NANCY B. HUA v. DENNIS H.L. TSUNG , 2017 Fla. App. LEXIS 9638 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
NANCY B. HUA,
Appellant,
v.
DENNIS H.L. TSUNG,
Appellee.
No. 4D15-4213
[July 5, 2017]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dennis D. Bailey, Judge; L.T. Case No. FMCE13009407
44 90.
Dirk Lorenzen of Lorenzen Law, Coral Gables, for appellant.
Steven Friedman of Law Office of Steven Friedman, Pembroke Pines, for
appellee.
ON MOTION FOR REHEARING
FORST, J.
We grant the motion for rehearing, withdraw our previously issued
opinion, and substitute the following.
Appellant Nancy Hua (“Wife”) appeals the trial court’s final judgment of
dissolution of marriage. Primarily, Wife contends that the trial court erred
by (1) not awarding her permanent alimony; (2) failing to classify certain
stock as assets in determining support; (3) ordering the parties to pay the
proceeds of the sale of rental property to a certain non-party creditor; and
(4) denying her motion for attorney’s fees. We address these arguments
below, while affirming without discussion the other issues raised in Wife’s
appeal, including the classification of certain loans as marital and the
legality of the timesharing plan with respect to the couple’s children.
Background
Wife’s then-husband Dennis Tsung (“Husband”) filed for divorce in
2013. By that time, the couple had been married for seventeen-and-a-half
years. Both spouses were in their early forties by the time of divorce.
Husband was the principal source of income throughout the marriage
(abetted by the generosity of his parents), while Wife was both homemaker
and, in the last years of the marriage, a stay-at-home mother. There was
considerable evidence introduced at trial concerning Husband’s various
business ventures throughout the marriage. At the time of divorce,
Husband was a part owner of a restaurant. He lived in Brazil with a new
girlfriend and their two minor children. Wife, meanwhile, remained in
Broward County, Florida, where the couple had lived, taking care of the
couple’s children who were also minors.
Throughout the marriage, Husband and Wife received generous gifts
from Husband’s parents. In 1999, Husband’s father purchased the couple
a house in California valued at approximately $800,000. The house was
later sold. Then, when the couple moved to Broward County, Husband’s
parents again purchased a marital home for the couple. Evidence at trial
suggested the Broward County home’s value was about $650,000 to
$700,000. The couple also decided to purchase a rental home (hereinafter
“rental property”), subject to a mortgage. The value of the rental property
was about $300,000 to $350,000. When Husband could no longer afford
to pay the mortgage sometime around 2007 or 2008, his father loaned him
approximately $260,000 to pay it.
Although the couple lived a relatively comfortable life during their
marriage, Husband’s financial affidavits and tax returns demonstrated
that lifestyle was due in large part to his father. Husband’s latest amended
financial affidavit, for 2014, showed that he earned a monthly gross
income of $6,295. He listed $1,281,300 in total assets, and over
$1,035,199 in total liabilities. Husband reported that his father gave him
a substantial amount of assets, but also testified that there were strings
attached in the form of great debt. In fact, at trial, the court found that
Husband’s father loaned Husband approximately $1,410,000 over the
course of the marriage. On his financial affidavit, Husband also claimed
he owned contingent assets—shares in a company called DSC Holdings
Limited—valued at $885,000. Evidence admitted at trial showed the true
value of these shares to be in excess of one million dollars. As for Wife,
she made no income, and argued at trial that her monthly reasonable
living expenses exceeded $20,000. However, the trial court determined
that Wife’s temporary alimony award, which totaled $2,500 a month and
included an unspecified amount of rental income from the rental property,
was sufficient to cover her reasonable living expenses.
As such, the trial court fashioned its alimony award after the temporary
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one. It awarded Wife “conditional rehabilitative alimony,” where Wife
would receive $2,500 a month for two years as she attended nursing
school, which she expressed interest in and which an expert testified she
could accomplish in that time frame. Husband would pay the costs of
nursing school, which could total up to $12,000. The expert, finding Wife
to be in good health, also concluded Wife could earn between $49,920 and
$58,240 per year as a full-time nurse.
Analysis
A. Alimony Award
We review the trial court’s determination of the type of alimony to award
for an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d 1197,
1203-04 (Fla. 1980). The trial court’s judgment must be supported by
competent, substantial evidence. Gray v. Gray, 103 So. 3d 962, 963 (Fla.
1st DCA 2012). “However, ‘[w]here a trial judge fails to apply the correct
legal rule . . . the action is erroneous as a matter of law.’” Ondrejack v.
