DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
RICHARD THOMAS MORGAN,
Appellant,
v.
MONICA SUE MORGAN,
Appellee.
No. 2D20-1622
September 17, 2021
Appeal from the Circuit Court for Pinellas County; Christopher M.
Labruzzo, Judge.
Paul S. Horning of Plotnick Law, P.A., St. Petersburg, for Appellant.
Mark F. Baseman of Felix, Felix & Baseman, LLC, Tampa, for
Appellee.
KELLY, Judge.
Richard Thomas Morgan (the former husband) appeals from
the final judgment dissolving his marriage to Monica Sue Morgan
(the former wife). He challenges the trial court's equitable
distribution award, its alimony award, and its award of retroactive
child support. We agree that the equitable distribution and alimony
awards must be reversed. Because those awards must be revisited,
we also reverse the award of retroactive child support for
reconsideration, taking into account any changes in the alimony or
equitable distribution awards.
Equitable Distribution
"Generally stated, equitable distribution of marital assets is a
three-step process: (1) identification of marital and nonmarital
assets, (2) valuation of marital assets, and (3) distribution of marital
assets as statutorily prescribed." Keurst v. Keurst,
202 So. 3d 123,
127 (Fla. 2d DCA 2016) (citing §§ 61.075(1), (3), Fla. Stat. (2013)).
The former husband argues, correctly, that the trial court erred
because it did not identify all the parties' assets and liabilities and
classify them as either marital or nonmarital. See id. (holding that
the failure to identify assets and liabilities as required by section
61.075(3) is reversible error).
The former husband also argues that the trial court erred in
failing to apply the proper classification date to the assets and
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liabilities it did identify. The final judgment bears this out, showing
that the trial court was focused on the date it believed the parties
effectively ended their marriage. Section 61.075(7), Florida Statutes
(2017), requires that the date for determining which assets and
liabilities can be classified as marital assets or liabilities is the
earliest of the date the parties entered into a valid separation
agreement or the date the petition for dissolution of marriage was
filed. Because there was no separation agreement in this case, the
parties' assets and liabilities had to be identified as of the date the
former wife filed her petition. See Tritschler v. Tritschler,
273 So. 3d
1161, 1165 (Fla. 2d DCA 2019).
After the assets and liabilities are identified, the trial court
must then place a value on each. The date used in determining the
value of the assets and the amount of the liabilities is left to the
discretion of the court. See § 61.075(7) ("The date for determining
value of assets and the amount of liabilities identified or classified
as marital is the date or dates as the judge determines is just and
equitable under the circumstances."). This discretion arises only
after the assets and liabilities are characterized as marital or
nonmarital. See Rao-Nagineni v. Rao, 895 So. 2d 1160, 1161 (Fla.
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4th DCA 2005). The trial court's error here is like the error
described in Rao-Nagineni in that throughout the final judgment the
court referenced the date the parties began living separately and
used that date to determine assets and liabilities and their values.
See
id. at 1160-61. On remand, once the trial court has identified
all the marital assets and liabilities in existence when the petition
for dissolution was filed, it may then proceed to value them as of
the date or dates the court deems equitable. See § 61.075(7)
("Different assets may be valued as of different dates, as, in the
judge's discretion, the circumstances require."). The trial court's
equitable distribution scheme must comply with all the
requirements of section 61.075 and be supported by proper findings
establishing that the date of valuation is equitable. See Tritschler,
273 So. 3d at 1164-65.
Alimony
During the marriage the parties lived comfortably in large
homes, travelled frequently, and never worried about being able to
pay their bills. After the parties separated, the former husband
lived in a small apartment, drove a truck with over 200,000 miles
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on it, and could barely make ends meet. The court found that "[t]he
evidence establishes that the parties lived an upper-middle class
lifestyle during the course of the marriage. The Husband's current
lifestyle is not commensurate with the marital lifestyle." The trial
court determined that the former wife's current monthly net income
was approximately $18,045 and compared it to the former
husband's monthly salary of $4,333.33. The court found that the
former wife had the ability to pay, and the former husband had the
need for alimony. Despite these findings, the trial court awarded
the former husband $1,000 per month in permanent periodic
alimony.
Given the standard of living established during the marriage
and the disparity between the parties' incomes, the trial court
abused its discretion in awarding the former husband a nominal
amount of alimony. See Juchnowicz v. Juchnowicz, 157 So. 3d 497,
500 (Fla. 2d DCA 2015) (holding that the trial court erred when it
determined the wife's need for permanent alimony based on her
postseparation lifestyle, rather than the standard of living enjoyed
during the marriage); Griffin v. Griffin,
906 So. 2d 386, 388 (Fla. 2d
DCA 2005) (noting that permanent alimony is intended to allow a
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spouse "to maintain the standard of living established by the parties
during the marriage and to ensure that . . . one spouse is not
'shortchanged' "); Donoff v. Donoff,
940 So. 2d 1221, 1225 (Fla. 4th
DCA 2006) (noting that the purpose of permanent periodic alimony
is "to avoid—where possible—having a recipient pass from the ease
and comfort of always having more than enough, to the distress of
having only just enough for the essentials of minimum food, shelter
and clothing"). The trial court's alimony award is not
commensurate with the parties' marital standard of living and
creates a gross disparity.
Retroactive Child Support
The former husband challenges the amount of retroactive
child support awarded to the former wife. He argues the trial court
abused its discretion in determining his support obligation from
the date of separation rather than from the date the former wife
filed her petition. He contends that his move to Florida was not a
termination of the marital partnership but was intended to benefit
the child by qualifying for in-state tuition.
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Section 61.30(17) provides that "[i]n an initial determination
of child support . . . the court has discretion to award child
support retroactive to the date when the parents did not reside
together in the same household with the child, not to exceed a
period of 24 months preceding the filing of the petition." Because
the former husband did not reside in the same household with the
parties' minor daughter for the two years before the petition was
filed, the trial court had the discretion to award retroactive child
support for the twenty-four months prior to the date of filing.
However, because the trial court's equitable distribution plan and
alimony award must be revisited, the court must also reconsider
the amount of retroactive child support in accordance with the
child support guidelines.
Conclusion
Accordingly, we affirm the dissolution of the parties' marriage
but reverse and remand so that the trial court can clearly identify
assets and liabilities that were in existence on the date of the filing
of the petition and then determine the value of each on the date the
court deems appropriate. The trial court must also reconsider the
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alimony award to the former husband and the amount of retroactive
child support based on any amendments to the alimony award and
the equitable distribution scheme.
Affirmed in part, reversed in part, and remanded for
proceedings consistent with this opinion.
BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.
Opinion subject to revision prior to official publication.
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