IRINA VICTORIA FERNANDEZ-TRETIAKOVA v. ALBERTO ANTONIO FERNANDEZ ( 2021 )


Menu:
  •         DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    IRINA VICTORIA FERNANDEZ-TRETIAKOVA,
    Appellant,
    v.
    ALBERTO ANTONIO FERNANDEZ,
    Appellee.
    No. 4D19-3217
    [March 17, 2021]
    Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
    Indian River County; Cynthia L. Cox, Judge; L.T. Case No. 31-2017-DR-
    001175.
    Charles M. Auslander, John G. Crabtree, Linda Ann Wells and Brian
    C. Tackenberg of Crabtree & Auslander, LLC, Key Biscayne, for appellant.
    Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton,
    for appellee.
    DAMOORGIAN, J.
    Irina Victoria Fernandez-Tretiakova (“the Wife”) appeals the final
    judgment dissolving her marriage to Alberto Antonio Fernandez
    (“the Husband”). On appeal, the Wife assigns error to the trial court’s
    rulings relating to: (1) enforcement of the parties’ prenuptial agreement;
    (2) the award to the Wife of bridge the gap alimony; (3) equitable
    distribution; (4) shared parental responsibility; (5) denial of the Wife’s
    request for attorney’s fees; and (6) the Wife’s motion to disqualify the judge
    and motion for new trial. We affirm on issues 1, 2, 4, 5 and 6 without
    further discussion. However, we reverse and remand on issue 3, finding
    that the trial court failed to make the requisite factual findings in the final
    judgment to support the equitable distribution of the parties’ marital
    property, as required by section 61.075(3), Florida Statutes (2017). 1
    1  We note that this argument was not raised by the Wife in the lower
    proceedings. However, we find that the trial court’s omission of the requisite
    statutory findings pursuant to section 61.075, Florida Statutes, “is fundamental
    Following a bench trial in this contested dissolution action, the trial
    court unequally distributed the parties’ marital assets and liabilities.
    Specifically, the trial court awarded the Husband a total of $246,095 and
    the Wife a total of $133,781. It appears that in an attempt to equalize
    distribution, the trial court ordered the Husband to pay the Wife $52,257
    which the trial court described as lump sum alimony. However, the trial
    court made offsets to the Wife’s lump sum alimony, which included
    deducting $3,900 for the Wife’s unnecessary vocational assessment and
    $12,093 in damages the Wife caused the Husband to incur from a rental
    property.     After these adjustments, the Wife’s distributions totaled
    $170,045. The trial court made no specific reference to the factors
    enumerated in section 61.075, Florida Statutes, to support the equitable
    distribution plan. This appeal follows.
    Section 61.075(3), Florida Statutes, requires that:
    In any contested dissolution action wherein a stipulation and
    agreement has not been entered and filed, 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).
    § 61.075(3), Fla. Stat. (2017) (emphasis added). 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.’” Richardson v. Knight, 
    197 So. 3d 143
    , 146
    (Fla. 4th DCA 2016) (quoting § 61.075(3), Fla. Stat.); see also Rodriguez v.
    Rodriguez, 
    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)].’” (alteration in original)
    (quoting § 61.075(3), Fla. Stat.)).
    Here, the only reference to section 61.075(1), Florida Statutes, in the
    final judgment was where the trial court stated:
    [t]he Court finds that the Wife has established a need for and
    that the Husband has the present ability to pay bridge the gap
    [error] and is reviewable where the error is apparent on the face of the final
    judgment.” Ortiz v. Ortiz, 
    306 So. 3d 1081
    , 1082 n.1 (Fla. 3d DCA 2020).
    2
    alimony for a period of two years after consideration of all
    relevant factors pursuant to § 61.075(1) and 61.08(1), Florida
    Statutes (2018). . . .
    The final judgment then discussed the factors laid out in section
    61.08(2)(a)-(j), Florida Statutes, regarding alimony. There was no further
    mention of the factors enumerated in section 61.075(1), Florida Statutes.
    Moreover, the parties did not agree to an equitable distribution plan.
    Although the record reflects the trial court did take a substantial amount
    of evidence and made reference to facts which could support an unequal
    distribution of the marital assets and liabilities, it did not make specific
    findings referencing the ten factors enumerated in section 61.075(1),
    Florida Statutes.
    Accordingly, we are compelled to reverse the equitable distribution plan
    and remand for the trial court to make the required factual findings in the
    final judgment with reference to the factors enumerated in section
    61.075(1), Florida Statutes. See Callwood v. Callwood, 
    221 So. 3d 1198
    ,
    1202 (Fla. 4th DCA 2017) (holding that factual findings with reference to
    the factors enumerated in section 61.075(1) were required by section
    61.075(3) in a contested dissolution action in which “a stipulation and
    agreement has not been entered and filed” (quoting section 61.075(3),
    Florida Statutes (2016))). In doing so, the trial court is not required to take
    any additional evidence or conduct further proceedings if the record before
    it is sufficient.
    Affirmed in part, reversed in part and remanded.
    WARNER and FORST, JJ., concur.
    *        *         *
    Not final until disposition of timely filed motion for rehearing.
    3
    

Document Info

Docket Number: 19-3217

Filed Date: 3/17/2021

Precedential Status: Precedential

Modified Date: 3/17/2021