Ondrejack, 839 So. 2d 867, 870 (Fla. 4th DCA 2003) (alterations in
original) (quoting Kennedy v. Kennedy, 622 So. 2d 1033, 1034 (Fla. 5th
DCA 1993)).
“In determining whether to award alimony or maintenance, the court
shall first make a specific factual determination as to whether either party
has an actual need for alimony or maintenance and whether either party
has the ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat.
(2014) (emphasis added); see also Sherlock v. Sherlock, 199 So. 3d 1039,
1043 (Fla. 4th DCA 2016). After making these two requisite (“shall”)
“specific factual determination[s],” the court must then determine the type
of alimony to award. § 61.08(2), Fla. Stat. (2014). The alimony statute
lists several factors for a trial court to consider when choosing the type of
alimony, including (“but not limited to”) the duration of the marriage, age
of the parties, financial resources of the parties, earning capacities of the
parties, employability of the parties, and contribution of the parties to the
marriage. Id.
Once the trial court determines that alimony is appropriate, it must
choose what type of alimony to award. There is a rebuttable presumption
in the alimony statute that a marriage lasting more than seventeen years
is a long-term marriage. 1 § 61.08(4), Fla. Stat. (2014). There is also a
1 “The length of a marriage is the period of time from the date of marriage until
the date of filing of an action for dissolution of marriage.” § 61.08(4), Fla. Stat.
(2014).
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rebuttable presumption in our case law and that of every sister District
Court that an award of permanent alimony is appropriate after dissolution
of a long-term marriage. Fichtel v. Fichtel, 141 So. 3d 593, 595 (Fla. 4th
DCA 2014); Motie v. Motie, 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014);
Broemer v. Broemer, 109 So. 3d 284, 289-90 (Fla. 1st DCA 2013);
Alcantara v. Alcantara, 15 So. 3d 844, 845-46 (Fla. 3d DCA 2009); Schlagel
v. Schlagel, 973 So. 2d 672, 676 (Fla. 2d DCA 2008). “Neither age nor a
spouse’s ability to earn some income will alone rebut the presumption.”
Motie, 132 So. 3d at 1213.
As we recently explained, “[i]n almost every case [involving one spouse
who has historically been the homemaker in a long-term marriage and a
subsequent disparity in income], courts have found that permanent
alimony was appropriate.” Dickson v. Dickson, 204 So. 3d 498, 503 (Fla.
4th DCA 2016) (alterations in original) (quoting Motie, 132 So. 3d at 1213).
However, this is by no means an irrebuttable presumption. A trial court
can overcome it by making detailed findings of fact regarding a spouse’s
need and the other spouse’s ability to pay, as well as by considering all the
relevant statutory factors listed in section 61.08(2).
The trial court’s final judgment implicitly determined that Wife would
have a need for alimony, but not beyond the $2,500 she had been receiving
each month pursuant to the temporary spousal support order
(supplemented by a separate child support provision, gross rental income
from the couple’s rental property, and Husband’s payment of taxes and
insurance for the marital property), and that this monthly payment would
end in two years, at which time the trial court expected Wife to be holding
a full-time job. The final judgment does not include any “specific factual
determination” with respect to Husband’s ability to pay alimony beyond
finding that Husband’s “current living expenses to support himself, his
family in Brazil and his two children born of this marriage is not sufficient
to pay the rehabilitative alimony award.” The judgment appears to
conclude that, until the marital home is sold (entitling Husband to half of
the proceeds), Husband lacks the ability to pay alimony, even the limited
rehabilitative alimony conditionally awarded by the trial court.
As noted above, this was a “long-term marriage” and, as such, “the trial
court was required to apply the rebuttable presumption in favor of
permanent alimony.” Dickson, 204 So. 3d at 503. The trial court’s
judgment erroneously fails to make any reference to this presumption in
choosing to award Wife conditional rehabilitative alimony, although the
judgment does state that the factors enumerated in section 61.08(2) were
considered, including the duration of the marriage.
4
The final judgment of dissolution awarded Wife rehabilitative alimony,
consisting of $2,500 per month for two years (which the court erroneously
calculated as totaling $62,000), plus Husband paying up to $12,000 in
tuition for Wife to attend nursing school. The $2,500 per month is
conditioned upon (1) Wife attending school to obtain her degree, and (2)
the sale of the marital home (to provide funds for Husband to make the
monthly support and tuition payments). In choosing conditional
rehabilitative alimony, the trial court imputed to Wife “income equal to
$2,500 per month,” and also took into account, “[a]s an element of
support,” that Wife would be either living in the couple’s rental property
(she would need a new residence with the marital home being sold), or she
would be receiving gross rental income from this rental property, with
Husband paying half of the tax and insurance. 2 Thus, if Wife chooses not
to attend nursing school, the final judgment leaves her with no
alimony/support outside the precariously situated rental income, not even
the $2,500 per month that she received as temporary support.
