Mary Grace Vinson v. Tommy Junior Vinson ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-40
_____________________________
MARY GRACE VINSON,
Appellant/Cross-Appellee,
v.
TOMMY JUNIOR VINSON,
Appellee/Cross-Appellant.
_____________________________
On appeal from the Circuit Court for Okaloosa County.
Michael A. Flowers, Judge.
November 7, 2018
JAY, J.
Before us is the former wife’s appeal and the former husband’s
cross-appeal from the Amended Final Judgment of Dissolution of
Marriage, and the orders properly subsumed therein. See Fla. R.
App. P. 9.110(h). After giving due consideration to all of the
arguments raised by each party, we affirm the points raised on
appeal, but reverse in part the points raised on cross-appeal. As a
result—and for the reasons discussed below—we remand the cause
for further proceedings.
I. FACTS
There are few dissolution cases that reach this Court having
taken the straight and narrow path. Likewise, in the present case,
the parties met pitfalls and took detours of their own devise prior
to reaching the final hearing. We take note of the trial court’s
commendable efforts to shepherd them toward that end. But, in
order to fairly and accurately recount the hazards they
encountered along the way requires that we include the following,
relatively lengthy, recitation of the facts.
A.
The parties were married on February 14, 2007. Their
daughter was born in 2012. The parties separated in December
2014 and six months later, on June 1, 2015, the former wife filed
her Petition for Dissolution of Marriage. On January 15, 2016,
following a hearing, the trial court entered a Stipulated Temporary
Order adopting the parties’ stipulated temporary time-sharing
agreement concerning their minor child. The stipulated order
established an equal time-sharing arrangement between the
parties and obligated the former husband to pay temporary child
support.
A final hearing was scheduled on the former wife’s petition on
October 5, 2016. In the meantime, on September 26, the former
wife and her attorney—Wanda Morgan—arrived at the law offices
of the former husband’s attorney with the intent of taking the
former husband’s deposition. Instead, the parties entered into a
new time-sharing agreement that departed markedly from the
equal time-sharing plan approved by the trial court in the
Stipulated Temporary Order.
Specifically, Ms. Morgan announced that they had “worked
out the time sharing in this case, that the husband [would] have
majority time sharing with the parties’ minor child,” and the
former wife “[would] get all of the summer []—which will begin one
week after school lets out and it will end when—one week before
school reconvenes.” In addition, the parties would “alternate the
entire Thanksgiving holiday . . . [and] [would] split the Christmas
Holiday according to [the] Okaloosa Shared Parenting Plan.”
Furthermore, the former wife would get “every three or four day
weekend,” which they anticipated would amount to one weekend
per month, “whether it be due to a teacher work day or holiday like
Labor Day, Memorial Day, [P]resident’s Day . . . .” Lastly, the
former wife would pay “$200 a month to the husband as child
support.” Ms. Morgan represented that they would “reserve” on the
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remainder of the assets, including the marital home, until the
upcoming October hearing.
Next, the court reporter—who had been retained to report the
former husband’s deposition—placed the former wife under oath.
Ms. Morgan asked the former wife if she understood the time-
sharing arrangement as it was outlined by Ms. Morgan. The
former wife replied, “Yes,” and then added, “Yeah, I just want to
know about the social security that he can get[.]” After informing
the former wife that they would eventually get to that issue, Ms.
Morgan asked her if she was in agreement with the timesharing
plan as Ms. Morgan had summarized it. The former wife said she
was in agreement and then asked about the “other holidays.” Ms.
Morgan explained that she would get her daughter one long
weekend per month. The former wife expressed her satisfaction
with that answer and then testified that no one had promised or
threatened her to enter into the agreement—she was entering into
it freely and voluntarily because she believed it was in the best
interest of her daughter.
The former husband was then questioned by his attorney—
Travis Johnson. The former husband confirmed that he had
discussed the terms of the agreement with Mr. Johnson, who had
answered all of his questions. He agreed that the time-sharing
plan was in his daughter’s best interest; that he had not been
forced into the agreement or promised anything for his agreement;
and that he had entered into it freely and voluntarily. Both parties
confirmed they understood that the issues of the equitable
distribution of assets and liabilities and other financial issues
would be decided at a later date.
Nevertheless, three business days before the scheduled
dissolution hearing, the former wife waivered and filed a pro se
Motion to Set Aside Custody Agreement, in which she alleged that
she had been fearful and anxious and had felt pressured and
coerced when she entered into the newly-stipulated time-sharing
plan. On the heels of the motion, and based upon a Stipulated
Motion to Withdraw, the trial court entered an order relieving
Wanda Morgan of responsibility as the former wife’s attorney of
record.
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On October 13, 2016, following a hearing, the trial court
granted the former wife’s Motion to Continue, in order that she
could retain new counsel. The court also awarded the former
husband fees and costs for the preparation necessary for the
previously scheduled final hearing. In the meantime, the former
wife—still acting pro se—filed Petitioner’s Motion for Contempt,
asking the trial court to find the former husband in contempt for
failing to follow the January 7, 2016 Stipulated Temporary Order,
as opposed to the terms of the September stipulated agreement.
B.
On January 20, 2017, a hearing was held before the court on
the former wife’s two motions. The former husband was not
present, but was represented by Mr. Johnson. By this time, the
former wife had retained new counsel. The trial court heard
testimony from the former wife and Wanda Morgan.
According to the former wife—prior to the day that they met
at the Mr. Johnson’s law offices—Ms. Morgan had been telling the
former wife that her “custody” case was weak because she worked
and the former husband did not. She also referenced an email from
Ms. Morgan sent on September 21, 2016, in which—in the former
wife’s words—Ms. Morgan told her that she might “lose [the case]
. . . because [she] withheld very important information until just a
couple of weeks before trial[.]”
Prior to admitting the email into evidence, the trial court
informed the former wife that, by doing so, she was waiving her
attorney-client privilege. The former wife said she understood. She
then testified as to her version of the sequence of events that
occurred on September 26, 2016, when she first arrived at the law
offices for the deposition of her former husband.
As she described it, Ms. Morgan talked to her “quickly”
outside, again advising her that her case was “weak” and that the
judge “probably” would not give her custody because she worked.
She then said, “So we opened the conversation” about a plan that
would give the former husband majority time-sharing during the
school year, but claimed that they “rushed into it.” The former wife
related that Ms. Morgan then spoke to Mr. Johnson and,
afterwards, relayed back to her that he was willing to reduce her
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child support obligation to $200 per month during the months the
former husband maintained majority time-sharing. The former
wife said that she told the attorneys she could not afford even that
amount, but Ms. Morgan allegedly responded that it was “the best
deal” she could get “because the Judge may give some more.”
At that point, the former wife’s new attorney—Tanya
Holman—addressed the former wife’s September 26 testimony
where the former wife assented to the agreement. Specifically, the
former wife argued that despite Ms. Morgan’s representation that
they had discussed the details of the time-sharing agreement, the
former wife still harbored questions, but was too afraid to ask
them; it was not what she wanted, but “everything happened so
fast,” she “wasn’t ready,” and she “wasn’t given enough time to
think about it.”
