Wilkinson v. Wilkinson ( 2016 )


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  •          IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FIFTH DISTRICT
    NOT FINAL UNTIL TIME EXPIRES TO
    FILE MOTION FOR REHEARING AND
    DISPOSITION THEREOF IF FILED
    STEPHEN C. WILKINSON,
    Appellant,
    v.                                                     Case No. 5D14-4285
    CLAUDETTE A. WILKINSON,
    Appellee.
    ________________________________/
    Opinion filed July 29, 2016
    Appeal from the Circuit Court
    for Seminole County,
    Jessica J. Recksiedler, Judge.
    Stephen C. Wilkinson, Casselberry, pro se.
    Christie L. Mitchell, of The CLM Law Firm,
    P.A., Orlando, for Appellee.
    PER CURIAM.
    Stephen Wilkinson (“Former Husband”), pro se, appeals the final judgment
    distributing marital assets upon dissolving his marriage of twenty years to Claudette
    Wilkinson (“Former Wife”). Former Husband argues that the final judgment is invalid
    because, in adopting verbatim Former Wife’s proposed final order, the trial court failed to
    exercise its independent judgment. He further argues that mathematical error along with
    significant inconsistencies between and within the trial transcript, the trial court’s oral
    findings, and its written order call the final judgment into question. Finding inconsistency
    and computational error in the oral and written rulings, we reverse.
    The parties were married in Jamaica in 1992. They have two children who are now
    both adults. Former Wife filed her petition for dissolution in 2012. During the marriage,
    they acquired two homes, several vehicles, and a 401(k) account, along with significant
    liabilities in the form of mortgages, loans, and credit card debt. The parties’ primary,
    marital home was also in foreclosure at the time of trial. The equitable distribution of the
    parties’ assets and liabilities was the primary issue at trial. Following testimony from both
    Former Wife and Former Husband, the trial court made extensive factual findings in an
    oral pronouncement, and directed Former Wife’s counsel to prepare the final judgment.
    Former Wife does not dispute that the trial court adopted her draft of the final
    judgment verbatim. This fact alone, however, does not necessarily constitute reversible
    error. Still, “such submissions cannot substitute for a thoughtful and independent analysis
    of the facts, issues, and law by the trial judge.” Perlow v. Berg-Perlow, 
    875 So. 2d 383
    ,
    390 (Fla. 2004). Because this procedure raises questions of fairness, we review such
    cases to ensure that the final judgment conforms to the trial court’s oral findings and is
    supported by competent, substantial evidence. See Chetram v. Singh, 
    984 So. 2d 614
    ,
    616-17 (Fla. 5th DCA 2008); Thomas v. Thomas, 
    781 So. 2d 540
    , 541 (Fla. 5th DCA
    2001).
    In this case, the record reveals several inconsistencies and errors that raise the
    question of whether the final written ruling properly reflects the trial court’s independent
    judgment. For example, the oral ruling found regarding the marital home that “[t]he only
    testimony as to the value of the property” was that it could be sold for $320,000, while the
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    final judgment stated Former Husband testified that the property was worth $235,000 and
    found the home’s value was $235,000. The oral ruling found that there was nothing to
    dispute Former Wife’s testimony that the couple’s Hyundai Elantra was worth $11,000,
    but the final judgment found it was worth $8,000. The court’s oral ruling valued Former
    Husband’s debt on two credit cards at $15,000 and $3,500, yet the written judgment
    valued them at $15,000 and $25,000. These are not the only discrepancies between the
    oral and written rulings that need to be resolved. Cf. Brewer v. Brewer, 
    3 So. 3d 432
    , 433
    (Fla. 2d DCA 2009) (citing Mahaffey v. Mahaffey, 
    614 So. 2d 649
    , 650-51 (Fla. 2d DCA
    1993); Gallardo v. Gallardo, 
    593 So. 2d 522
    , 524 (Fla. 3d DCA 1991)); Y.G. v. Dep't of
    Children & Families, 
    830 So. 2d 212
    , 213 (Fla. 5th DCA 2002) (citing D.F., Jr. v. State,
    
    650 So. 2d 1097
    (Fla. 2d DCA 1995); N.M. v. Dep’t of Children & Families, 
    785 So. 2d 530
    (Fla. 3d DCA 2001)).
    Further, the oral ruling and the written judgment both include mathematical error,
    which must be corrected. See Doyle v. Doyle, 
    789 So. 2d 499
    , 501 (Fla. 5th DCA 2001)
    (“[N]otwithstanding the trial court’s wide discretion in dissolution matters, [the appellate]
    court must correct mathematical errors . . . .” (citing Noone v. Noone, 
    727 So. 2d 972
    ,
    974 (Fla. 5th DCA 1998))). The trial court’s oral ruling found that Former Wife retained
    $7,500 more in assets and $1,980 less in liability than Former Husband. To determine an
    equalization payment, the trial court calculated half of $7,500 as $3,250, rather than
    $3,750, and added the entire $1,980, ordering Former Wife to pay Former Husband
    $5,230 in equalization, rather than $4,740. This errant amount was carried over into the
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    written final judgment despite the dramatic differences in valuation of the property
    between the oral and written findings. 1
    We also note several inconsistencies within the trial court’s oral findings. With
    regard to the couple’s second home, the trial court stated both that there was “at least a
    $60,000, based on all the testimony, liability upside down,” and that the court was not
    going to assign any liability to Former Husband because there was “not a clear liability
    one way or the other.” The trial court initially found that the Hyundai Elantra and
    associated debt were marital. Later, following an objection, the trial court reversed its
    finding that the debt was marital because the vehicle was purchased after Former Wife’s
    petition, and reduced Former Wife’s debt accordingly without similarly addressing the
    reduction in marital assets attributed to her. 2 The oral pronouncement also frequently
    referenced differing amounts for the value of the same item or category of property without
    explanation as to how or why the trial court modified the figures.
    For these reasons, we reverse the final judgment. On remand, the trial court should
    ensure that the final judgment is consistent with the evidence that was presented and
    reflects the trial court’s independent judgment.
    Finally, Former Wife untimely filed her cross-appeal more than ten days after
    service of notice of Former Husband’s appeal and more than thirty days after the final
    judgment was issued. See Fla. R. App. P. 9.110(g). Because she did not move for leave
    1 The written order states that the actual amount of the liability is $1,982 and the
    final payment is $5,232, but this discrepancy seems to be merely typographical error,
    since the record provides no support for liability totaling $1,982.
    2 Nevertheless, the written order found both the asset and liability were marital and
    attributed to Former Wife.
    4
    to permit the late filing, her cross-appeal is dismissed. See Greene v. Suhor, 
    783 So. 2d 290
    , 292 (Fla. 5th DCA 2001) (citing Sampson v. Sampson, 
    566 So. 2d 831
    (Fla. 5th DCA
    1990)).
    REVERSED and REMANDED.
    COHEN, WALLIS and LAMBERT, JJ., concur.
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