Shaver v. Shaver ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SARAH R. SHAVER, )
)
Appellant/Cross-Appellee, )
)
v. ) Case No. 2D14-5873
)
DAVID T. SHAVER, )
)
Appellee/Cross-Appellant. )
)
Opinion filed August 24, 2016.
Appeal from the Circuit Court for
Pasco County; Susan Gardner, Judge.
Jane H. Grossman, St. Petersburg, for
Appellant/Cross-Appellee.
Allison M. Perry of Florida Appeals &
Mediations, P.A., Tampa, for
Appellee/Cross-Appellant.
CRENSHAW, Judge.
The wife appeals a final judgment of dissolution raising numerous errors
involving alimony, equitable distribution, and various discrepancies between the written
judgment and oral pronouncement. The husband cross-appeals as to the valuation of
his business, challenging the trial court's decision to allow the wife's expert to testify
regarding that issue. We affirm the cross-appeal without further comment. Because
significant portions of the final judgment are not supported by competent, substantial
evidence or are otherwise inconsistent with the trial court's oral pronouncement, we are
compelled to reverse the judgment in part and remand for further proceedings.
I. Background
The parties were married in 1996 and have two minor children. During the
marriage, the husband ran a successful printer service and supply company while the
wife stayed home with the children. The husband initiated the dissolution proceedings
in August 2011. The case proceeded to a six-day final hearing in February and May of
2014. During the hearing, the wife's forensic accountant presented the only expert
testimony as to the valuation of assets and the financial situation of the parties; the
husband did not present any expert witnesses. At the close of the hearing, the trial
court announced: "this is where my ruling starts." It then proceeded to pronounce its
findings as to the contested issues including the valuation of the husband's business,
the wife's request for alimony, and the equitable distribution of the parties' assets, but it
reserved ruling on the issue of attorney fees.
Regarding alimony, the trial court found that the wife had a need and the
husband had the ability to pay alimony and determined that one year of rehabilitative
alimony followed by five years of durational alimony would be appropriate. But the trial
court declined to state a specific amount at that time. Instead, it asked the wife to
prepare updated scenarios showing what the wife's needs would be before and after the
sale of the marital home, presumably to ensure that the alimony award would comport
with the wife's actual need during that period. The trial court ultimately requested that
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the parties work together to prepare a proposed final judgment based on the
forthcoming updated scenarios.
Regarding equitable distribution, the trial court adopted the wife's
proposed equitable distribution schedule and found that the wife's valuation of the
marital assets was supported by competent, substantial evidence. But, like the alimony
scenario, the trial court noted that the wife's proposed schedule had to be revised in
light of the court's finding that the marital portion of the husband's business was much
lower than the valuation reflected in the wife's proposed schedule. The court left it to
the parties "to work together and submit a proposed equitable distribution scheme . . .
comporting with [the trial court's] ruling." Again, we presume that this meant the
schedule had to be revised to reflect a new equitable division of the assets as the wife
would not receive as large a portion of the husband's business as she anticipated.
As is often the case, the parties were unable to agree on a proposed final
judgment. The trial court held a case management conference to resolve the
disagreement. This was not an evidentiary hearing. Cf. Rodriguez v. Santana, 76 So.
3d 1035, 1037 (Fla. 4th DCA 2011) ("The trial court denied appellant's due process
rights by proceeding with the evidentiary hearing after notifying appellant only of a case
management conference."). During the case management conference, counsel for the
wife indicated that the hearing was necessary because the parties could not agree on
the amount of the alimony award and the equitable distribution of certain assets. For
the first time at this hearing, the husband argued that certain assets should not be
included in the equitable distribution scheme because the husband had sold them over
the course of the dissolution proceedings. The husband also argued that he did not
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have sufficient income to pay the amount of alimony reflected on the wife's updated
need scenarios. At the close of the case management hearing, the trial court asked
each party to prepare "competing judgments." The court ultimately entered the
husband's proposed judgment verbatim.
II. Alimony
The wife argues that the amount of the alimony award is not supported by
competent, substantial evidence. We agree. This court recently described the four
steps involved in the trial court's alimony decision-making process: the trial court must
determine "(1) a party's need for support; (2) the other party's ability to pay; (3) the type
of alimony or the types of alimony appropriate in the case; and (4) the amount of
alimony to award." Taylor v. Taylor, 177 So. 3d 1000, 1002 (Fla. 2d DCA 2015).