The transcript of that meeting was moved into evidence. Ms
Holman went over each question asked by Ms. Morgan and
answered by the former wife. She then asked the former wife how
she felt when she answered those questions. The former wife
testified that she felt “scared” and “confused,” and did not know
what was going on. In light of the email she received from Ms.
Morgan, the former wife claimed she felt she was already losing
her case.
The email conversation between the former wife and Ms.
Morgan was entered into evidence. Read as a whole and in context,
it revealed that on September 21, 2016, just days before the
scheduled final hearing, the former wife advised Ms. Morgan of a
new witness she had just thought of and asked Morgan if she
would subpoena the witness. In response, Ms. Morgan informed
the former wife that she had “severely hurt [her] case by not
telling” her this “important information sooner.” Ms. Morgan made
clear that the former wife had been withholding information and
refusing to allow Morgan to request continuances. Ms. Morgan told
her, “Your not allowing me to attempt to continue your case could
cost you custody,” and she explained that by the former wife’s
having withheld important information from her “until just a
couple of weeks before trial” left her “no time to get witnesses and
much needed information.”
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On cross-examination by Mr. Johnson, the former wife
confirmed that it had been Ms. Morgan—and not the former
husband—who had “forced” her into the agreement. She also
admitted that after her deposition was taken on August 1, 2016,
she and Ms. Morgan “consulted several times” on “the various
strengths and weaknesses of the case.” She then testified that
things were “going so fast” during the negotiations on September
26, she could not “remember what was going on.” Despite
acknowledging that Ms. Morgan was negotiating terms that would
have been beneficial to her, the former wife insisted she did not
“want to do it.”
When confronted with her sworn testimony that she had not
been threatened into entering into the agreement, and when asked
if she essentially had changed her mind upon arriving home, the
former wife replied, “No,” insisting she had never wanted the new
time-sharing plan in the first place. She agreed with Mr. Johnson
that divorce proceedings could be stressful and emotionally
draining on anyone, but when asked if there had been anything
beyond that “normal emotional strain of divorce that forced [her]
to enter into this agreement,” the former wife replied, “It was fast.
I don’t know.”
Before Wanda Morgan testified, the trial court reiterated its
earlier ruling that the former wife had affirmatively waived all
privileged communications between her and Ms. Morgan.
Ms. Morgan testified that subsequent to the former wife’s
August 1 deposition, the two had conversed about what the
deposition had revealed and how it might affect her case. During
the deposition, it came to light that the former wife’s work schedule
as a nurse caused her to be “very reliant” on her mother to provide
the necessary care for the parties’ minor child. Ms. Morgan went
on to relate that the week prior to the former husband’s scheduled
deposition, she received from the former wife some “pretty
accusatory and inflammatory” emails. Accordingly, when they
both arrived for the former husband’s deposition, Ms. Morgan
asked the former wife to step outside to talk about the emails.
Ms. Morgan maintained that the email admitted into evidence
was not representative of all the other emails that had passed
between the two women. Rather, Ms. Morgan revealed that, in the
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other emails, she had discussed with the former wife all “the good,
the bad, and the ugly” of the case, as she normally does with all
her clients. One of those “ugly” facts was that the domestic violence
charge the former wife had lodged against the former husband had
been nol prossed. She also informed the former wife of all of the
factors the trial court would weigh in determining “primary
custody.”
Returning to the conversation outside the law offices, Ms.
Morgan testified that the former wife apologized about the earlier
emails. She then told Ms. Morgan that she had been talking to her
sister, who had previously given up custody of her child to her
husband. Her sister told her that it was working out well and it
would be in the best interests of the former wife’s daughter if she
spent the majority of her time with the former husband during the
school year.
It was at that point—according to Morgan—that they began
talking about a similar option for the former wife, and Ms. Morgan
asked the former wife if she would want most of the summer with
her daughter. The former wife said she would, and she also agreed
to alternating visitation for Christmas and Thanksgiving. The
former wife told Ms. Morgan that she was planning to return to
school to become a nurse practitioner and was contemplating
taking a job as a traveling nurse. For that reason, she agreed it
would be in her child’s best interest to be with the former husband
for the school year. Ms. Morgan asked her if she wanted her to
relay her preferences to Mr. Johnson, and the former wife said,
“‘Yes, that would be in her best interest.’” According to Ms.
Morgan’s recollection, it was the former wife who had approached
her about giving the former husband majority time-sharing.
During the negotiations, however, the sticking point with the
former wife was her support obligation. Ms. Morgan testified she
explained to the former wife that she could not waive support, and
if they went before the trial court, it would impose a guidelines
support amount. She then explained to the former wife that the
former husband was agreeing to a “downward deviation” from the
guidelines based on her agreeing to pay his transportation costs
for visitation (the former husband was then living in Alabama).
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The guidelines monthly amount was close to $400, whereas the
former husband was proposing the former wife pay only $200.
Ms. Morgan denied that the former wife at any time expressed
confusion about the terms of the agreement. She asserted that she
“made sure [the former wife] understood everything.” Moreover,
she agreed that it was not a complete settlement, as there were
additional issues that would have to go before the court. Ms.
Morgan went on to state:
I have been doing this for fifteen years. I don’t force
anybody into anything. If she wanted her day in court,
she could have gotten it. But she was the one who
presented it to me. I presented it to you [Mr. Johnson].
We ironed out the details about the child’s issues and put
it on the record.
And three or four hours later, she e-mailed me, and
it wasn’t about that she didn’t want to agree to the
custody anymore. She said, she couldn’t afford to pay the
$200 a month child support, that she was bringing in
another family member from, I think, the Philippines. . .
. [S]he had too many people to support already. She can’t
afford to pay $200, and I need you to set this aside.
I said, “I’m sorry, ma’am. I can’t in good faith file a
motion to set aside because I don’t feel I have the proper
grounds for it. And over the course of the next couple of
days, we went back and forth with e-mails. And I finally
said, I have to withdraw as your attorney because I
cannot ethically do what you’re asking me to do.
On cross-examination, Ms. Morgan reiterated her testimony
about the conversation outside in the parking lot, when the former
wife announced she wanted to make the time-sharing offer to the
former husband. Then she added:
And I was just like, really? I’m like, why? What are your
reasons? We discussed the reasons. It’s the 12-hour shifts
at the hospital night and day. It’s the traveling nurse job
that she was anticipating getting. It’s going to school to
be a registered nurse practitioner, that she wasn’t going
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to have time, and it wasn’t fair to the child in that it
would be best for her to be with her dad for the school
year so that she could continue to go and make more
money so that she could then – she has her mother over
here. She’s supporting her mom. So she could continue on
to make more money to bring another family member. I
think it was her dad, to come over.
