Third District Court of Appeal
State of Florida
Opinion filed January 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-1705
Lower Tribunal No. 16-1452
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Bennett David Frank,
Appellant/Cross-Appellee,
vs.
Marsha Kay Frank,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Bernard S.
Shapiro, Judge.
Marks & West, P.A., and Evan R. Marks and Carolyn W. West, for
appellant/cross-appellee.
Lorenzen Law, and Dirk Lorenzen, for appellee/cross-appellant.
Before FERNANDEZ, LOGUE and GORDO, JJ.
LOGUE, J.
Bennett David Frank, the former husband, appeals a judgment for Marsha Kay
Frank, the former wife, arguing the trial court failed to make the factual findings
necessary to support its determination of equitable distribution and alimony. The
former wife cross-appeals the trial court’s apportionment to her of 25% of a lien on
the marital home stemming from fines allegedly incurred as a result of the former
husband’s actions. Regarding the absence of adequate factual findings, we agree
with the former husband and therefore reverse and remand. We affirm in all other
respects.
FACTUAL AND PROCEDURAL BACKGROUND
The parties were married for over twenty years when the former wife filed for
dissolution in 2016. They have six children. 1 The couple was married in Missouri.
Before the marriage, the former wife worked as a physical therapist and the former
husband worked as a neurologist. After the marriage, the wife largely worked at
home managing the children and house. Four years into the marriage, the former
husband suffered a heart attack. He was 39. The former wife was then pregnant with
their fourth child. After his heart attack, the former husband worked fewer hours in
his neurology practice. He began receiving disability payments under a disability
income policy obtained during the marriage.
1
Four of the children were minors at the time of the petition for dissolution. By the
time of trial, only two children remained as minors.
2
In 2011, the parties moved to Florida. In 2012, they purchased a house in
Miami Beach (the “Meridian Home”) for $1.6 million. In Florida, the former
husband worked as a neurologist at the Veteran’s Administration hospital in West
Palm Beach. The former wife initially stayed home to care for the children but later
returned to work as a physical therapist. In the years leading up to the trial, the
husband’s annual earnings were $195,539; the wife’s were $85,604 with overtime
pay, however, the trial court estimated her annual earning capacity at $75,000.
After a bench trial, the court entered a final judgment that (1) established an
equitable distribution scheme mainly benefitting the former wife, (2) awarded her
$2,000 per month in alimony of an unspecified type and duration, (3) awarded child
support which had been previously granted, and (4) established a parenting plan
which had been agreed to by the parties.
ANALYSIS
a. Equitable Distribution
The former husband first argues that the trial court erred in requiring him to
pay the former wife an equalizing payment of $942,014 while distributing the
Meridian Home and its mortgage to him. Under the terms of the judgment, if the
former husband failed to tender the equalizing payment, the final judgment required
the Meridian Home be auctioned and the proceeds from the auction split between
the parties after payment of the mortgage and the auctioneer’s fees.
3
Pursuant to section 61.075(3), Florida Statutes, “any distribution of marital
assets or marital liabilities shall be supported by factual findings in the judgment or
order based on competent substantial evidence with reference to the factors
enumerated in subsection (1).” 2 “While we review the trial court’s factual findings
2
The factors enumerated in subsection (1) of Florida’s equitable distribution statute
include:
(a) The contribution to the marriage by each spouse, including
contributions to the care and education of the children and services as
homemaker.
(b) The economic circumstances of the parties.
(c) The duration of the marriage.
(d) Any interruption of personal careers or educational opportunities
of either party.
(e) The contribution of one spouse to the personal career or
educational opportunity of the other spouse.
(f) The desirability of retaining any asset, including an interest in a
business, corporation, or professional practice, intact and free from any
claim or interference by the other party.
(g) The contribution of each spouse to the acquisition, enhancement,
and production of income or the improvement of, or the incurring of
liabilities to, both the marital assets and the nonmarital assets of the
parties.
(h) The desirability of retaining the marital home as a residence for
any dependent child of the marriage, or any other party, when it would
be equitable to do so, it is in the best interest of the child or that party,
and it is financially feasible for the parties to maintain the residence
until the child is emancipated or until exclusive possession is otherwise
terminated by a court of competent jurisdiction. In making this
determination, the court shall first determine if it would be in the best
interest of the dependent child to remain in the marital home; and, if
not, whether other equities would be served by giving any other party
exclusive use and possession of the marital home.
