Thomas-Nance v. Nance , 2016 Fla. App. LEXIS 5922 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TANGIE L. THOMAS-NANCE, )
)
Appellant, )
)
v. ) Case No. 2D15-2320
)
GAYLAND MARCIO NANCE, )
)
Appellee. )
)
Opinion filed April 20, 2016.
Appeal from the Circuit Court for
Hillsborough County; Martha J. Cook,
Judge.
Deborah Marks of Deborah Marks, P.A.,
Miami, for Appellant.
No appearance for Appellee.
VILLANTI, Chief Judge.
Tangie L. Thomas-Nance (the Wife) seeks review of the final judgment of
dissolution of her marriage to Gayland Marcio Nance (the Husband). We affirm all
aspects of the final judgment except the provision that permitted the Husband to pay the
Wife her $25,000 interest in the marital home at the rate of $100 per month. As to that
single issue, we reverse and remand for reconsideration.
The parties were able to resolve all of the issues between themselves
except for the disposition of the marital home, which was the only asset of significant
value owned by the parties. The Husband had inherited the home from his mother
during the course of the marriage, but he added the Wife's name to the deed and she
contributed to the upkeep and maintenance of the home during the parties' twenty-two-
year marriage. The parties agreed that the home was marital property, that the amount
of equity was $50,000, and that each should receive half of that amount.
Because the parties had few other assets, neither party had the ability to
buy out the other's share of the home. The Wife suggested that the house be sold so
that the parties could each take their interest from it. The Husband objected to this
suggestion because he wanted to keep the home he inherited. Recognizing the
sentimental value of the home to the Husband, the magistrate recommended that the
Husband keep the home and pay the Wife for her interest. The magistrate then asked
the Husband how much he thought he could afford to pay the Wife each month toward
her interest in the home. The Husband replied that he thought he could afford to pay
$100 per month. Without questioning the Husband any further, and with no reference to
or discussion of the Husband's income and expenses as reflected on his financial
affidavit, the magistrate recommended that the Husband pay the Wife $100 per month
until the $25,000 balance was paid off. Then, despite this extended payment plan, the
magistrate recommended that the Wife be required to quitclaim her interest in the home
to the Husband within thirty days of entry of the final judgment. The trial court adopted
the magistrate's recommendations without discussion.
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This decision, which effectively deprives the Wife of her present interest in
the marital home, constitutes an abuse of discretion. "Discretion . . . is abused when
the judicial action is arbitrary, fanciful, or unreasonable." Canakaris v. Canakaris, 382
So. 2d 1197, 1203 (Fla. 1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967
(9th Cir. 1942)). The payment plan authorized by the trial court, which requires the Wife
to wait more than twenty years to receive her share of the marital assets, is patently
unreasonable.
In this regard, this case is quite similar to that of Posner v. Posner, 39 So.
3d 411 (Fla. 4th DCA 2010). There, the trial court ordered the wife to pay an equalizing
payment of $85,413 to the husband at a rate of $100 per month, finding that the wife
could not afford to pay more. On appeal, the Fourth District noted that at that rate it
would take more than seventy years for the wife to pay the debt to the husband. The
court concluded that "to deprive the husband of the majority of the assets of the
marriage for the rest of his life is an abuse of discretion." Id. at 415. In reversing and
remanding for reconsideration of that award, the Fourth District counseled:
We further require that the trial court refashion the
repayment of this amount so that the husband is not
foreclosed from a more expeditious repayment of the
amount of the equalization payment. This could be
accomplished by various methods. Those may include, but
are not limited to: providing a shorter payout period,
including a lump sum repayment after a few years;
repayment from the sale of various of the wife's assets,
particularly the marital home; or allowing the amount to be
reduced to judgment so that the husband is permitted to
collect it from the wife's assets. Except for the option of
simply reducing the equalizing payment to judgment, the
court should retain specific jurisdiction over the future
repayment provisions to account for changed circumstances.
The court cannot, however, retain jurisdiction to change the
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amount of the original equalization payment, which is a set
property division between the parties.
Id.; see also Evans v. Evans, 128 So. 3d 972, 973 (Fla. 1st DCA 2013) (reversing an
equitable distribution scheme that allowed the wife to pay the husband for his interest in
the marital home over a period of twenty years because the award "effectively deprives
the former husband of his present one-half interest in the marital home"). In other
words, the sentimental interest of one party in marital property cannot take priority over
financial fairness to the other party.
Here, like the rulings in Posner and Evans, the trial court's order giving the
Husband 20.83 years to pay the Wife for her present interest in the marital home
constitutes an abuse of discretion. This abuse of discretion is compounded by the
requirement that the Wife relinquish her entire interest in the home by quitclaim deed
within thirty days of entry of the judgment. Accordingly, we reverse the final judgment
as to this issue. On remand, as discussed in Posner, the trial court shall reconsider the
award of this asset in light of the other available options, including having the Husband
obtain a mortgage or line of credit to pay the Wife, requiring the Husband to sell the
home to pay the Wife, or reducing the amount to judgment so the Wife may collect
against the Husband's other assets, if there are any. We also caution that if the trial
court elects to refashion the payment plan on remand, it must consider whether to
impose interest payable to the Wife on the unpaid balance, see Erp v. Erp, 976 So. 2d
1234, 1240 (Fla. 2d DCA 2008) (noting that the wife had a right to statutory interest on
the equalizing payment that arose as of the date of the judgment); it must consider
whether to impose a lien on the home in favor of the Wife for the amount due from the
Husband, see Harper v. Harper, 586 So. 2d 1147, 1148 (Fla. 2d DCA 1991); and it
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should retain jurisdiction over any repayment provisions to account for any future
change in circumstances.
Affirmed in part, reversed in part, and remanded for further proceedings.
LaROSE and LUCAS, JJ., Concur.
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