Ms. Morgan repeated that it had been the former wife who brought
up the subject; she wanted her to present it, and “kept saying over
and over that it was in her daughter’s best interest that she go live
with dad for the school year,” even though their plan all along had
been to take it to trial. Ms. Morgan denied that she said their case
was “weak,” but just presented to the former wife what the court
might do under the circumstances.
After hearing argument from counsel, the trial court recapped
the evidence it had heard and then found:
From the Court’s perspective, the case was ongoing.
It was litigious and contested. For a period of time,
depositions had been taken. Conversations between [the
former wife] and counsel, Ms. Morgan, had taken place.
And [the former wife’s] testimony is that on the date
that [the former husband’s] testimony was going to be
taken at deposition, that she met with counsel. [The
former husband] was to appear by telephone for his
deposition.
However, the deposition did not take place because
negotiations ensued. The evidence presented in the form
of [the former wife’s] testimony is that under oath that
day she answered many questions, and she was
untruthful. That’s her testimony today that she lied. So
the reason, therefore, is the emotional tole [sic] that had
been taken upon her rendered her unable to truthfully
testify as to whether or not she agreed and understood.
But the record is clear that she did agree and
understand the terms of the agreement. In fact, Exhibit
1, the transcript, indicates the answers to those questions
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indicate that she did understand what she was doing,
that she not been [sic] forced or coerced.
And the evidence today is all understood that in the
event an agreement was not reached, that a final hearing
was going to be conducted within weeks of that deposition
and the date which the agreement that is sought to be set
aside here was reached.
With respect to setting aside this agreement,
because consistent with case law, the Court is looking for
the best interest of the child. And to the extent that I think
. . . the Court [sic] is devoid of any evidence that would
suggest the best interest of the child will not be served by
the agreement that was reached by the parties.
There is no evidence presented and none suggested
that [the former husband], nor his counsel, coerced or
manipulated or did anything untoward which resulted in
[the former wife’s] decision to enter into the agreement.
That if there was duress, [the former wife’s] testimony
was that her counsel would have been the source of that
duress.
Based on the best evidence before the Court, [the
former husband] in no way, nor did his attorney, in any
way, provide any coercion or any coercive activity. There’s
no legal evidence of that.
The motion to set aside the clearly-agreed upon custody
arrangement is respectfully denied. Therefore, the
motion or suggestion that by following the terms of the
agreed-upon disposition that Mr. Vinson has acted in
contempt of this Court cannot be well founded.
(Emphasis added.)
A written Order on Petitioner’s Motion to Set Aside
Agreement and Motion for Contempt was subsequently entered on
January 27, 2017. Consistent with the trial court’s oral findings,
the order stated that the former wife was not coerced into entering
into the stipulation and no evidence was presented to suggest the
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new time-sharing plan was not in the child’s best interests. The
day before, Ms. Holman, the former wife’s attorney, was granted
leave to withdraw as attorney of record based on an “impasse
reached in the handling of the case.”
On February 13, 2017, the “Parenting Plan of Mary Grace
Vinson and Tommy Vinson for Final Judgment” was approved by
the trial court. The plan memorialized in writing the parties’
September 2016 stipulated agreement and granted majority time-
sharing of the parties’ daughter to the former husband during her
school year. It was later incorporated into the Amended Final
Judgment of Dissolution of Marriage.
C.
The final hearing on the former wife’s Petition for Dissolution
of Marriage was held on October 30, 2017. The former wife
appeared with new counsel, Michael Webster. The former husband
continued to be represented by Travis Johnson. It was established
early on in the former wife’s testimony that there was no claim for
alimony or spousal support, since she acknowledged that she had
a higher income than the former husband at the time of the divorce
proceedings. The evidence demonstrated that during the period of
separation, the former wife did not contribute any portion of her
wages or earnings to the former husband. She maintained
separate accounts and accumulated separate assets during that
time, but no funds were co-mingled.
Relative to the issues raised on cross-appeal, the evidence
established that during the course of the marriage, the former
husband had been employed by the U.S. Army Corps of Engineers.
After he was fired from his position, he filed an administrative
action alleging unlawful discrimination. The former husband
prevailed before an administrative law judge and was awarded
damages. The damages were divided into three discreet awards.
The first sum awarded was in the amount of $70,000. In a
letter addressed to the Director of the Department of the Army
dated June 20, 2017, the former husband’s attorney who had
handled the lawsuit—Adam J. Conti—referenced an enclosed copy
of the “Final Agency Action,” which ordered payment to the former
husband of “nonpecuniary compensatory damages in the amount
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of $70,000.” The compliance order from the office for Equal
Employment Opportunity (“EEO”) referenced a payment of
$70,000, but did not specifically designate the award as one for
“nonpecuniary compensatory damages.” Later, in a letter from the
Department of the Army dated July 14, 2017, in response to Mr.
Conti’s letter, it was again noted that a check in the amount of
$70,000, dated December 23, 2016, was issued to the former
husband.
At the final hearing, one of the issues for the trial court to
resolve was how to characterize the $70,000 for purposes of
equitable distribution. During the former wife’s direct
examination, Mr. Webster referred to the damages as
“nonpecuniary” when he was reading from Mr. Conti’s letter. On
cross-examination of the former wife by Mr. Johnson, the following
questions and answers transpired:
Q. [by Mr. Johnson] Now let’s talk about the time
periods and frames as what we have at issue here. First
of all, isn’t it true, ma’am, that nonpecuniary means non-
money?
A. I don’t know.
Q. Okay. If I told you that nonpecuniary meant that
it was not related to a money quantifiable amount, what
would that mean to you?
A. I don’t understand.
Q. If nonpecuniary meant it is not calculable by
money, what does that mean to you?
A. It is an asset.
Q. And that asset – was the nonpecuniary
compensatory damages paid to Mr. Vinson as a result of
essentially an unlawful firing claim, right, an
employment discrimination claim?
A. I don’t know what it is all for.
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The trial court put an end to this fruitless interrogation by tersely
interjecting: “Mr. Johnson, I know what it means.”
In his direct examination, the former husband explained that
he had filed a discrimination claim and had gone to trial,
eschewing a settlement offer, and was awarded “damages.” Over
Mr. Webster’s objection, the former husband was permitted to
testify that the $70,000 award was “nonpecuniary” “for stress, for
health issues, and for putting [him] in a bind financially.” He said,
“The . . . federal judge awarded me that money for me for what I
had been put through by my Army Corp [sic] of Engineers boss.”
The second element of damages awarded in the federal
administrative lawsuit was back pay in the gross amount of
$112,618.72. However, according to the former husband, his actual
payout was the “net amount” of $71,082.85, as acknowledged by
the Department of the Army’s July 14, 2017 letter to Mr. Conti.
During her testimony, the former wife and her attorney set
about to determine whether the net amount was legitimate.
