DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
BRIAN P. CHATTEN,
Appellant,
v.
VIRGINIA C. CHATTEN,
Appellee.
No. 4D21-694
[February 16, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 31-2019-DR-
000038.
Maureen Monaghan Matheson of Matheson Appellate Law, P.A.,
Satellite Beach, for appellant.
Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton,
for appellee.
ON MOTION FOR REHEARING
WARNER, J.
We withdraw our prior opinion and substitute the following in its place.
A husband appeals a final judgment of dissolution in which the court
awarded an unequal distribution of marital assets to the wife, as well as
alimony. He claims that the court abused its discretion in the award of
alimony in excess of the wife’s reasonable needs and in an unequal
distribution of the parties’ marital property. We affirm without further
discussing the alimony award. We reverse, however, the unequal
distribution of property, as the trial court justified the unequal division by
the wife’s contribution of her inheritance to the jointly held property. As
the wife’s evidence did not meet the burden of proof necessary to show
that the property was nonmarital, we reverse.
At the time the petition for dissolution of marriage was filed, the parties
jointly owned two homes—one in Vero Beach, Florida, and one in
Battlefield, Missouri. The wife testified that she paid $30,000 for the down
payment from an inheritance on the Florida home and an additional
$11,000 to furnish it. She requested that the court award her that house
as lump sum alimony. The Missouri home was purchased in 2018. The
wife testified that she used funds from her IRA towards the purchase of
that house. Both properties were mortgaged. At the time of the divorce,
the mortgage on the Missouri home was significantly greater than the one
on the Vero Beach house.
In the final judgment, the court awarded alimony and ordered a division
of assets. That division included granting the wife the Vero Beach property
and granting the husband the Missouri property. The division amounted
to an unequal distribution in favor of the wife. The wife received $216,606
of assets, while the husband received $95,373. The court ordered the wife
to pay the husband $40,000 upon the refinancing of the Vero Beach house
or a date certain, whichever first occurred. After payment of this amount,
the wife received $41,233 more than the husband, which the court
justified because of the wife’s contributions of her inheritance to the
purchase of the Florida property. The husband moved for rehearing,
noting the unequal distribution was not supported by the contributions
from the inheritance, as there was no testimony that the contribution was
anything other than a gift to him. The trial court denied the motion,
prompting this appeal.
On appeal, the husband contends that the court improperly awarded
an unequal distribution between the parties based solely upon the wife’s
contribution of her inheritance to the down payment. As the wife did not
carry her burden of proving that the contribution was anything other than
a gift, she was not entitled to an unequal distribution as a result of that
contribution. We agree.
Section 61.075(1), Florida Statutes (2019), provides for the equitable
distribution of marital assets and liabilities and states that “the court must
begin with the premise that the distribution should be equal, unless there
is a justification for an unequal distribution based on all relevant factors[.]”
The statute sets forth the factors to be included in the court’s
consideration. § 61.075(1)(a)-(j), Fla. Stat. (2019). “[T]he court is directed
to distribute the marital assets and liabilities ‘in such proportions as are
equitable’ after considering various enumerated factors as well as any
other factors ‘necessary to do equity and justice between the parties.’”
2
Robertson v. Robertson,
593 So. 2d 491, 493 (Fla. 1991) (citing § 61.075(1),
Fla. Stat. (1989)). With respect to real property, the section provides:
All real property held by the parties as tenants by the
entireties, whether acquired prior to or during the marriage,
shall be presumed to be a marital asset. If, in any case, a
party makes a claim to the contrary, the burden of proof shall
be on the party asserting the claim that the subject property,
or some portion thereof, is nonmarital.
§ 61.075(6)(a)2., Fla. Stat. (2019). The supreme court in Robertson held
that this language required “[t]he party claiming a special equity and
seeking to have the property declared a nonmarital asset . . . has [to bear]
the burden of overcoming this presumption by proving that a gift was not
intended.” Id. at 494.