In the absence of specific findings and determinations as set forth
above, the best course of action is to remand the issue of alimony to the
trial court to (1) make explicit findings as to Husband’s ability to pay
alimony, and (2) recognize the presumption in favor of permanent alimony.
See Broemer, 109 So. 3d at 290 (reversing and remanding in part because
the court failed to address the initial rebuttable presumption of permanent
alimony, let alone provide an explanation as to why it was not awarded).
Should the trial court once again choose an alternative to permanent
alimony, it must do so based on explicit findings referencing the factors
set forth in § 61.08(2). Moreover, if upon remand the award is conditional
(as it was in the final judgment at issue), the trial court must set forth an
alternative alimony option if the conditions are not met.
B. Consideration of Husband’s Ownership of Shares in DSC Holdings
Limited in Calculating the Parties’ Assets
On appeal, Wife contends that the trial court erred by failing to consider
thirty-four percent of the shares of DSC Holdings Limited, valued at more
than one million dollars, as assets of Husband to be used in calculating
support. We agree.
At trial, Husband’s father testified that he transferred the shares to
2The judgment stipulates that this property must be sold if Wife remarried, if
Wife cohabitated with another person, or when the youngest child attained
majority, with the proceeds of that sale encumbered by a $260,000 loan from
Husband’s father that was made for the purchase of the home.
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Husband in 2005. Husband was thus the legal owner in name of the stock.
As the First District Court of Appeal explained, albeit in a different context:
In our analysis, we start with the principle that, corporate
records provide a prima facie evidentiary basis for determining
ownership of corporate stock. Thus, when a party’s name
appears as a shareholder in the official corporate records, the
burden is on that party to establish that he or she was not a
shareholder. Some courts have expressed this principle in
terms of estoppel, so that a person who permits his name to
be registered on the books of the corporation as the owner of
shares of stock may be estopped from disputing his ownership
of the shares.
Sackett v. Shahid, 722 So. 2d 273, 275-76 (Fla. 1st DCA 1998) (citations
omitted). Here, we too start our analysis of ownership of the stock by
looking to who was the title owner. At trial, Wife submitted
incontrovertible evidence that it was Husband. Moreover, on the stand,
both Husband and his father agreed that the shares were in Husband’s
name.
Our decision regarding ownership of the stock is also guided by the
principles of estoppel. At trial, Husband’s father directly testified that the
reason he placed ownership of the stock in his son’s name was to avoid
paying a forty percent “death tax” in Taiwan. The father acknowledged
that he intended to bequeath the stock to Husband upon the father’s
death, but did not want to pay taxes. To accomplish this tax-avoidance
objective, he needed to actually transfer ownership of the stock to his son
before his (the father’s) death. Now, though, it appears Husband and his
father want it both ways. They wish to circumvent foreign tax obligations
by placing ownership of the stock in Husband’s name, yet circumvent our
State’s marital dissolution support laws by arguing those same assets are
in reality the father’s. 3 We are not persuaded.
One of our sister courts, in Collinson v. Miller, 903 So. 2d 221 (Fla. 2d
DCA 2005), outlined the basis of our rejection of Husband’s argument.
There, the decedent’s children also attempted to enforce a type of
agreement that sought to evade taxes. Id. at 226. The court struck the
arrangement down, explaining:
3 We take no view on the legality of Husband’s father’s actions to circumvent
foreign tax law. Our opinion is limited to noting that if the father had to place
the shares in his son’s name to avoid a tax, which he claims he did at trial, then
he cannot as a matter of estoppel disavow the consequences of his actions.
6
It seems odd, to say the least, that a court of equity would
impose a constructive trust in favor of the Miller children . . .
against a third party, to enforce an oral agreement specifically
designed to evade taxes. If the constructive trust were upheld,
it appears the Miller children would successfully obtain this
property without paying the federal taxes due and owing
based upon the agreement they sought to enforce.
