DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FLETCHER LEE SANDERS,
Appellant,
v.
ULYSSES PETERSON-SANDERS,
Appellee.
No. 4D20-2082
[May 26, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Diana A. Keever-Agrama, Judge; L.T. Case No. 50-2018-
DR-007854-XXXX-NB.
Erika A. Powers of Jeff T. Gorman Law Offices, Stuart, for appellant.
Karen O’Brien Steger of Steger Law, Stuart, for appellee.
FORST, J.
Former Husband appeals from the trial court’s final judgment of
dissolution of marriage, raising four issues. We agree in part with Former
Husband’s arguments and thus reverse and remand for further
proceedings in accordance with this opinion.
Background
The parties married in 2008, and Former Wife vacated the marital home
in 2018. Soon thereafter, both parties petitioned for dissolution of
marriage. There were no child custody or child support issues; the
proceedings primarily focused on the equitable distribution of the parties’
assets, primarily the marital home and two of the parties’ three vehicles.
The bench trial was set for three hours, and the trial court reminded the
parties of the need to finish the trial within this time frame. In addition to
the parties, the only other witness was a real estate agent, who testified
regarding a potential sale of the marital home.
Former Husband testified that he earned an annual salary of $35,000
for the past eight years and that Former Wife was the “bread winner” of
the relationship. Former Wife had earned an annual salary of
approximately $125,000 for the prior three years but had recently been
laid off and was searching for a new job at the time of trial.
The primary assets of the former couple consisted of the marital home
and three vehicles. 1 The court ordered the sale of the marital home to
reduce the marital debts and awarded each former spouse one of the
vehicles deemed to be of equivalent value. Each former spouse also had
two retirement accounts. Following the loss of her job, Former Wife
liquidated both of her accounts to pay for living expenses. Former
Husband failed to show any animus or intentional misconduct, and thus
the trial court deemed the funds from both accounts to be nonmarital.
Former Husband’s retirement accounts were both deemed to be marital
assets because he did not present any evidence as to the amount of the
premarital contributions.
The former couple had also accumulated substantial liabilities
throughout the marriage as detailed in each party’s financial affidavits.
The marital home—valued at $329,000—bore a mortgage of approximately
$180,000. The values of both marital vehicles were lower than the
associated auto loans such that each had negative equity. Beyond these
loans, Former Wife introduced evidence of additional liabilities that she
had incurred during the marriage in the amount of $123,196.62. The trial
court found that Former Husband only introduced competent substantial
evidence to support a total of $9,515.82 in marital debt attributable to
himself. 2
Based on the discrepancy between Former Wife’s marital liabilities
($123,196.62) and Former Husband’s marital liabilities ($9,515.82), the
trial court ordered Former Husband to make a balancing payment of
$56,840.40 to Former Wife.
Analysis
I. Due Process Claim
On appeal, Former Husband contends that his due process rights were
violated by the trial court’s strict adherence to a three-hour time limit for
the trial.
1 The couple leased the third vehicle with the lease expiration terminating shortly
after the trial. Former Husband was assigned the $5,051.50 excess milage
penalty for the vehicle.
2 Former Husband’s financial affidavits indicated that he had incurred total
marital liabilities of $20,926.22.
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“Whether the trial court has complied with the guarantees of due
process is subject to de novo review.” VMD Fin. Servs., Inc. v. Loan
Purchase Assocs., LLC,
68 So. 3d 997, 999 (Fla. 4th DCA 2011) (quoting
Dep’t of Revenue ex rel. Poynter v. Bunnell,
51 So. 3d 543, 546 (Fla. 1st
DCA 2010)). “Due process requires that each litigant be given a ‘full and
fair opportunity to be heard.’” Dobson v. U.S. Nat’l Bank Ass’n.,
217 So.
3d 1173, 1174 (Fla. 5th DCA 2017) (quoting Vollmer v. Key Dev. Props.,
Inc.,
966 So. 2d 1022, 1027 (Fla. 2d DCA 2007)).
“The opportunity to be heard must be ‘full and fair, not merely colorable
or illusive.’” Julia v. Julia,
146 So. 3d 516, 520 (Fla. 4th DCA 2014)
(quoting Pelle v. Diners Club,
287 So. 2d 737, 738 (Fla. 3d DCA 1974)). In
the instant case, neither party objected to the hurry-up nature of the trial.
Although the trial court did not provide either party with an opportunity
to make closing arguments, neither party requested to present closing
arguments at any point during the proceedings. Moreover, Former
Husband was not foreclosed from either offering direct testimony, calling
witnesses, or conducting cross-examination of Former Wife. Former
Husband failed to raise a single objection to the expeditious nature of the
trial and did not inform the trial court, formally or informally, that
additional time was required. Thus, this issue was not properly preserved
for appellate review and there is no error apparent on the face of the record.