During the trial, the wife presented ample evidence showing her need for,
and the husband's ability to pay, alimony. Indeed, during the final hearing the trial court
found the wife's need "to be reasonable and supported by competent, substantial
evidence, almost ad-nauseam." And during the wife's expert testimony regarding the
husband's income, counsel for the husband lodged a relevancy objection, arguing that
"[t]here's never been a question of his ability to pay or anything else of the sort."
Although the trial court found "there is an ability to pay" as to the husband during the
final hearing, it announced: "I'm not going to say an exact amount." The court then
determined that the wife was entitled to "one year of rehabilitative alimony under her
plan of being in the work force" followed by "durational alimony for a period of five
years." Thus, the trial court completed the first three steps of its decision-making
process but failed to proceed to the fourth step at the time of the final hearing.
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The final judgment awards the wife $3900 per month as rehabilitative
alimony and $1000 per month as durational alimony. But there is no evidentiary support
for these figures in the record and these amounts are considerably lower than what any
of the wife's need scenarios showed.1 See, e.g., Doganiero v. Doganiero, 106 So. 3d
75, 78 (Fla. 2d DCA 2013) ("Here, assuming an annual income of $52,000 per year to
the husband, an award of $100 per month in alimony to the wife, where that amount
admittedly fails to meet the her [sic] needs, is woefully insufficient and beyond the
pale."); Pardue v. Pardue, 518 So. 2d 954, 955 (Fla. 1st DCA 1988) ("There is nothing
in the record disclosing how the trial court arrived at the amount of rehabilitative alimony
. . . .").
The wife further argues—and the husband concedes—that the written
judgment is inconsistent with the trial court's oral pronouncement because it awards the
wife one year of rehabilitative alimony followed by four years of durational alimony when
the trial court orally awarded one year of rehabilitative alimony followed by five years of
durational alimony. See Brewer v. Brewer, 3 So. 3d 432, 433 (Fla. 2d DCA 2009)
("Reversal is required where the final judgment is inconsistent with the trial court's oral
pronouncement."). We also agree with the wife that the written judgment is additionally
inconsistent because it fails to include a provision requiring the husband to pay for the
1
These numbers appear to come from suggestions made by the
husband's counsel during the case management conference that the husband should
receive "credit" for the roughly $9000 monthly temporary support payments he had
been paying to the wife during the dissolution proceedings. But at that point in the
proceedings the trial court had already twice denied the husband's motion for retroactive
relief from the temporary order wherein he sought relief from the same allegedly
overpaid temporary support. As the trial court explained at the final hearing, it denied
the husband's requests for retroactive relief because "[t]here clearly was a need and
there is an ability."
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wife's education expenses when the trial court orally ruled that the husband needed to
pay for the rest of the wife's education.
Because of these inconsistencies and the lack of competent, substantial
evidence, the alimony award must be reversed.2 On remand, the trial court may
reconsider not only the dollar amount of the award, but also the length of the award and
the impact of the wife's education expenses. See Doganiero, 106 So. 3d at 78
(explaining that "any type of alimony awarded must be of a legally sufficient amount");
Hann v. Hann, 629 So. 2d 918, 920 (Fla. 2d DCA 1993) (noting that a longer period of
rehabilitative alimony may be necessary to cushion the wife's reintroduction into the
work force); Edgar v. Edgar, 677 So. 2d 1359, 1361 (Fla. 1st DCA 1996) (holding that
the trial court abused its discretion in failing to award sufficient rehabilitative alimony to
allow the wife to complete her education within a reasonable time); Pardue, 518 So. 2d
at 955. The trial court may need to take additional testimony and evidence to establish
an alimony award based on competent, substantial evidence.
III. Equitable Distribution
A. Depleted Assets
Next, the wife challenges the portion of the written judgment that excludes
certain assets from the equitable distribution scheme on account of the assets having
been liquidated by the husband during the proceedings. The wife specifically takes
issue with the following assets: a 2007 Malibu V Ride Boat; a 2009 Crest III XRS
Pontoon Boat; a 2011 Infiniti QX56; and $4000 removed by the husband from his
2
We affirm without further comment the wife's other arguments relating to
the trial court's calculation of the husband's income.