Through his questioning of the former wife, Mr. Webster,
established that if the former husband, in fact, had netted only
$71,082.85, then around $40,000 was withheld from the $112,618
gross award for “some reason” that could not be explained in terms
of typical federal withholding. The former wife testified that she
and Mr. Webster ran the amount through a computer software
program known as “FinPlan” to calculate “federal income taxes,
Social Security, and Medicare to determine the correct amount of
withholding.” Utilizing the FinPlan calculations, and taking into
account head-of-household and child exemptions, the former wife
claimed that the correct amount of back pay the former husband
should have received was $83,844, not $71,082.85. The former
husband objected to the calculation on the basis it was hearsay and
speculative, but his objection was overruled.
For his part, the former husband insisted that he received a
check for only $71,082 from the $112,618 awarded. He claimed he
had no control over what amounts were withheld. Furthermore, in
calculating the marital portion of the $71,082, he excluded the
months of June 2015 through October 2015. According to the
former husband, those months were post-filing and, therefore, the
portion of the award amortized over those months would be non-
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marital. He likewise excluded the months from January 2015 to
June 2015, when the parties were separated. His figure for the
marital portion of back pay was $35,541. The former husband
explained his request for an unequal distribution of those portions
of the back pay that accrued after the parties had separated on the
following grounds: “We were living separately, we had our own
separate incomes, we were not paying each other’s bills, [and] we
had no association whatsoever.”
The third component of the administrative damages award
was the former husband’s front pay from November 2016 through
April 1, 2017. The former wife agreed that it was a non-marital
asset.
Also during the marriage, the former husband had a “BB&T
account.” The former wife agreed that the account was solely in her
husband’s name. It was established that on April 12, 2010,
$32,962.97 was deposited into the account. A second deposit of
$31,728.37 was deposited on May 7, 2015. The former husband
testified at length about the circumstances under which he
attained the money in the account. He explained that the
investment account was opened prior to his mother’s death, and
that he and his brother had invested money for her in the account.
He further testified that the funds were used strictly for his
mother’s benefit until they passed to him and his brother upon her
death. He testified that the funds had been gifted to him by his
mother and were never co-mingled with marital funds.
Furthermore, no contributions had been made to the account
during the marriage. In her pre-trial deposition, the former wife
acknowledged that she considered the account to be non-marital
property.
Next, the former husband testified that he had made 100
percent of the mortgage payments on the marital home following
the parties’ separation and prior to entry of the final judgment.
The pay down on the principal of the mortgage was due solely to
his payments. He claimed that the amount of equity created during
that period totaled $4,903.32 in his favor.
While exercising equal timesharing of their daughter prior to
the September 2016 agreement, the parties had agreed to rotate
the child dependency tax exemption. Nevertheless, the former wife
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claimed the exemption two years in a row. In 2016, the child
resided primarily with the former husband, but the former wife
claimed her as an exemption in both 2015 and 2016. Consequently,
the former husband testified to losing $1615.
In her direct examination, the former wife testified she “was
suggesting that each [party] maintain $100,000 worth of life
insurance on [their] respective lives naming the other party as
beneficiary.” The former husband made a similar plea in his
counter-petition for dissolution of marriage. The only other
evidence relevant to the insurance issue established that the
former husband was sixty-four years old.
D.
In its Final Judgment of Dissolution of Marriage, the trial
court ordered the parties to share parental responsibility for their
daughter “per the terms of the Parenting Plan of Mary Grace
Vinson and Tommy Vinson for Final Judgment previously entered
in this action on February 13, 2017.” It required that both parties
maintain life insurance policies of at least $100,000, naming the
other party as the sole beneficiary “in trust for the parties’ minor
child.” The trial court adopted the former wife’s date of filing her
petition as the cut-off date for designating the parties’ assets and
liabilities as marital or non-marital for purposes of equitable
distribution, according to section 61.075(7), Florida Statutes.
The marital assets were identified in a table entitled “Marital
Assets,” which contained two columns describing the assets and
their values, and, next, a column each for the former husband and
the former wife in which the trial court indicated the marital asset
(or liability). In the column regarding the former husband’s receipt
of back pay, the trial court arrived at the net amount as follows:
“$112,618.72 gross. Net $71,082.85. Received by H on May 24,
2017. 74.1% MARITAL. Covers time frame of 3/22/14-10/31/15
[sic]. Deductions way too high.” Accordingly, the parties each
received in their respective columns a net value of the back pay in
the amount of $83,844, as calculated by the former wife. The full
$70,000 of the alleged “nonpecuniary compensatory damages” was
placed in the former husband’s column, indicating that the trial
court found it to be a marital asset.
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Following the table, the trial court set forth line-item
explanations. Regarding the back pay calculation, the trial court
explained its findings as follows:
As to the “Back Pay” component, Wife’s Exhibit 18,
properly calculates that the parties were married to each
other (up until the date of filing) for 435 days and with
this claim component spanning a period of 587 days. The
Wife properly calculated that 74.1% of this component is
“marital.” That percentage equates to $83,844 of the
gross distribution.
When the “Back Pay” settlement was paid to
Husband, $41,536 was deducted. The Husband provided
to the court no itemization of what those deductions were
for. In Wife’s Exhibit 20, the FinPlan calculations state
that after deducting Federal Income Taxes, Social
Security, and Medicare contributions, the Husband’s true
“net” pay is slightly more than 80% of the gross
distribution. So, the court accepts as accurate the Wife’s
use of $16,768 deduction which is 20% of the gross
marital portion of this claim.
Regarding the $70,000, earmarked as “nonpecuniary
compensatory damages” by the former husband, the trial court
commented:
This is the “nonpecuniary compensatory damages” of
$70,000 pertaining to the Army Corps of Engineers
claims. Both parties have cited the Weisfeld[ ∗] case which
states that “non economic compensatory damages for
pain and suffering” are to be classified as the injured
party’s non-marital asset. There is no evidence as to this
portion of the claim being even labeled for any genuine
“pain and suffering.” In the absence of any document
whatsoever which states these damages are for “pain and
suffering” then the court finds this asset accrued during
the marriage is properly classified as a marital asset.
∗
Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989).
16
The trial court next turned to the former husband’s BB&T
account. It found that the former husband “met his burden of
showing the nature of the monetary asset being non-marital.”
Therefore, that asset, valued at $64,691, was not included in the
equitable distribution table under marital assets.
Lastly, in an effort to assure that all marital assets and
liabilities were equally divided between the parties, the trial court
ordered the former husband to pay to the former wife an
“equalization payment” of $80,596. The trial court specifically
noted that the former husband “testified that he has uncashed
checks in his safe totaling that amount or more.” Nevertheless, the
trial court ordered that the equalization payment be reduced by
$2400, the amount the court found equaled the amount of child
support the former wife should have paid to the former husband
for the 12 months preceding the final hearing, in accordance with
the September 2016 stipulation.
