Justin Maurice Jones, Former Husband v. Janie Nicole Jones, Former Wife , 239 So. 3d 211 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D16-3736
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JUSTIN MAURICE JONES, Former
Husband,
Appellant,
v.
JANIE NICOLE JONES, Former
Wife,
Appellee.
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On appeal from the Circuit Court for Santa Rosa County.
Marci L. Goodman, Judge.
March 8, 2018
PER CURIAM.
In this appeal of a final judgment of dissolution of marriage,
Appellant Justin Jones, Former Husband, asks this Court to
review four issues regarding timesharing, retroactive child
support, attorney’s fees, and equitable distribution. We affirm as
to the first three issues without comment, but reverse and remand
as to the fourth issue.
During the couple’s dissolution proceedings, Former Husband
admitted to taking $17,000 (with a $3,000 penalty totaling
$20,000) from a Thrift Savings Plan (TSP) account that he had
through his employer, the United States Air Force, while the
parties were still married but living separately. The amount
remaining in the account after his withdrawals was $7,519. He
claimed the withdrawn money was spent to avoid financial
hardship and that he used it to pay marital bills and debts as well
as living expenses during the dissolution proceeding. He explained
that withdrawing the money required Former Wife’s signature,
but that he executed a waiver to avoid getting her signature
because waivers are used in situations “where you cannot get an
actual signature from the spouse . . . such as restraining orders,
separations.” Former Wife claimed that she had no knowledge of
the withdrawals and that she received none of the money.
In the final judgment of dissolution, the trial court valued the
TSP at $24,531.52 (valued on the date closest to the first filing of
the dissolution petition) and found that “[t]he husband withdrew
money from the thrift savings plan and the wife is owed her share
in the amount of $10,315.76. The husband shall pay this debt in
the amount of $500 per month beginning December 1, 2016
directly to the wife.”
Former Husband argues on appeal, as he did below, that the
evidence established that he withdrew $20,000 from the TSP
account to pay marital expenses and that it was error for the trial
court to include an asset in the equitable distribution scheme that
was diminished or dissipated during the dissolution proceedings
unless misconduct on his part had been demonstrated. He argues
that there was no evidence presented as to misconduct on his part.
A trial court’s ruling on equitable distribution is reviewed for
an abuse of discretion. Winder v. Winder, 152 So. 3d 836, 838 (Fla.
1st DCA 2014). Section 61.075(3), Florida Statutes (2017), requires
that “any distribution of marital assets or marital liabilities shall
be supported by factual findings in the judgment or order based on
competent substantial evidence with reference to the factors
enumerated in subsection (1).” Those enumerated factors include
spousal contribution, economic circumstances, duration of the
marriage, and interruption of personal career or education by
either party, among many others. § 61.075(1), Fla. Stat.
Furthermore, section 61.075(3)(d) requires a trial court, in
establishing an equitable distribution scheme, to make “[a]ny
other findings necessary to advise the parties or the reviewing
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court of the trial court’s rationale for the distribution of marital
assets and allocation of liabilities.”
As a general proposition, it is error to include assets in an
equitable distribution scheme that have been diminished
or dissipated during the dissolution proceedings.
However, an exception to this general proposition exists
when misconduct during the dissolution proceedings
results in the dissipation of a marital asset. In that case,
the misconduct may serve as a basis for assigning the
dissipated asset to the spending spouse when calculating
equitable distribution.
Winder, 152 So. 3d at 838-39 (marks and citations omitted)
(reversing final order because “[t]he uncontradicted evidence
shows that the dissipated funds were used to pay marital expenses
while the dissolution was pending, including temporary support
for the Wife, and because there is no evidence that the Husband
engaged in misconduct in using these funds, the trial court abused
its discretion in including these dissipated funds in the equitable
distribution scheme”); see also Walker v. Walker, 85 So. 3d 553, 555
(Fla. 1st DCA 2012) (finding that “the record is devoid of any
evidence of misconduct by the Former Husband or his intentional
destruction of marital assets”); Annas v. Annas, 29 So. 3d 1209,
1210 (Fla. 1st DCA 2010) (“Because there is nothing in the
judgment to suggest that the former wife used the money she
withdrew from the parties’ bank account for other than reasonable
living expenses pending resolution of her petition for dissolution of
the marriage, the trial court erred when it assigned that money to
her as a part of the scheme of equitable distribution.”).
In this case, Former Husband liquidated the TSP account to
pay expenses to, according to his testimony, satisfy marital debt
and to continue paying bills for himself and his children during the
dissolution proceedings. Because the asset was dissipated, the trial
court was required to make a specific finding of misconduct to
equitably distribute it, which was not done. See id. (noting that “to
include a dissipated asset in the equitable distribution scheme,
there must be evidence of the spending spouse’s intentional
dissipation or destruction of the asset, and the trial court must
make a specific finding that the dissipation resulted from
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intentional misconduct”) (citation omitted). Because the record
before this Court contains no evidence upon which the trial court
could have concluded that Former Husband’s withdrawal of the
funds was misconduct, we reverse the trial court’s equitable
distribution order and remand the case to readdress the issue of
equitable distribution.
RAY, MAKAR, and WINSOR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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E. Jane Brehany, Pensacola, for Appellant.
No appearance for Appellee.
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