidence at trial.
Throughout the dissolution proceeding, the Former Husband and Arnold Rich persistently attempted to thwart discovery and demonstrated a continued refusal to comply with discovery obligations and orders compelling the same. The Former Husband was found in contempt and sanctioned for his behavior on more than one occasion, and the trial court even went so far as to threaten incarceration should the Former Husband continue his intentional and willful noncompliance.
The Former Husband testified at trial that during the marriage he acquired nonmarital assets—stock; distributions; gifts, both monetary and nonmonetary; real property; and the like—which he would deposit into an account in the name of 656 R/E Venture. The Former Husband testified that he solely owned and incorporated 656 R/E Venture but insisted that the 656 R/E Venture accounts were established to accommodate nonmarital earnings, as contemplated by the Agreement. In any event, according to the Former Husband, whatever nonmarital assets might have existed have since been fully depleted as a result of the dissolution proceedings. He explained that he was forced to take out loans from his father in order to comply with various court orders in the dissolution proceedings, as well as to pay for his own attorney's fees and costs; his father then called the loans and sued him in the above-mentioned "friendly" lawsuits.
After presiding over the three-day final hearing, the trial court entered a final judgment of dissolution of marriage wholly disregarding the Former Wife's substantive evidence supporting her claims of commingling and her claim that some of the interests in the Additional Defendants were marital assets not governed by the terms of the Agreement. The trial court found that it had already determined that the ownership interests of the Former Husband in the Additional Defendants were nonmarital by virtue of the plain language of the Agreement when it granted the Renewed Motion, and accordingly, how the Former Husband treated those assets during the dissolution proceedings was not relevant.
II
We first address the order granting the Renewed Motion. We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000). "Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Id. (citing Menendez v. Palms W. Condo. Ass'n , 736 So. 2d 58 (Fla. 1st DCA 1999) ). "It is the movant's burden to prove the nonexistence of genuine issues of material fact ...." Est. of Githens v. Bon Secours-Maria Manor Nursing Care Ctr., Inc. , 928 So. 2d 1272, 1274 (Fla. 2d DCA 2006). Only after the movant carries his initial burden does the burden shift to the nonmoving party to show that there is an actual issue of material fact that remains to be tried. McNabb v. Taylor Elevator Corp. , 203 So. 3d 184, 185 (Fla. 2d DCA 2016). The burden does not shift to the opposing party unless and until the moving party satisfies its initial burden of demonstrating that no genuine issue of material fact exists.
In its order granting the Renewed Motion, the trial court found that the terms of the Agreement were unambiguous and that "any interest which may be acquired by [the Former Husband] in his father's companies are covered by the [Agreement] and are thus non-marital in character." Hence, the trial court found the Former Wife "waived any claims as to [the Former Husband's] interests in his father's companies, as well as to any income, appreciation and/or proceeds of any sale of such interests." However, that order does not identify any specific companies that should be considered "the father's companies" and does not specify any "affiliates" by name. Importantly, neither the Renewed Motion nor the order granting the Renewed Motion specifically addresses 656 R/E Venture, much less the Former Wife's commingling claims.
The Former Husband's testimony was consistent with other record evidence submitted by Arnold Rich in his amended sworn affidavit in support of the Renewed Motion, attesting that Arnold Rich had no interest in 656 R/E Venture prior to the "friendly" lawsuits. Therefore, 656 R/E Venture cannot be one of the affiliated or successor companies as contemplated by the Agreement.
With regard to the additional twenty percent of stock in Bannum and KMG acquired after the marriage, the trial court found:
In the present context, [the Former Husband's] acquisition of an additional interest in his father's companies, even if by purchase, nevertheless results in his having an interest as to which [the Former Wife] has waived any claim. Moreover, if the capital call paid by [the Former Husband] by accepting the ownership of additional stock should be treated as a purchase (as claimed by [the Former Wife]), then nevertheless the additional stock ownership could not have been marital property because the funds used to pay the capital call were non-marital. See Orloff v. Orloff , 67 So. 3d 271 (Fla. 2d DCA 2011).
Based on these findings, the trial court dismissed with prejudice all claims of the Former Wife as to the Additional Defendants "which relate to or which are based on the Former Husband's ownership interests at any time during the marriage in the companies of Arnold R. Rich, or to any income, appreciation and/or proceeds of the sales of such interests." This was error. While Orloff stands for the proposition that when an asset is acquired entirely with nonmarital funds, it retains its nonmarital classification, this is not the case here. In the instant case, the Former Husband presented no evidence to support his claim that he acquired the additional twenty percent interests by way of nonmarital funds. Cf. Orloff v. Orloff , 67 So. 3d 271, 273 (Fla. 2d DCA 2011) ("[T]his asset must be classified as nonmarital because Mr. Orloff used solely nonmarital assets to form it."). There was a dispute as to how the additional stock was acquired: the Former Wife alleged the Former Husband purchased the stock with marital funds, while the Former Husband maintained that the stock was acquired by way of a capital call that he paid using nonmarital assets. The determinative question is whether the monies the Former Husband used, whether to purchase or to answer a capital call, were marital in nature.