Additionally, the trial court found that the former husband
“has the uncontroverted better ability to pay the Wife’s attorney’s
fees and court costs . . . .” However, it went on to state that the
former wife owed the former husband “unspecified attorney’s fees
and costs associated with the Wife’s first sought and obtained
continuance herein.” On the other hand, it further noted that the
former wife “later had to incur attorney’s fees and costs associated
with successful [sic] Motion to Compel.” To resolve the competing
claims, the trial court awarded to the former wife 50% of her fees
and costs incurred in the dissolution proceeding and retained
jurisdiction to ascertain the amount of said fees and costs.
As made abundantly clear by the instant appeal and cross-
appeal, both parties claim error from the trial court’s decisions in
this litigation and in its findings of fact and conclusions of law
contained in the final judgment. In the following sections, we will
address their points of alleged error in turn.
II. FORMER WIFE’S APPEAL
A. The stipulated time-sharing agreement and the trial
court’s parenting plan.
17
In her first and second points on appeal—combined for
purposes of her Initial Brief—the former wife contends that the
trial court erred in failing to set forth in its “Parenting Plan of
Mary Grace Vinson and Tommy Vinson for Final Judgment,” the
specific factual findings concerning the best interests of the child
as enumerated in section 61.13(3), Florida Statutes. Specifically,
the factors the former wife claims should have been considered are
those set forth in section 61.13(3)(m) and (s) regarding,
respectively, evidence of domestic violence and the developmental
stages and needs of the parties’ minor child. She further argues
that the trial court improperly considered itself bound by the
parties’ September 2016 time-sharing agreement, thereby
improperly abdicating its responsibility to make specific findings
as to the best interests of the parties’ minor child regarding child
support, custody, and visitation.
“It is well settled that a trial court has broad discretion in
child custody matters; its decision in that regard is reviewed for a
clear showing of an abuse of discretion.” Adair v. Adair, 720 So. 2d
316, 317 (Fla. 4th DCA 1998). Moreover, although section 61.13(3)
does indeed set forth a lengthy list of factors concerning the best
interests of the child that the trial court should evaluate in
determining issues of shared parental responsibility, “there is no
statutory requirement that the trial court make specific written
findings in a custody decision.” Id.; accord Neville v. McKibben, 227
So. 3d 1270, 1273 (Fla. 1st DCA 2017); Hindle v. Fuith, 33 So. 3d
782, 785 (Fla. 5th DCA 2010) (“Thus, a final judgment is not
erroneous simply for failing to list the factors on which it relied in
making its determination.”); Miller v. Miller, 842 So. 2d 168, 169
(Fla. 1st DCA 2003). “However, the trial court must find, at a
minimum, that its custody determination is in the best interests of
the child.” Neville, 227 So. 3d at 1273; but see Fazzaro v. Fazarro,
110 So. 3d 49, 51 (Fla. 2d DCA 2013) (holding there was no logic or
justification for the trial court’s decision to grant one party
ultimate responsibility over all decisions affecting the child).
To the extent that the former wife seeks reversal based on the
trial court’s failure to make specific findings under section
61.13(3), we hold that she waived that claim by failing to apprise
the trial court of the point in a motion for rehearing, so that the
court could have addressed the matter while the facts were still
18
fresh and easily recollected. Frost v. Frost, 227 So. 3d 227, 227 (Fla.
1st DCA 2017); Freiha v. Freiha, 197 So. 3d 606, 608 (Fla. 1st DCA
2016); Welch v. Welch, 22 So. 3d 153, 155-56 (Fla. 1st DCA 2009);
Helling v. Bartok, 987 So. 2d 713, 715 n.1 (Fla. 1st DCA 2008)
(citing cases). Nor do we find that she has demonstrated
fundamental error. Cf. Freiha, 197 So. 3d at 609. As we did in
Frost, we find this case distinguishable from Freiha, which
involved a total failure on the trial court’s part to address the focal
issue of the litigation, that being, the need for a parenting plan
that included a detailed timesharing schedule. Here, in contrast,
the trial court heard lengthy testimony concerning the parties’
revised time-sharing plan, determined that the parties had
entered into the plan voluntarily and without coercion, and further
found that the plan was in the child’s best interests.
However, the former wife makes the additional claim that the
trial court abdicated its authority to consider the best interests of
the child to the parties by adopting their September 2016 time-
sharing agreement. Although the former wife did not raise this
alleged error in a motion for rehearing, insofar as section
61.13(2)(c), Florida Statutes, mandates that the trial court “shall
determine all matters relating to parenting and time-sharing of
each minor child of the parties in accordance with the best
interests of the child,” whether a trial court abdicates that
authority takes on fundamental proportions. Accordingly, we will
consider the point under the instant facts for fundamental error.
The former wife’s argument under this point is predicated on the
well-established law expressed in Higgins v. Higgins, 945 So. 2d
593 (Fla. 2d DCA 2006), and Lane v. Lane, 599 So. 2d 218 (Fla. 4th
DCA 1992). We discuss the cases in reverse order below.
First, it is clear that Florida courts respect separation
agreements as long as they are fair “and are not tainted by fraud,
overreaching or concealment.” Sedell v. Sedell, 100 So. 2d 639, 642
(Fla. 1st DCA 1958). But, “[t]he ‘best interests’ of the child takes
predominance over any agreement between the parents and must
be independently determined by the trial court.” Puglisi v. Puglisi,
135 So. 3d 1146, 1148 (Fla. 5th DCA 2014). As the Fourth District
ruled in Lane, “a trial court’s responsibility to the child cannot be
abdicated to any parent [or to] any expert[.]” 599 So. 2d at 219.
Rather, “[t]hat heavy responsibility mandates that a court is not
19
bound by any agreement between parents, nor by the opinions of
any expert or group of experts.” Id.
Lane involved an appeal by the father of a final judgment
limiting his telephone contact with his son, restricting his
visitation to “supervised,” and domesticating a Michigan divorce
decree that granted “reasonable” visitation. The father and mother
had earlier agreed at mediation to be bound by a psychologist’s
opinion concerning whether visitation should be supervised or
unsupervised. Both that psychologist, as well as a second
psychologist—who did not interview the child—favored
unsupervised visitation. No hearing was held on the matter.
Instead, in entering its judgment, the trial court considered only
those printed reports, the father’s pre-dissolution Michigan
convictions, and “a novel time saver of some 14 pages of a ‘proffer’
[] stating the position of each parent.” Id. The Fourth District
reversed the trial court’s judgment. It held that the “rationale” for
the above-stated rule that “a court is not bound by any agreement
between parents, nor by the opinions of any expert or group of
experts,”
is the ability of the trial judge to observe the demeanor
and personalities of the parties and witnesses, to discern
delicate vibrations and hidden influences, and to
interpret nuances that are invisible in a cold record.
Custody and visitation are too important to both the child
and parents to restrict a determination to a reading of
unemotional and dispassionate words on a printed page.
Id. In short, the trial court in Lane should have held a hearing to
determine the best interests of the child.