See, e.g., Aills v. Boemi,
29 So. 3d 1105, 1108 (Fla. 2010) (holding that
“[p]roper preservation of error for appellate review generally requires three
components[,]” starting with “a timely, contemporaneous objection at the
time of the alleged error”). Nonetheless, we reiterate that trial courts need
to “manage their courtrooms so that the people’s business may be
conducted fairly [as well as] efficiently, and expeditiously.” Julia,
146 So.
3d at 522 (quoting Smith v. Smith,
964 So. 2d 217, 218 (Fla. 2d DCA 2007)).
II. Equitable Distribution
Former Husband next argues the trial court erred in several respects
in determining the parties’ equitable distribution.
“The standard of review for a trial court’s equitable distribution of
marital assets and liabilities is abuse of discretion.” Callwood v. Callwood,
221 So. 3d 1198, 1201 (Fla. 4th DCA 2017) (citing Pierre v. Pierre,
185 So.
3d 1264, 1265 (Fla. 4th DCA 2016)).
“The parties in a dissolution of marriage action have an obligation ‘to
present evidence of the existence and value of marital assets and the
existence and balances due of marital debts in order for the court to
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include them in the final judgment.’” Gaetani-Slade v. Slade,
852 So. 2d
343, 345 (Fla. 1st DCA 2003) (quoting Mobley v. Mobley,
724 So. 2d 697,
697 (Fla. 5th DCA 1999)). “A trial judge has no duty under section 61.075
to make findings of value if the parties have not presented any evidence
on that issue.” Aguirre v. Aguirre,
985 So. 2d 1203, 1207 (Fla. 4th DCA
2008) (citing Simmons v. Simmons,
979 So. 2d 1063, 1064 (Fla. 1st DCA
2008)).
Initially, with respect to the trial court’s rulings concerning the marital
home and the parties’ vehicles, we find no abuse of discretion and affirm
without discussion. Additionally, Former Husband argued that he began
contributing to one of his retirement accounts five years prior to the
parties’ marriage. However, because “no evidence was presented at trial
as to the value or extent” of the non-marital component, the trial court
properly deemed both retirement accounts to be marital assets and split
them 50-50.
We thus focus on the trial court’s calculations regarding the other
assets and liabilities. Former Husband’s financial affidavits listed multiple
liabilities from various credit card/charge accounts with the outstanding
balances. The financial affidavits were admitted into evidence and Former
Wife offered no argument contradicting the amounts listed. The excluded
liabilities included five credit card/charge accounts, which, had they been
included in the schedule of marital debts, would have reduced the total
amount of the equalizing payment from Former Husband to Former Wife.
Thus, remand is appropriate for the trial court to consider Former
Husband’s financial affidavit evidence regarding liabilities in recalculating
the equitable distribution of the parties’ assets.
III. Equalizing Payment
Finally, Former Husband argues the trial court failed to make an
express finding that he had the ability to make the originally ordered
equalizing payment of $56,840.40 without substantially endangering his
economic status. We agree.
In Abramovic v. Abramovic,
188 So. 3d 61 (Fla. 4th DCA 2016), we noted
“[a] lump sum equalizing payment to accomplish equitable distribution ‘is
properly awarded only when the evidence reflects a justification for such
an award and the ability of the paying spouse to make the payment without
substantially endangering his or her economic status.’”
Id. at 63–64
(emphasis in original) (quoting Fortune v. Fortune,
61 So. 3d 441, 446 (Fla.
2d DCA 2011)); see also Smith v. Smith,
226 So. 3d 948, 955 (Fla. 4th DCA
4
2017) (trial court erred in failing to consider a former husband’s ability to
pay an equalizing payment).
Here, Former Husband clearly has substantial liabilities in addition to
the responsibility to care for his son. Although Former Husband could
make the equalizing payment out of the proceeds from the sale of the
marital home, there is still an issue as to Former Husband’s financial
viability following the sale of the home and the distribution of the
equalizing payment that must be explicitly addressed on remand.
Conclusion
We therefore reverse and remand for an evidentiary hearing on the
amount of Former Husband’s liabilities that were excluded from the final
judgment but included in his financial affidavits. Following the hearing
and recalculation of the equitable distribution, the trial court must make
an express finding as to the extent in which an equalizing payment can be
made that does not substantially endanger the economic status of Former
Husband.
Affirmed in part, reversed and remanded in part.
CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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