Because the record is void of any evidence supporting the Former Husband's and the Additional Defendants' claims that the additional shares were acquired by use of nonmarital funds—thereby allowing the shares to retain their nonmarital character, whether by terms of the Agreement or under section 61.075(6)(b), Florida Statutes (2009)—the burden never shifted to the Former Wife to introduce evidence that the shares were acquired by the use of marital funds, namely those held by 656 R/E Venture.
Accordingly, the trial court erred in granting summary judgment as it relates to the additional twenty percent interests where there remains a disputed issue of material fact as to whether the additional twenty percent interests were acquired using marital funds, thereby taking them outside the purview of the Agreement. And so it follows that the trial court also erred in dismissing with prejudice the Former Wife's claims against the Additional Defendants.
The Former Wife's claims against the Additional Defendants go beyond whether she is entitled to any portion of the Former Husband's interests in his father's companies. The Former Wife alleged that the Former Husband and his father conspired to deplete the martial estate with the help of the Additional Defendants and that as a result of such fraudulent behavior, she may be entitled to relief from the Additional Defendants. Because these claims exceeded the narrow relief sought in the Renewed Motion, dismissal was improper.
In the final judgment, the trial court compounds this error by relying upon the order granting the Renewed Motion to find:
13. Business Interests: One of the substantial disputes, in this case, revolves around the valuation and usage of the [Former] Husband's ownership interest in various businesses listed under Tab G of the Equitable Distribution Schedule.[ ] This Court has previously found, in its Order Granting Additional Defendants' Motion for Partial Summary Judgment dated December 5, 2017, that the ownership interests of the [Former] Husband in these companies were nonmarital by virtue of the plain language of the parties' [Agreement].
....
The Court finds that the interpretation of this provision of the parties' Antenuptial Agreement as it relates to affiliates and successors encompasses all corporations involved in the owning and
The companies listed in Tab G of the Equitable Distribution Schedule include: 656 R/E Venture, Inc.; Accounting, Etc., Inc.; Bannum Place of Washington DC, Inc.; Kentucky Management Group, Inc.; JJ Leasing of Central Florida, Inc.; Bannum of Sioux City, Inc.; Airrich, LLC [sic]; AJ RE Venture, LLC; Bannum, Inc.; and AJ Moderation, Inc.
operating of half-way houses, which is the purpose of [Bannum]. As such, the [Former Husband's ownership interest[s] in these corporations were nonmarital and what he did with his ownership interest during the pendency of this action is immaterial for purposes of equitable distribution.
(Emphasis added.)
Because the order granting the Renewed Motion made no determination that the Former Husband's ownership interests in any of the specific Additional Defendants was nonmarital under the Agreement, or to the extent the trial court did find, in its previous order, that the Former Husband's interests in Bannum and KMG were nonmarital, that finding as it relates to the additional twenty percent interests in Bannum and KMG was improper. Accordingly, we reverse in part the order granting partial summary judgment and remand for the trial court to consider whether the Former Husband acquired the additional twenty percent interests in Bannum and KBG by use of marital funds. Moreover, because the order granting the Renewed Motion merely finds that companies owned by the Former Husband's father—without identifying any specific company—constitute affiliates of Bannum, the trial court shall, on remand, identify which companies, if any, are affiliates of Bannum.
III
We next address the Former Wife's contentions that the trial court erred in wholly disregarding the "dumpster documents" as substantive evidence. We review the "trial court's characterization of an asset as marital or nonmarital de novo" and review for competent substantial evidence those "factual findings necessary to make [such] legal conclusion." Dravis v. Dravis , 170 So. 3d 849, 852 (Fla. 2d DCA 2015) ; see also Hahamovitch v. Hahamovitch , 174 So. 3d 983, 986 (Fla. 2015) (holding that the plain meaning of a prenuptial agreement controls when the agreement is clear and unambiguous).
The trial court declined to consider the "dumpster documents" as substantive evidence on the dual bases that it found (i) the Former Wife was not credible and (ii) the circumstances of her acquisition and the purported timing of disclosure of the "dumpster documents" raised concerns about fairness and their "authenticity." In the particular context of this case, these findings do not support the trial court's decision to disregard the documents entirely.
As a threshold matter, the trial court as the finder of fact in a dissolution proceeding unquestionably has discretion to determine the credibility of witnesses and to weigh their testimony accordingly. See, e.g. , Shaw v. Shaw , 334 So. 2d 13, 16 (Fla. 1976) ("It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause."). Here, the trial court found the Former Wife to be not credible. However, in the unique context of this case, that credibility finding simply cannot serve as the basis to entirely disregard the "dumpster documents" as substantive evidence. Regardless of the Former Wife's credibility or the circumstances of her acquisition of these financial documents, they were largely created by third parties, including the Additional Defendants, and—more importantly—neither their substantive legitimacy nor accuracy were in dispute below. Indeed, our review of the record shows that some of the "dumpster documents" had in fact been admitted into evidence by the Former Husband in Phase One. Thus, the probative value of the "dumpster documents" did not depend in any meaningful way on the Former Wife's credibility, and the trial court erred to the extent it wholly disregarded them on that basis.