While Higgins involved a different factual scenario, the facts
are no less compelling than those in Lane. In Higgins, the husband,
the wife, and the trial court engaged in ex parte letter writing
between the three in an attempt to resolve the issue of the wife’s
failure to abide by the terms of the parties’ settlement
agreement—which had been incorporated in the final judgment of
dissolution—as well as the wife’s announced intention to move
with the parties’ son to North Florida. At a hearing, where the
parties appeared pro se, the judge held the wife in contempt,
ordered her to be incarcerated, and modified child custody. Later
20
in the day, the judge released the wife, brought the parties back
into court, and ordered them to proceed to mediation. Still later,
the judge signed what the Second District described as “an odd
document” entitled “‘Order,’” indicating at the bottom that it was
“so ordered” by the judge, though it was clear from the body of the
order that it was an agreement entered into by the parties. The
order transferred official custody of the minor child to the husband.
Higgins, 945 So. 2d at 595.
On appeal, the wife challenged the order on the basis that
there had been no petition for such relief filed and modification
had been outside the scope of the hearing. The Second District held
that “the order would be reversible for those reasons if it was
intended to reflect the judge’s determination that the best
interests of the parties’ child warranted a custody modification.”
Id. Instead, it adopted the husband’s view that the order “simply
incorporated and approved the terms of the mediation agreement
signed by the parties.” Id. The Second District went on to consider
the record before it and discerned the following problems:
The record amply demonstrates that the circuit judge did
not guard against the strong possibility that Ms. Higgins
agreed to surrender custody of her son for reasons other
than the child’s best interests. To the contrary, the record
shows that she did so under highly coercive
circumstances that were devised by the judge himself.
With no prior notice and no counsel, this woman was
ordered directly to mediation by the very judge who had
just summarily held her in criminal contempt and placed
her in custody to serve a six month jail sentence.
Moreover, one of the judge’s stated reasons for the
contempt conviction was his announced determination
that Ms. Higgins’s attempt to relocate with the child was
barred by court order and therefore was unlawful. As
previously noted, this was simply untrue. Thus, in
addition to the foregoing, the judge sent this woman into
mediation after seriously misadvising her about her
rights.
Id. at 596-97 (footnote omitted). Hence, the Second District
concluded that the trial court abused its discretion, explaining:
21
Whether the judge in this case approved a hastily drafted
agreement, or whether he ordered a change of custody
without taking evidence, no reasonable person with
knowledge of the facts of this case would not question the
propriety of his decision. . . . No reasonable judge,
apprised of the highly coercive circumstances under
which this child custody agreement was made, would
have approved it.
Id. at 597 (citations omitted). Again, as occurred in Lane, the judge
in Higgins failed to personally take testimony to ascertain the best
interests of the child.
Although not cited by the former wife, this Court addressed
these same concerns in Sparks v. Sparks, 75 So. 3d 861 (Fla. 1st
DCA 2011). In Sparks, the parties entered into a pro se marital
settlement agreement in which they agreed upon the joint custody
of their minor child and set forth a schedule of rotating physical
custody. The father then filed a pro se petition for dissolution of
marriage in which he sought sole custody of the child, without
mentioning the agreement. In her answer and counter-petition,
the mother alleged that custody and visitation should be awarded
pursuant to the agreement and, on those grounds, moved for a
partial summary judgment on the issue of custody. This Court
emphasized the rule that “‘a trial court is not bound by any
agreement between parents, nor by the opinions of any experts or
group of experts.’” Sparks, 75 So. 3d at 862. (quoting Lane, 599 So.
2d at 219). We next noted:
The trial court denied the motion for partial summary
judgment and reserved “the right to evaluate a previously
executed marital settlement agreement to determine if
said agreement is in the best interests of the minor child,
which is to be determined after an evidentiary hearing.”
At the subsequent hearing, however, the trial court
announced, over the objection of the father, that it was
limiting its inquiry to the issues of whether the
settlement agreement was a product of fraud or duress
and whether the custody and visitation provisions of the
agreement were facially unreasonable. Because the
father had not formally moved to set aside the marital
22
settlement agreement, the father would be bound by that
agreement absent a finding of fraud, duress or
unreasonableness. Finding none of these things, the trial
court incorporated the marital settlement agreement in
its amended final judgment. It also adopted the parenting
plan submitted by the mother, a plan which, contrary to
the agreement, did not allow for liberal rotation of
physical custody.
Id. at 861-62. We reversed the trial court’s decision because the
court would not permit the father to present evidence as to
whether an award of custody pursuant to the agreement was in
the best interests of the child, explaining:
By his dissolution petition and his affidavit in opposition
to partial summary judgment, the father clearly advised
the trial court that he sought a custody award without
regard to the previous settlement agreement. Further, in
his affidavit the father asserted that shared custody of
the child with the mother was certainly not in the best
interest of the child given certain averments. Because
section 61.13(2)(c)[, Florida Statutes] requires a trial
court to determine all parenting issues in accordance
with the best interests of the child, and because the father
asserted below that the child custody and visitation
provisions of the settlement agreement are not in the best
interests of the child, the trial court erred in denying an
evidentiary hearing on the issues of custody and
visitation.
Id. at 862.
In the present case, we find the facts differ from those in
Sparks, Higgins, and Lane. Here, in contrast to Sparks, the trial
court did not deny the former wife a hearing on her motion to set
aside the settlement agreement and to present evidence of the best
interests of the child. Neither did the trial court orchestrate the
proceedings so as to deny the former wife her due process rights,
as did the trial court in Higgins. Finally, the trial court did not
base its decision to adopt the parties’ time-sharing plan on a cold
record, as did the trial court in Lane. Instead, the court held a
hearing and heard testimony from the former wife, who was
23
represented by counsel, as well as testimony from the former wife’s
first attorney, who originally assisted the parties in reaching the
agreement.
As a result, the trial court was in a better position than we are
now “to discern delicate vibrations and hidden influences, and to
interpret nuances,” in the testimony. Lane, 599 So. 2d at 219. The
record supports the conclusion that the trial court considered the
credibility of the witnesses, rather than deferring that
responsibility to this Court, an additional, pivotal point in Lane.
Id. (“Nor can this court substitute its opinion for that of the trier
of fact.”). Moreover, the parties were certainly not strangers to
stipulated agreements, as evidenced by the January 16, 2016
Stipulated Temporary Order.
Therefore, we conclude that the former wife has not carried
her burden of demonstrating that the trial court “abdicated” its
duty to determine the best interests of the child in adopting the
parties’ parenting plan. The court’s decision to do so—following an
evidentiary hearing—was based on competent, substantial
evidence. Accordingly, under the circumstances of this case, we
hold the trial court did not fundamentally err in denying the
former wife’s motion to set aside the time-sharing plan, and in
formally adopting it and incorporating it into the final judgment.
B. The trial court’s denial of the former wife’s motion for
contempt.