Id. The court subsequently did not impose a constructive trust over the
property in question. Id. at 228. We too are loath to grant Husband’s
request that we impose as an equitable remedy a resulting trust in the
shares for his father. Instead, we hold that the shares were non-marital
assets owned by Husband. 4
We accordingly reverse and remand for the trial court to reconsider and
recalculate its determinations of the various forms of support with the
understanding that the shares at issue are assets of Husband rather than
of his father. See § 61.08(2)(d), Fla. Stat. (2014) (requiring consideration
of the financial resources of both parties, including nonmarital assets, in
determining alimony); § 61.16(1) Fla. Stat. (2014) (requiring consideration
of parties’ financial resources in determining whether to award attorney’s
fees); § 61.30(11)(a)7. Fla. Stat. (2014) (allowing deviation from minimum
child support based on the total available assets of relevant parties).
C. Equitable Distribution of Proceeds from the Sale of the Rental Property
We review de novo whether a trial court has jurisdiction in a marital
dissolution action to adjudicate the rights of a third-party creditor.
Sanchez v. Fernandez, 915 So. 2d 192, 192 (Fla. 4th DCA 2005).
As noted above, the trial court awarded Wife the choice of living in the
rental property or receiving the gross rental income until the home is sold,
either voluntarily or because of one of the triggering conditions already
described. The dissolution judgment discussed the equitable distribution
of the proceeds from the sale of the rental property, noting that “[u]pon
sale of the rental home . . . the net sale proceeds shall be divided 50% to
the Petitioner [Husband] and 50% to the Respondent [Wife], after satisfying
the $260,000 U.S. loan owed to Tsung [Husband’s father].” The trial court
also ordered that “[t]he $260,000.00 Tsung debt shall be satisfied at the
4Wife conceded at trial, and made no argument to the contrary in her briefs on
appeal, that the shares were nonmarital assets, gifted to Husband alone both
prior to and during the marriage.
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time that this property is sold.”
The trial court erred as a matter of law in directing the parties to repay
Husband’s father upon sale of the rental property. “In [a] dissolution
action, the trial court does not have jurisdiction to adjudicate property
rights of nonparties.” Noormohamed v. Noormohamed, 179 So. 3d 379,
380 (Fla. 5th DCA 2015) (alteration in original) (quoting Minsky v. Minsky,
779 So. 2d 375, 377 (Fla. 2d DCA 2000)). Although a trial court in a
dissolution judgment certainly can identify marital assets and liabilities,
and allocate them to the parties pursuant to section 61.075(3), Florida
Statutes (2014), it cannot adjudicate a debt. Here, by awarding part of the
proceeds of the sale of the rental property to the father, the court
essentially placed an equitable lien on the property to allow the father to
secure repayment of the loan. The court thus converted him from an
unsecured creditor into a secured one. On remand, the father can only
pursue the debt, if he so chooses, by instituting a separate action. See
Labato v. Labato, 433 So. 2d 620, 621 (Fla. 4th DCA 1983) (holding the
trial court impermissibly imposed an equitable lien on the property by
adjudicating the rights of non-parties, but reversing without prejudice to
allow the non-parties to institute a separate action).
D. Attorney’s Fees Award
We review a decision on a motion for attorney’s fees for an abuse of
discretion. Henry v. Henry, 191 So. 3d 995, 999 (Fla. 4th DCA 2016).
“An award of attorney’s fees and costs is based on each spouse’s
respective need and ability to pay.” Fichtel v. Fichtel, 141 So. 3d 593, 596
(Fla. 4th DCA 2014); see also § 61.16, Fla. Stat. (2014). In light of our
reversal with respect to Husband’s ownership of the shares in DSC
Holdings Limited and our remand of the alimony issue, it is appropriate
that we also remand Wife’s request for Husband to pay her attorney’s fees
and costs and direct the trial court to revisit this issue, making “specific
findings of fact—either at the hearing or in the written judgment—
supporting its determination of entitlement to an award of attorney’s fees
and the factors that justify the specific amount awarded.” Arena v. Arena,
103 So. 3d 1044, 1046 (Fla. 2d DCA 2013). “[V]ague findings present an
obstacle to meaningful appellate review.” Id. at 1047.
Conclusion
We recognize the inherent difficulty for a trial court tasked with
preparing a final judgment of dissolution in a situation in which the parties
have significant assets but limited income. The instant case was certainly
8
not “an ordinary divorce.”
As set forth above, we reverse the final judgment as to the support
determinations affected by the ownership status of the DSC Holdings
Limited shares and the treatment of the proceeds from the sale of the
rental property. We further reverse and remand with instructions with
respect to the awards of alimony and attorney’s fees. In revisiting these
issues, the trial court must make explicit findings and conclusions and
recalculate its equitable distribution award in light of Husband’s
“economic circumstances” being different from those initially considered
by the court. See § 61.075(1)(b), Fla. Stat. (2014).
Affirmed in part, reversed in part, and remanded.
TAYLOR and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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