Nor do the court's stated concerns about the documents' "authenticity," the circumstances of their acquisition, or the purported timing of their disclosure warrant disregarding this evidence entirely. As recounted in the factual findings of the final judgment, the trial court questioned the authenticity of the "dumpster documents" obtained by the Former Wife's questionable measures. While the trial court may have found the method in which the Former Wife obtained relevant financial records questionable, the Former Husband and the Additional Defendants clearly stipulated at trial to the admission of the "dumpster documents" and waived any applicable privileges. This stipulation was binding and resulted in the waiver of the Former Wife's obligation to lay a foundation for admission and authentication of these records. See, e.g. , Gunn Plumbing, Inc. v. Dania , 252 So. 2d 1, 4 (Fla. 1971) ("A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court."); Jackson v. Household Fin. Corp. III , 298 So. 3d 531, 535 (Fla. 2020) (recognizing that a party can lay a foundation for the admission of documents by obtaining a stipulation of admissibility from the opposing party). Because the trial court appropriately received these records into evidence, it could not summarily disregard them without even considering their substance. See, e.g. , Durousseau v. State , 55 So. 3d 543, 560-61 (Fla. 2010) (recognizing the "general rule" that even "uncontroverted factual evidence cannot simply be rejected unless it is contrary to law, improbable, untrustworthy, unreasonable, or contradictory." (quoting Walls v. State , 641 So. 2d 381, 390 (Fla. 1994) ).
Here, the documents were admitted into evidence without objection, and all applicable privileges were expressly waived. Thus, the documents had a proper foundation, and their authenticity was not in question. See Jackson , 298 So. 3d at 535 ; Third Fed. Savs. & Loan Ass'n of Cleveland v. Koulouvaris , 247 So. 3d 652, 654 (Fla. 2d DCA 2018) ("Florida law requires the authentication of a document prior to its admission into evidence." (citing § 90.901, Fla. Stat. (2012) )). Further, the Former Husband's unqualified stipulation to admit the documents into evidence waived any objections he may have had regarding their acquisition or disclosure. See Heath v. Thomas Lumber Co. , 140 So. 2d 865, 866 (Fla. 1962) ("Petitioner waived any objection she might have had by her stipulation at the May 17 hearing that the depositions of respondent be admitted in evidence.").
The documents the trial court disregarded constituted much of the Former Wife's substantive evidence. These "dumpster documents" included third-party financial documents relied upon by the Former Wife to prove her claim that some of the assets transferred by the Former Husband to his father during the pendency of this dissolution proceeding constituted marital property. These "dumpster documents" also supported her claims of commingling, which could, of course, result in this nonmarital property losing its nonmarital nature. See Dravis , 170 So. 3d at 852 ("Nonmarital assets may lose their nonmarital character and become marital assets where, as here, they have been commingled with marital assets." (citing Abdnour v. Abdnour , 19 So. 3d 357, 364 (Fla. 2d DCA 2009) )). This evidence would also support the Former Wife's argument that 656 R/E Venture and its accounts were marital in nature due to commingling and that the additional twenty percent of stock in Bannum and KMG, acquired in 2006, was acquired using marital funds.
As such, by declining to even consider the "dumpster documents," the trial court made no independent analysis of the Former Wife's commingling claims or claims that the Former Husband's transfer of certain assets constituted misconduct during the dissolution case which resulted in the dissipation of marital assets. See Dravis , 170 So. 3d at 853 (explaining that misconduct during the dissolution that results in the dissipation of marital assets is the exception to the general rule that assets diminished or dissipated during the dissolution proceedings should not be included in the equitable distribution scheme). In the context of this case, the trial court erred by declining to consider these documents as substantive evidence.
Because these erroneous findings were integral to other factual findings in the final judgment concerning marital assets, equitable distribution, and child and spousal support, a new trial is required. Cf. Orloff , 67 So. 3d at 275. On remand, the trial court shall determine what if any allegedly nonmarital property—including, but not limited to, the twenty percent interests in Bannum and KMG acquired in 2006, the marital home, and any accounts held by 656 R/E Venture—lost their nonmarital character as a result of the commingling with marital property. See Dravis , 170 So. 3d at 852 ("Nonmarital assets may lose their nonmarital character and become marital assets where, as here, they have been commingled with marital assets." (citing Abdnour , 19 So. 3d at 364 )). The trial court shall then equitably distribute all marital assets. Further, based upon the evidence established at the new trial, the trial court shall recalculate child support, determine whether the Former Wife is entitled to any spousal support, and reconsider the parties' motions for attorney's fees and costs. See Orloff , 67 So. 3d at 275. Finally, the trial court shall consider whether any of the Former Husband's actions taken during the dissolution proceedings constitute misconduct that resulted in the dissipation of marital assets.
Affirmed in part, reversed in part, and remanded with instructions.
KHOUZAM and SLEET, JJ., Concur.