Under what is the former wife’s third point, she argues that
the trial court should have found that the former husband was in
contempt of court by not paying child support in accordance with
the January 7, 2016 Stipulated Temporary Order, since the court
had not formally adopted the September 26, 2016 parenting plan
as required by section 61.046(14)(a)1., Florida Statutes. We
conclude the trial court did not abuse its discretion in denying the
former wife’s motion. The court evaluated the evidence, the most
prominent being the intervening September 2016 parenting plan
agreement—by which the former husband had abided—and
properly found it sufficient to support its finding that the former
husband’s failure to pay the monthly support due under the
January 2016 order was not willful. See Bowen v. Bowen, 471 So.
2d 1274, 1278-79 (Fla. 1985). Consequently, we hold that the
24
former wife has failed to demonstrate reversible error under this
point.
III. FORMER HUSBAND’S CROSS-APPEAL
A. “Non-pecuniary compensatory damages” as a marital
asset.
Identification of an asset as marital or non-marital for
purposes of equitable distribution is reviewed de novo. Puskar v.
Puskar, 29 So. 3d 1201 (Fla. 1st DCA 2010).
When a trial court makes an equitable distribution
award, it must provide specific factual findings that
identify and distinguish the marital assets from the non-
marital assets. See § 61.075(3)[, Florida Statutes]
(requiring 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”).
Smith v. Smith, 996 So. 2d 924, 925 (Fla. 1st DCA 2008). In
Florida, when a trial court is called upon to determine the marital
or nonmarital status of a monetary award received by a spouse as
damages stemming from a lawsuit, a workers’ compensation claim,
or from disability, it must utilize the “analytical approach” adopted
by the Florida Supreme Court in Weisfeld v. Weisfeld, 545 So. 2d
1341, 1346 (Fla. 1989). Under that approach,
the damage award is allocated in accordance with the
following: (a) the separate property of the injured spouse
includes the noneconomic compensatory damages for
pain, suffering, disability, and loss of ability to lead a
normal life and the economic damages which occur
subsequent to the termination of the marriage of the
parties, including the amount of the award for loss of
future wages and future medical expenses; (b) the
separate property of the noninjured spouse includes loss
of consortium; and (c) the marital property subject to
distribution includes the amount of the award for lost
wages or lost earning capacity during the marriage of the
parties and medical expenses paid out of marital funds
25
during the marriage. The marital property should also
include those funds for which no allocation can be made.
Id. at 1345 (emphasis added) (relying on the principles set forth in
Johnson v. Johnson, 346 S.E.2d 430 (1986)). In adopting this
approach, the supreme court advised: “[A]pplication of this
approach requires an understanding by the trial judge of the
purpose of the damage award.” Id. at 1346. That observation
reiterates a declaration made by the Third District Court of Appeal
in Weisfeld v. Weisfeld, 513 So. 2d 1278 (Fla. 3d DCA 1987), and
quoted by the supreme court in its opinion affirming the Third
District’s decision: “[T]he trial court’s inquiry should focus ‘on the
elements of damages the particular award was intended to remedy
or, stated another way, the purpose of the award . . . .’” 545 So. 2d
at 1343-44 (quoting Weisfeld, 513 So. 2d at 1281).
In the present case, in its equitable distribution table, the trial
court placed all of the $70,000 award in the husband’s column,
thereby denominating it as a marital asset on the basis of the letter
from his attorney, Adam J. Conti, to the Department of the Army,
and the two letters he received in response. But that decision
misperceived the evidence. In Conti’s letter, the $70,000 was
designated as “nonpecuniary compensatory damages,” while the
remainder of the award was itemized as back pay, front pay, and
attorney’s fees. In neither of the letters from the Department of the
Army was the $70,000 designated “nonpecuniary compensatory
damages,” or as any other form of specific damages. Instead it was
treated simply as a separate recovery within “the Army’s Final
Decision for implementation concerning the subject EEO
complaint[.]” (The administrative decision, itself, was not
presented in evidence.)
As stated above, after the equitable distribution table, the
trial court set forth specific findings explaining its distribution
decisions. To recap, concerning the $70,000, the court declared:
This is the “nonpecuniary compensatory damages” of
$70,000 pertaining to the Army Corps of Engineers claim.
Both parties have cited the Weisfeld case which states
that “non economic compensatory damages for pain and
suffering” are to be classified as the injured party’s non-
marital asset. There is no evidence as to this portion of
26
the claim being even labeled for any genuine “pain and
suffering.” In the absence of any document whatsoever
which states these damages are for “pain and suffering”
then the court finds this asset accrued during the
marriage is properly classified as a marital asset.
The court then went on to find that the former wife had made no
claim to any portion of the former husband’s award of front pay.
It is clear from the forgoing that the trial court attempted to
apply the analytical approach from Weisfeld in seeking to
denominate the $70,000 damage award as marital. There is, in the
former husband’s argument, a striking oxymoron created by
describing a monetary value of $70,000 as “nonpecuniary.”
“Nonpecuniary” is defined as “not consisting of money.” See
“Nonpecuniary,” Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/nonpecuniary (last
viewed Aug. 29, 2018).
Notwithstanding the incongruous terminology, it is clear from
the context of the questioning that the parties and the trial court
utilized the term “nonpecuniary” with the intent to mean
“noneconomic,” as that term was used in Weisfeld. Although the
three letters admitted into evidence do not explicitly specify that
the $70,000 was awarded to compensate the former husband for
any noneconomic pain and suffering he might have endured as a
result of the alleged harassment during his employment and his
subsequent firing, the former husband testified that that is
precisely what the $70,000 was intended to compensate him for.
And, because the former husband’s testimony went unrebutted
and was consistent with Mr. Conti’s allocation of the $70,000
portion of the award as “compensatory,” it was sufficient to
establish that the $70,000 was the former husband’s separate
property, not subject to equitable distribution as a marital asset.
White v. White, 705 So. 2d 123, 124 (Fla. 2d DCA 1998) (holding
that where the “[t]he only testimony regarding the purpose of the
award came from the husband,” “[t]he unrebutted evidence
established that the personal injury award was the husband’s
separate property, not subject to equitable distribution”); accord
Gibbons v. Gibbons, 10 So. 3d 127, 132-33 (Fla. 2d DCA 2009);
27
Lacher v. Lacher, 993 P.2d 413 (Alaska 1999). Accordingly, we hold
the trial court erred in designating the $70,000 as a marital asset.
B. The trial court’s adoption of the former wife’s equitable
distribution scheme.
Under this point the former husband challenges (1) the trial
court’s unequal distribution of the marital assets; (2) its failure to
award him sole ownership of the lawnmower, a Coke machine, and
a gumball machine located in the former wife’s house, which the
former wife agreed below belonged to him; (3) the trial court’s
decision to adopt the former wife’s valuation of the net back-pay
awarded the former husband, which was accomplished through
use of the FinPlan software program; and, (4) the trial court’s
decision to order the former husband to make a lump sum
equalization payment of $80,596 to the former wife.
Due to our decision to reverse the equitable distribution to the
extent that the trial court misclassified the $70,000 as a marital
asset—which necessarily affects the overall plan for equitable
distribution of the marital property—we are compelled to vacate
the entire equitable distribution scheme and remand the cause for
the trial court to reconsider equitable distribution consistent with
this decision, in order to do equity and justice to both parties.
