ANTHONY v. DISTEFANO v. ANDREA L. DISTEFANO , 253 So. 3d 1178 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ANTHONY V. DISTEFANO, )
)
Appellant, )
)
v. ) Case No. 2D17-967
)
ANDREA L. DISTEFANO, )
)
Appellee. )
)
Opinion filed August 15, 2018.
Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.
Paul J. Phipps of the Law Office of Amber
Boles, P.A., Tampa (withdrew after
briefing); Alexis Fields of Kopelowitz,
Ostrow, Ferguson, Weiselberg, & Gilbert,
Ft. Lauderdale (substituted as counsel of
record), for Appellant.
Allison M. Perry of Florida Appeals, P.A.,
Tampa, for Appellee.
BADALAMENTI, Judge.
Anthony Distefano (former husband) seeks review of a final judgment
dissolving his marriage to Andrea Distefano (former wife) entered after a bench trial.
After careful review, we reverse the final judgment to the extent it classifies the family
home and a Toyota Camry purchased during the marriage as the former wife's
nonmarital property.
Approximately one month after the couple married, the former wife sold a
home she had purchased prior to the marriage (the Hartnett home). The $62,232.23
profit the former wife received from the sale of the Hartnett home was deposited into
personal checking and savings accounts she, as sole owner, held at Suncoast Federal
Credit Union. The former wife testified that she used her Suncoast personal checking
and savings accounts both before and during her marriage to the former husband. She
noted, "I've always, I mean, I've always written bills from, from these accounts." She
explained that she had "written bills," like the mortgage, car loans, and insurance for
herself and the former husband, from the Suncoast personal bank accounts. She
further testified that paychecks she earned during the marriage were deposited into her
personal Suncoast checking account. Approximately five months after the couple
married, the former wife utilized funds from her Suncoast checking and savings
accounts to make a down payment on what would become the home where she, the
former husband, and their infant child would reside (the Clendenning home). She
explained that the Clendenning home, which was titled in her name only and secured by
a mortgage also taken out by her, was not intended to be a gift to the former husband.
Also during the marriage, the former wife purchased a 2014 Toyota
Camry. To partially fund that purchase, the former wife both traded in a vehicle that she
owned prior to the marriage and used funds from the Suncoast checking account. She
secured a car loan for the difference owed for that purchase.
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In its final judgment, the trial court classified the Clendenning home as the
former wife's nonmarital asset because a portion of the funds with which the home was
purchased could be traced to nonmarital property, namely, the proceeds from the sale
of the Hartnett home. Similarly, the trial court classified the Toyota Camry as nonmarital
property because a portion of the funds used to purchase it could be traced to proceeds
from the trade-in value of the former wife's premarital vehicle. As will be explained, the
trial court's classification of both the Clendenning home and the Toyota Camry as
nonmarital property was error.
"We review a trial court's characterization of an asset as marital or
nonmarital de novo and any factual findings necessary to make this legal conclusion for
competent, substantial evidence." Dravis v. Dravis, 170 So. 3d 849, 852 (Fla. 2d DCA
2015) (citing Tradler v. Tradler, 100 So. 3d 735, 738 (Fla. 2d DCA 2012)). In section
61.075, Florida Statutes (2015), "[t]he legislature has set forth a statutory scheme to
guide the trial court's equitable distribution of assets upon dissolution of a marriage."
Nelson v. Nelson, 206 So. 3d 818, 819 (Fla. 2d DCA 2016). Under Florida's equitable
distribution statute, marital assets include "[a]ssets acquired . . . during the marriage,
individually by either spouse or jointly by them." § 61.075(6)(a)(1)(a). Nonmarital
assets, which are not subject to equitable distribution, include "[a]ssets acquired . . . by
either party prior to the marriage, and assets acquired . . . in exchange for such assets .
. . ." § 61.075(6)(b)(1).
As an initial matter, the trial court properly classified the former wife's
personal Suncoast checking and savings accounts as marital assets. This is because,
although titled only in the former wife's name, it is undisputed that the former wife
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commingled funds she acquired prior to the marriage with funds she acquired during the
marriage in her Suncoast checking and savings accounts. See Pfrengle v. Pfrengle,
976 So. 2d 1134, 1136 (Fla. 2d DCA 2008).
With this in mind, we now explain why we agree with the former husband's
contention on appeal that the trial court erred by classifying the Clendenning home as a
nonmarital asset. First, it is undisputed that the Clendenning home was acquired during
the marriage individually by the former wife. It thus falls squarely within the meaning of
marital assets as set forth by the plain and ordinary language of the equitable
distribution statute. See § 61.075(6)(a)(1)(a) (setting forth that marital assets include
"[a]ssets acquired . . . during the marriage, individually by either spouse or jointly by
them") (emphasis added). Second, it is undisputed from the record that the former wife
utilized marital funds from her personal Suncoast checking and savings accounts to
place a down payment on the home, to make mortgage payments for that home, to
make car payments for both herself and her former husband, and to cover other
expenses incurred during their marriage. Once the former wife commingled the sale
proceeds from the Hartnett home with the paychecks she earned during the marriage
into her personal Suncoast accounts, all the funds in those accounts became marital
assets. See Pfrengle, 976 So. 2d at 1136; see also Dravis, 170 So. 3d at 852
("Nonmarital assets may lose their nonmarital character and become marital assets
where, as here, they have been commingled with marital assets." (citing Abdnour v.
Abdnour, 19 So. 3d 357, 364 (Fla. 2d DCA 2009))); Steiner v. Steiner, 746 So. 2d 1149,
1151 (Fla. 2d DCA 1999) ("Once the funds were commingled and used for joint
expenses, they lost their separate character and became untraceable."). This, in turn,
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made the Clendenning home a marital asset subject to equitable distribution pursuant to
section 61.075(1).