In Cintron v. King,
961 So. 2d 1010 (Fla. 4th DCA 2007), this Court
considered whether the trial court erred in awarding a husband a special
equity for a down payment on the jointly-owned marital home, based on
evidence that the husband had made the down payment with nonmarital
assets.
Id. at 1013. We held that the trial court abused its discretion,
“because there [was] no record evidence that [the husband] overcame the
statutory presumption by demonstrating that a gift was not intended.”
Id.
Similarly, in Erdman v. Erdman,
301 So. 3d 316 (Fla. 5th DCA 2019),
the husband claimed that he had used money from nonmarital sources to
make the down payment on a jointly titled home. The court reversed an
award of unequal distribution to the husband based upon this
contribution, concluding that he failed to overcome the presumption of a
marital gift. The court explained:
“[S]tanding alone, evidence that one spouse provided
nonmarital funds to purchase a marital home is insufficient
to prove that the spouse did not intend a gift.” David v. David,
58 So. 3d 336, 338 (Fla. 5th DCA 2011) (citing Cintron v. King,
961 So. 2d 1010 (Fla. 4th DCA 2007)). If the subject property
is jointly titled, and the parties’ conduct during the marriage
demonstrates joint ownership, the party asserting that no gift
was intended must do more than make an “unsubstantiated
claim, raised for the first time during a dissolution
proceeding.” [citations omitted] Further, “[i]t is irrelevant how
the funds were received or how much each party contributed.”
3
Jurasek v. Jurasek,
67 So. 3d 1210, 1212 (Fla. 3d DCA 2011)
(citing David,
58 So. 3d at 336).
Id. at 319. The Erdman court determined that the husband’s “testimony
alone that the down payment was made with nonmarital funds was
insufficient to overcome the marital gift presumption.” Id. (citing David,
58 So. 3d at 338); see also Jurasek,
67 So. 3d at 1212 (reversing an
unequal distribution award in favor of the husband who had used funds
from an inheritance to purchase the marital home but “never explained
why or how the act of jointly titling the home purchased with those funds
constituted anything other than a gift from him to the [former] wife”).
Thus, based upon both the statute and the case law, the wife in this
case clearly did not overcome her burden to show that her inheritance
monies gave her a special equity in either the Florida or Missouri home to
support the unequal distribution of assets. While she testified that the
source of the down payment on the Florida home was from her nonmarital
inheritance, she did not offer any proof that the monies were anything
other than a gift.
Instead, the wife maintained in the trial court that the unequal
distribution would enable her to meet her reasonable needs. Thus, she
argues that we should affirm the unequal distribution by finding that it
was awarded as lump sum alimony, applying the tipsy coachman doctrine.
We decline to do so. “Lump sum alimony for support requires a showing
of need on the part of the recipient spouse, an ability to pay on the part of
the payor spouse, and a justification for the payment.” Sellers v. Sellers,
68 So. 3d 348, 351 (Fla. 1st DCA 2011) (citing Jackson v. Jackson,
507 So.
2d 1160, 1163 (Fla. 1st DCA 1987)). “The trial court must make findings
justifying such an award either on the record or in the final order.”
Rawson v. Rawson,
264 So. 3d 325, 330 (Fla. 1st DCA 2019) (citation
omitted).
The court awarded the wife a significantly unequal distribution of
assets without sufficient justification. While we affirm the award of
alimony to the wife, we reverse the equitable distribution and remand for
the court to reconsider the equitable distribution of property. In doing so,
the court may consider whether an award of property as lump sum
alimony may be appropriate and supported by the evidence. The court
may determine the issues on the record presented or in its discretion may
take additional evidence.
Affirmed in part, reversed in part, and remanded with directions.
4
GERBER and LEVINE, JJ., concur.
* * *
No motion for rehearing will be entertained.
Mandate shall issue immediately.
5