Young v. Young, 606 So. 2d 1267, 1270 (Fla. 1st DCA 1992);
Sweeney v. Sweeney, 583 So. 2d 398, 399 (Fla. 1st DCA 1991).
However, our resolution of the former husband’s remaining points
on cross-appeal should be instructive to the trial court on remand.
First, the trial court must reconsider its valuation of the
former husband’s award of back pay. The only competent evidence
of record is the former husband’s testimony that he received
$71,082 out of the $112,618 awarded him in back pay. See White,
705 So. 2d at 124. That figure was consonant with the amount set
forth in the husband’s exhibits—the letters from the Department
of the Army. The trial court’s rejection of that figure in favor of the
former wife’s FinPlan software calculation of $83,844 was based
on speculation and not on any other competent, substantial
evidence presented by the former wife disputing the former
husband’s testimony. Therefore, the trial court abused its
discretion in utilizing the $83,844 number. On remand, the court
28
should use the figure of $71,082 in determining the value of that
marital asset.
We also agree with the former husband that the trial court
erred when it provided that if the former husband failed to pay the
lump sum equalization payment within ten days of the entry of the
final judgment, the amount due would be reclassified as alimony.
First, at the outset of the hearing, the former wife, through
counsel, advised the trial court that there would be “no claim for
alimony.” Second, once reclassified, the so-called alimony
payments were expressly ordered “not [to] terminate upon the
Wife’s death or remarriage and shall not be subject to termination
or modification in the event the Wife enters into a supportive
relationship.” The latter language is wholly at odds with the
definitions of the various forms of alimony authorized by section
61.08(5)-(8), Florida Statutes, all of which provide that the alimony
shall end upon the death or remarriage of the receiving spouse.
Furthermore, as the former husband points out, a lump sum
payment award that effects a property distribution is not
enforceable by contempt, as are alimony awards. Bongiorno v.
Yule, 920 So. 2d 1209, 1210 (Fla. 1st DCA 2006); see also Braswell
v. Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). Accordingly,
on remand, in reconsidering the equitable distribution scheme, the
trial court should not reclassify any equalization payments as
alimony as a sanction for the former husband’s failure to make that
lump sum payment.
Lastly, because the former wife agreed that the former
husband is entitled to sole ownership of the lawnmower, the Coke
machine, and the gumball machine, the trial court is instructed on
remand to award those specific items to the former husband.
We dismiss as unfounded, however, the former husband’s
claim that the trial court abused its discretion in failing to order
an unequal distribution of $17,770.50, representing that portion of
the back pay—which was otherwise held to be a marital asset—
that accrued during the period of time between December 28, 2014,
to June 1, 2015 (the date of filing), when the parties were
separated. The decisions relied on by the former husband—Moon
v. Moon, 594 So. 2d 819 (Fla. 1st DCA 1992); Krafchuk v. Krafchuk,
804 So. 2d 376 (Fla. 4th DCA 2001); and Heslop v. Moore, 716 So.
29
2d 276 (Fla. 3d DCA 1998)—represent extreme factual scenarios
and substantial periods of separation not equaled in the present
case. See Boyle v. Boyle, 30 So. 3d 665, 666-67 (Fla. 5th DCA 2010).
Moreover, as recognized in Boyle, the statute in Moon does not
comport with the language of the current statute. Id. at 666 n.1. In
the present case, the separation was a mere five months, and no
compelling evidence was submitted that would shift the equities in
favor of the former husband during the separation. The former
husband clearly has more liquid assets than does the wife. It is
submitted, therefore, that the trial court did not abuse its
discretion in not making an unequal distribution of the assets
during the period of separation. See Cooley v. Cooley, 43 Fla. L.
Weekly D1965, D1967 (Fla. 2d DCA Aug. 24, 2018) (reversing the
trial court’s decision to make an unequal distribution;
distinguishing Heslop and Boyle, and concluding “there was no
need for an unequal distribution based on the parties living
separate lives,” observing that “the parties were married for eight
years and separated after four years,” “[t]he petition for dissolution
was filed less than two years after the separation date,” and the
parties “agreed to use the date of separation for identifying and
valuing nearly all of the marital assets and liabilities” except for
the marital home).
C. The trial court’s ordering the former husband to
maintain a policy of life insurance and to pay the former
wife’s attorney’s fees.
In its final judgment, the trial court ordered both parties to
“keep in full force and effect” life insurance policies of at least
$100,000, naming the other party as beneficiary of such policy “in
trust for the parties’ minor child,” “for so long as either party has
an obligation to pay child support.” Notably, in his counter-petition
for dissolution of marriage, the former husband pleaded “that both
parties be required to maintain life insurance on his or her life as
security for child support, with the other party designated as the
beneficiary of same in trust for the use and benefit of the parties’
minor child, on both a temporary and permanent basis.” Having
requested what the trial court ultimately ordered, we conclude the
former husband has waived any objection to the trial court’s
granting that request. Furthermore, to the extent the former
30
husband challenges a lack of findings regarding the need and
ability to pay for a life insurance policy, those omissions should
have been brought first to the trial court’s attention in a motion for
rehearing, which it was not. See Anaya v. Anaya, 987 So. 2d 806,
807 (Fla. 5th DCA 2008) (Mem.) (citations omitted) (“A party may
not complain about ‘inadequate findings in a dissolution case
unless the alleged defect was brought to the trial court’s attention
in a motion for rehearing.’”).
For the same reason, because the former husband’s failure to
raise in a motion for rehearing the trial court’s lack of findings as
to the former wife’s need for her attorney’s fees to be paid, and the
former husband’s ability to pay the fees, the issue of the court’s
failure to make those findings was not preserved for review. A
party will not be heard to complain of an absence of factual
findings for the first time on appeal. Brock v. Brock, 229 So. 3d 425
(Fla. 1st DCA 2017) (Mem.); Byers v. Byers, 149 So. 3d 161, 161–
62 (Fla. 1st DCA 2014); Furr v. Furr, 57 So. 3d 914, 914 (Fla. 1st
DCA 2011) (Mem.); Mize v. Mize, 45 So. 3d 49, 49 & n.1 (Fla. 1st
DCA 2010); Welch, 22 So. 3d at 155–56; Simmons v. Simmons, 979
So. 2d 1063, 1064 (Fla. 1st DCA 2008); Owens v. Owens, 973 So. 2d
1169, 1169 (Fla. 1st DCA 2007).
IV. CONCLUSION
For the reasons stated above, the Final Judgment of
Dissolution of Marriage is affirmed, in part, reversed, in part, and
remanded for further proceedings consistent with this opinion.
AFFIRMED, in part, REVERSED, in part, and REMANDED with
instructions.
MAKAR and OSTERHAUS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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Mary Grace Vinson, pro se, Appellant/Cross-Appellee.
Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for
Appellee/Cross-Appellant.
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