In Pfrengle, we reversed the trial court's classification of several real
properties acquired by the former husband during the marriage as nonmarital property.
976 So. 2d at 1136. The trial court reasoned that because the former husband made
down payments on new properties utilizing the profits he received from the sale of
properties he owned prior to entering the marriage, the new properties were not marital
property. Id. On appeal, we rejected the former husband's argument that because the
sum total of the properties he purchased was less than the aggregate profits he
received from the sale of his premarital properties, they should be classified as
nonmarital property. We reasoned that although the former husband maintained
separate accounts through which he purchased the properties, it was undisputed that
he transferred money to and from all of the accounts, including his personal checking
account, where he had deposited sales commissions he earned during the marriage.
Id. In Pfrengle, we expressed the importance of maintaining nonmarital and marital
assets separately, especially money held in bank accounts. Id. ("Money is fungible,
and once commingled it loses its separate character." (citing Belmont v. Belmont, 761
So. 2d 406, 408 (Fla. 2d DCA 2000))).
We explained that once the former husband commingled both money from
the sale of his premarital properties with commissions he earned as a sales
representative during the marriage in his personal checking account, it made all the
money held in the personal checking account a marital asset. Id. And because the
down payments for the properties purchased during the marriage were made, in part,
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from the former husband's personal checking account containing marital assets, those
properties also became marital assets. Id.
Here, like the former husband in Pfrengle, the former wife owned real
estate prior to entering the marriage, sold that real estate during the marriage,
deposited the profit of that sale into her personal bank accounts, and then utilized that
profit to make a down payment on new real estate. Also like the former husband in
Pfrengle, the former wife's employer deposited the income she earned from working
during the marriage into the same personal bank account she had deposited the profit
from the sale of her home. Based on the former wife's own testimony, her personal
Suncoast checking and savings accounts were used to make a down payment on the
Clendenning home and to pay expenses incurred by her and the former husband during
the marriage, like their car loans, insurance, and mortgage.
As Pfrengle instructs us, the commingling of the money the former wife
earned from the sale of the Hartnett home with income she earned during the marriage
transformed the very character of what once were her personal bank accounts into
marital assets.1 See id. (holding that the trial court erred in classifying certain properties
as nonmarital assets because the properties at issue were purchased during the
marriage using funds taken from an account containing commingled marital funds and
therefore the properties purchased became marital assets as a matter of law); cf.
Steiner, 746 So. 2d at 1151 (concluding that because the former husband's bank
account became marital when he deposited his earnings into that account, principal
1It
is noteworthy that our conclusion is further supported by the joint
equitable worksheet attached to the final judgment here, which classifies the Suncoast
checking and savings accounts as marital assets.
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mortgage reductions paid out of that account also became marital assets). In sum, the
Clendenning home is a marital asset because it was acquired during the marriage with
commingled funds from the former wife's personal checking and savings accounts.
Next, the former husband argues that the trial court further erred by
classifying the 2014 Toyota Camry as the former wife's nonmarital asset. For the same
reasons we reverse the classification of the Clendenning home as a nonmarital asset,
we reverse this classification. Again, the Toyota Camry is a marital asset pursuant to
section 61.075(6)(a)(1)(a) because it was acquired by the former wife during the
marriage, in part, with commingled money held in the former wife's Suncoast checking
account containing marital funds. See Dravis, 170 So. 3d at 852. Because the former
wife used marital funds to purchase the Toyota Camry, it thus follows that the Toyota
Camry is also a marital asset subject to equitable distribution. See Pfrengle, 976 So. 2d
at 1136; see also Struble v. Struble, 787 So. 2d 48, 50 (Fla. 2d DCA 2001) (concluding
that the trial court erred in classifying the former wife's 1995 Toyota as her separate
nonmarital asset because the vehicle was purchased by the former wife during the
marriage using funds from a bank account that contained marital money). Accordingly,
we reverse the final judgment to the extent it classifies the Toyota Camry as the former
wife's nonmarital asset.
As a final matter, the former husband argues, and the former wife laudably
concedes, that the final judgment contains an internal inconsistency as it relates to the
former husband's responsibility to repay in full a $10,000 loan the former wife made to
Tonand Enterprises, LLC, an entity the parties formed together prior to their marriage.
In section G of the final judgment, the trial court determined that the former husband is
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responsible for 100% of the debt incurred by Tonand Enterprises, LLC. However, in
section H, the trial court determined that the former husband and former wife are each
50% responsible for the $10,000 loan the former wife made to Tonand Enterprises,
LLC. The joint equitable distribution worksheet reflects that each party is responsible
for paying $5000. Based on the internal inconsistency created by sections G and H of
the final judgment, we reverse and remand for the trial court to correct this
inconsistency in its judgment. See Suk v. Chang, 189 So. 3d 224, 226 (Fla. 2d DCA
2016) ("[D]issolution judgments that contain internal inconsistencies must be reversed
so the inconsistencies can be corrected.").
In sum, we reverse the final judgment's classification of the Clendenning
home and the Toyota Camry as nonmarital assets. We remand to the trial court with
instructions to classify them as marital assets and revise the equitable distribution
scheme accordingly. See Pfrengle, 976 So. 2d at 1136. In so reversing, we express no
opinion as to the trial court's redistribution, in its discretion, of marital assets in light of
our opinion. We also reverse and remand to the trial court with instructions to correct
the final judgment as it relates to the internal inconsistency created by sections G and H
of the final judgment.2 See Suk, 189 So. 3d at 226.
Affirmed in part; reversed in part; remanded with instructions.
LaROSE, C.J., and BLACK, J., Concur.
2Weaffirm without comment the remaining issues raised by the former
husband in this appeal.
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