(i) The intentional dissipation, waste, depletion, or destruction of
marital assets after the filing of the petition or within 2 years prior to
the filing of the petition.
4
under an abuse of discretion standard, failure to make the factual findings is an abuse
of discretion and has been held to be reversible error.” Ortiz v. Ortiz, 45 Fla. L.
Weekly D1929, at *1 (Fla. 3d DCA Aug. 12, 2020) (citing Callwood v. Callwood,
221 So. 3d 1198, 1201–02 (Fla. 4th DCA 2017) (“Reversible error occurs where ‘the
equitable distribution in the final judgment is not supported by factual findings with
reference to the factors listed in section 61.075(1), as required by section 61.075(3)
when a stipulation and agreement has not been entered and filed.’” (internal citations
omitted)).
Here, the final judgment makes only a cursory reference to the statutory
requirement that the parties’ “assets and liabilities should be equitably distributed.”
There is no discussion of any of the statutory factors. Because of this absence of
findings, the portion of the final judgment concerning equitable distribution is
reversed, and the case remanded for the trial court to reassess equitable distribution
and make the requisite factual findings pursuant to section 61.075. See Ortiz, 45 Fla.
L. Weekly D1929, at *1 n.1 (reversing and remanding equitable distribution scheme
because it “does not contain the requisite statutory findings pursuant to Section
61.075” and noting “[t]his type of error . . . is fundamental and is reviewable where
the error is apparent on the face of the final judgment”); Rodriguez v. Rodriguez,
(j) Any other factors necessary to do equity and justice between the
parties.
5
994 So. 2d 1157, 1160 (Fla. 3d DCA 2008) (“The distribution of marital assets and
liabilities must be supported by ‘factual findings in the judgment or order based on
competent substantial evidence with reference to the factors enumerated in [section
61.075(1)].’”) (quoting § 61.075(3), Fla. Stat.).
When reassessing these matters, the trial court is directed to expressly resolve
the issue of whether the former husband’s disability insurance payments should be
treated as a marital asset subject to equitable distribution or as a stream of income
for alimony, a matter the final judgment leaves unresolved. 3
b. Alimony
3
Section 61.046(8), Florida Statutes, defines “income” as “any form of payment to
an individual, regardless of source, including . . . disability benefits . . . .” Further,
disability benefits paid for loss of future wages are the separate property of the
injured spouse, thus not subject to equitable distribution as a marital asset. See Kay
v. Kay,
988 So. 2d 1273, 1275 (Fla. 5th DCA 2008) (husband’s “disability benefits
will constitute payment for future lost wages based on his inability to work,” and
thus, “the disability policy was a non-marital asset and not subject to equitable
distribution”); Gibbons v. Gibbons,
10 So. 3d 127, 132 (Fla. 2d DCA 2009)
(“Compensation payable for future lost earnings is the separate property of the
injured or disabled spouse. Thus, to the extent that benefits payable under a private
disability policy represent a substitute for future lost income, such benefits are the
separate property of the disabled spouse. Accordingly, such disability benefits are
not a marital asset and are not subject to equitable distribution.” (internal citations
omitted)). Nevertheless, the disability payments may be considered for alimony
purposes. Freeman v. Freeman,
468 So. 2d 326, 328 (Fla. 5th DCA 1985) (disability
insurance benefits not subject to equitable distribution but may be considered for
spousal support).
6
Next, the former husband notes several errors in the judgment regarding
alimony. First, the final judgment did not make sufficiently detailed findings of need
and ability to pay. “In determining whether to award alimony . . . , the court shall
first make a specific factual determination as to whether either party has an actual
need for alimony . . . and whether either party has the ability to pay alimony . . . .” §
61.08(2), Fla. Stat. (2019). Here, the final judgment summarily concluded that the
$2,000 per month alimony award “will go towards satisfying the Wife’s current
needs and may restore some modest aspect of her lifestyle to something closer to
that maintained during the marriage.” As to the former husband’s “ability to pay,”
the trial court found he “can afford this payment at this time . . . [because] [h]is
financial affidavit reflects numerous monthly payments that can be readily
eliminated or reduced.”