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brokerage account. The written judgment excludes these assets from equitable
distribution on the basis that they no longer "remain available for distribution, having
been liquidated during the three (3) year pendency of this litigation and the proceeds
expended for living expenses and payment of attorney's and accountant fees."
The husband did testify that he sold the Infiniti automobile and used the
proceeds to pay for living expenses and attorney fees. However, there was no
competent, substantial evidence showing that the husband used the proceeds from the
sales of the other assets to pay for support or fees. And there is no indication that the
husband even requested that any assets be excluded from equitable distribution at any
time before the case management conference.
More importantly, the record reflects that the trial court never found that
proceeds from the sale of these assets were used in the way described in the written
judgment. In fact, during its oral ruling the trial court reprimanded the husband for
selling marital assets during the proceedings in violation of a standing order prohibiting
their sale. Cf. Plitcha v. Plitcha, 899 So. 2d 1283, 1286 (Fla. 2d DCA 2005) ("It was
error for the trial court to include these depleted marital assets in the equitable
distribution scheme because the Husband used this sum during the pendency of the
dissolution proceedings, and no misconduct was asserted."). Instead of the findings
contained in the written judgment, the record reflects that during its oral pronouncement
the trial court adopted the wife's proposed equitable distribution schedule—which
included the depleted assets—after finding the wife's values as to these assets on the
schedule were "reasonable and supported by competent, substantial evidence."
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B. The "Retained Cash" Asset
Additionally, the wife argues that there is no competent, substantial
evidence to support the provision in the final judgment omitting $142,717 identified as
"[r]etained cash" from equitable distribution on the basis that it was counted as income
for the husband in 2012. The husband responds that he used the retained cash to pay
for attorney fees and support and thus the trial court could properly exclude the asset
from equitable distribution. However, as with the excluded assets discussed above,
there is no competent, substantial evidence that the husband used the retained cash to
pay for attorney fees and support, and the record reflects that the trial court made no
such finding.
C. Valuation of the Husband's Business
The wife argues that the trial court erred in determining that $3,550,000 of
the value of the husband's business represented personal goodwill constituting
nonmarital property not subject to equitable distribution. Contrary to the wife's
assertions, the trial court's valuation of the personal goodwill of the husband's business
was supported by competent, substantial evidence and we affirm the trial court's
valuation of this asset. See Thompson v. Thompson, 576 So. 2d 267, 270 (Fla. 1991)
("[G]oodwill, to be a marital asset, must exist separate and apart from the reputation or
continued presence of the marital litigant.").
Because the trial court's distribution of assets and its findings that certain
assets should be excluded from equitable distribution altogether are not supported by
competent, substantial evidence we must reverse the entire award of equitable
distribution and remand for the trial court to reconsider the equitable distribution
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scheme.3 See Haddad v. Haddad, 686 So. 2d 788, 789 (Fla. 5th DCA 1997) ("The
award of equitable distribution is reversed and remanded to the lower court because of
inconsistencies on the face of the judgment and because certain of the findings are not
supported by the record.").
IV. Conclusion
The wife's remaining arguments regarding (1) the life insurance provision
in the written judgment, (2) the husband's alleged stipulation to pay the wife's COBRA
expenses, and (3) certain other findings included in the written judgment that were not
made by the trial court are meritless and do not warrant further discussion. Accordingly,
we reverse and remand for recalculation of the alimony award and the equitable
distribution scheme as detailed above; the judgment is affirmed in all other respects.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and KELLY, JJ., Concur.
3
The wife additionally argues that the trial court erred in ruling that the
husband will be entitled to a setoff against the equitable distribution figure based on the
attorney fees he paid over the course of the dissolution proceedings. And she argues
the judgment is inconsistent because it fails to include a provision requiring the
equalizing payment to be paid within sixty days after entry of the judgment, despite the
trial court's oral pronouncement that it would be so due. As to the setoff, we question
the propriety of such an arrangement considering the established principle that once the
equitable distribution scheme is finalized and an equalizer payment ordered, it becomes
a party's vested property. See § 61.075(2), Fla. Stat. (2015); see also Rowland v.
Rowland, 868 So. 2d 608, 612 (Fla. 2d DCA 2004); Harper v. Harper, 586 So. 2d 1147,
1148 (Fla. 2d DCA 1991). But because our reversal will require the trial court to revisit
the equitable distribution scheme in its entirety, we do not reach these arguments.
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