These conclusory statements are insufficient findings of need and ability to
satisfy section 61.08. See Ortiz, 45 Fla. L. Weekly D1929, at *2 n.2 (stating that
“judgment on appeal does not include the reasoning behind the award of alimony to
the former wife,” and that “[a]lthough the amended final judgment appears to
consider the statutory factors under Section 61.08, it does so in a perfunctory fashion.
As such, the trial court’s reasoning for concluding that the former wife was in need
of alimony is unclear from the face of the judgment or transcripts of the proceedings
filed with this Court”).
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Second, the final judgment gives no guidance as to whether the $2,000 per
month alimony awarded to the former wife is for “bridge-the-gap, rehabilitative,
durational, or permanent in nature or any combination of these forms of alimony.” §
61.08(1), Fla. Stat. The statute requires the trial court to “consider all relevant
factors” enumerated under section 61.08(2)(a)–(j) “in determining the proper type
and amount of alimony” to be awarded. The trial court must expressly identify the
nature and factual basis for the form and duration of the alimony awarded. 4
Third, it is unclear from the final judgment how the amount of alimony was
determined. The alimony award appears to be based on the former husband’s
unadjusted gross income of $16,312. 5 If true, this was error. See Vega v. Vega,
877
So. 2d 882, 883 (Fla. 3d DCA 2004) (noting that former spouse’s argument
4
On a related point, although the trial court correctly determined that the parties’
twenty-year marriage qualified as a long-term marriage in Florida, the trial court
failed to make an express finding that the former wife is entitled to a presumption in
favor of permanent alimony. Gilliland v. Gilliland,
266 So. 3d 866, 868 (Fla. 5th
DCA 2019) (“There is a rebuttable presumption that permanent periodic alimony is
appropriate after a long-term marriage.”) (citation omitted); see also Baron v. Baron,
300 So. 3d 369, 370 (Fla. 1st DCA 2020) (“In the case of a long-term marriage
lasting at least seventeen years, the courts recognize a rebuttable presumption in
favor of awarding permanent alimony.”) (citations omitted). This presumption,
although rebuttable, should be acknowledged and addressed on remand.
5
The former husband’s amended financial affidavit, admitted into evidence at trial,
listed his monthly net income as $10,853 with monthly expenses totaling $20,449,
for a monthly deficit of $9,596. The trial court did not address this evidence and
therefore it is unclear whether this evidence was discounted for some reason or
simply overlooked.
8
that alimony award should be based on gross income rather than net income was
incorrect because “[i]n reality, the case law states that net income is the relevant
benchmark”) (citations omitted); Kingsbury v. Kingsbury,
116 So. 3d 473, 474 (Fla.
1st DCA 2013) (“The ability to pay alimony should be based on the party’s net
income.”) (citations omitted); Tritschler v. Tritschler,
273 So. 3d 1161, 1166–67
(Fla. 2d DCA 2019) (reversing alimony award and remanding for further
proceedings for the trial court to reconsider the alimony award using the parties’
respective net incomes). The final judgment should reflect how the determination
was made.
c. Cross-Appeal on Apportionment of Boat Lien
Lastly, the former wife cross-appeals the trial court’s apportionment of a lien
on the Meridian Home imposed by the City of Miami Beach for unpaid fines due to
the improper mooring of the parties’ boat behind the marital residence. The trial
court found the former husband was “primarily responsible” for the boat lien and
apportioned 75% of the lien to him and 25% to the former wife. At the bench trial,
the former wife’s counsel argued that the lien, which amounted to almost a quarter
of a million dollars, should be the former husband’s sole responsibility because he
disobeyed court orders requiring the boat be kept with a boat broker. However, the
former wife could have sought an alternative remedy prior to trial when the former
husband defied the court’s orders regarding the storage of the boat to avoid the
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staggering fees imposed on both parties. As such, the trial court did not abuse its
discretion in apportioning the boat lien in the manner it did.
Affirmed in part, reversed in part, and remanded for further proceedings.
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