Third District Court of Appeal
State of Florida
Opinion filed August 2, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-1914
Lower Tribunal No. 19-23517
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Irving D. Rivera,
Appellant,
vs.
Angelica Marie Rivera,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Stacy D.
Glick, Judge.
Fournier Law, PLLC, and Gena D. Fournier (Tallahassee), for
appellant.
No appearance, for appellee.
Before HENDON, GORDO and LOBREE, JJ.
HENDON, J.
Irving D. Rivera (“Husband”) appeals from a final judgment of
dissolution of marriage and equitable distribution of marital assets. We
reverse in part and remand for recalculation of equitable distribution.
Facts
The parties were married in 2016, and separated in 2018. They have
a minor child, born in 2017. Angelica Marie Rivera (“Wife”) filed for
dissolution of marriage in October 2019. Prior to, or during the pendency of
the dissolution action, the Husband inherited a house from his
grandmother, who died in 2013, but he did not receive control over the
house until the estate closed in 2018. The Wife was not identified on the
deed, never resided in the house, did not contribute to the house
maintenance, and there is no evidence in the record that marital funds were
used to pay down the mortgage.
The Husband moved into the house, and because he was out of
work, the house went into foreclosure. The record shows that during the
pendency of the dissolution proceedings, the Husband was able to sell the
house, netting about $140,000. There is no evidence in the record that the
Husband commingled those funds with any marital funds. The Husband
then used the proceeds of the sale to purchase a property for his mother
and placed it in her name. He also purchased a used vehicle worth $12,500
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for his own use, after the Wife junked the Husband’s vehicle during the
pendency of the dissolution. The Husband did not declare the proceeds
from the sale of the inherited property in any financial disclosure statement
because he believed that inherited property was a non-marital asset.
The Wife argued that she is entitled to half of the sale proceeds
because the Husband sold the property during the pendency of the
dissolution, the sale was a violation of the status quo order, and the court
should sanction the Husband by converting a non-marital asset into a
marital asset subject to equitable distribution.
At the dissolution hearing, the trial court heard testimony from both
parties. At the end of the hearing, the trial court agreed that the inherited
property was non-marital, but concluded that once the Husband sold the
property, those proceeds and any assets purchased with those proceeds
became marital property subject to equitable distribution.1
In making its equitable distribution findings, the trial court – among
other findings – apportioned fifty percent of the proceeds from the inherited
house to the Wife as a marital asset, as well as fifty percent of the value of
1
The trial court also concluded that, by putting the property he purchased
for his mother in his mother’s name, the Husband was trying to evade
equitable distribution of the proceeds of the inherited house sale. We find
no substantial or competent evidence for this finding in the record.
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the used car purchased with the house sale proceeds. The Husband filed a
timely motion for rehearing alleging error in the trial court’s classification of
the value of the real property and vehicle as marital assets. The trial court
denied the motion, and the Husband appeals from the Final Judgment.
Standard of Review
We review de novo a trial court's legal conclusion that an asset is
marital or non-marital. Smith v. Smith,
971 So. 2d 191, 194 (Fla. 1st DCA
2007); Dravis v. Dravis,
170 So. 3d 849, 852 (Fla. 2d DCA 2015) (reviewing
de novo a trial court's characterization of an asset as marital or non-
marital). “The standard of review of a trial court's determination of equitable
distribution is abuse of discretion.” Viscito v. Viscito,
214 So. 3d 736, 737
(Fla. 3d DCA 2017) (citing Bardowell v. Bardowell,
975 So. 2d 628, 629
(Fla. 4th DCA 2008)).
Analysis
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); Rodriguez v. Rodriguez,
994 So. 2d 1157,
1160 (Fla. 3d DCA 2008) (“The distribution of marital assets and liabilities
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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.)).
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). Non-marital 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). Distefano v. Distefano,
253 So. 3d 1178,
1180 (Fla. 2d DCA 2018). Relevant to this appeal, non-marital assets also
include “assets acquired separately by either party by noninterspousal gift,
bequest, devise or descent.” § 61.075(5)(b)(2), Fla. Stat. (2004) (emphasis
added).
In this case, the property that the Husband inherited was non-marital.
The trial court erroneously concluded that once the Husband sold the non-
marital property during the marriage or during the pendency of the
dissolution, those proceeds became marital property subject to equitable
distribution, relying on section 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.” Applying the same reasoning, the trial
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court concluded that the used Toyota Camry that the Husband purchased
with proceeds from sale of the non-marital house became a marital asset
because those proceeds were acquired by him during the marriage, while
the dissolution was pending, and in violation of the standing status quo
order.
The general rule of when non-marital assets may become marital
assets was laid out in Dravis v. Dravis,
170 So. 3d 849, 852 (Fla. 2d DCA
2015):
Non-marital assets may lose their non-marital character and
become marital assets where, as here, they have been
commingled with marital assets. Abdnour v. Abdnour,
19 So. 3d
357, 364 (Fla. 2d DCA 2009). This is especially true with
respect to money because “[m]oney is fungible, and once
commingled it loses its separate character.” Pfrengle v.
Pfrengle,
976 So. 2d 1134, 1136 (Fla. 2d DCA 2008); see also
Belmont v. Belmont,
761 So. 2d 406, 408 (Fla. 2d DCA 2000)
(“Money loses its non-marital character when it is commingled
with marital money....”).
(Emphasis added). Applying that principle, in Pinder v. Pinder,
750 So. 2d
651, 653 (Fla. 2d DCA 1999), the court stated,
The undisputed evidence showed that this money came from
an inheritance Mrs. Pinder received from her aunt. Section
61.075(5)(b)2. states that non-marital assets include those
acquired separately by either party by bequest, devise or
descent. To the extent that Mrs. Pinder withdrew money, which
was then used for marital purposes, the withdrawn money
became a marital asset that has been depleted. The remaining
money, however, has never been commingled and retains its
character as a non-marital asset.
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(emphasis added). See also Kittinger v. Kittinger,
582 So. 2d 139 (Fla. 5th
DCA 1991) (holding husband's 50% interest in real property inherited
during marriage was not subject to equitable distribution as it was a non-
marital asset); Distefano, 253 So. 3d at 1180 (finding that the proceeds
from a house the wife purchased prior to the marriage, but sold during the
marriage, became marital property because the former wife commingled
the sale proceeds into accounts that were used to pay expenses incurred
by her and the former husband during the marriage, transforming what was
once her personal bank account into a marital asset).
Here, the house the Husband inherited from his grandmother did not
lose its non-marital status when he sold it, and the proceeds from the sale
of the non-marital property remained non-marital as there is no evidence in
the record that the funds were commingled in any marital account. Further,
the assets the Husband purchased with those non-marital funds are also
non-marital, as those assets were “acquired in exchange for an asset from
a bequest or a devise.” § 61.075(6)(b) 2., Fla. Stat. (2020). Therefore, the
assets obtained from the sale of the inherited property should also have
been classified as non-marital. Bell v. Bell,
68 So. 3d 321, 329 (Fla. 4th
DCA 2011).
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Based on our de novo review of the record, we conclude that the trial
court erred by classifying the assets obtained from selling the inherited
property as marital. As such, the trial court abused its discretion by
equitably distributing proceeds from the sale of the inherited house and the
value of any purchases made with those funds.
Id.
Accordingly, we reverse, in part, the final judgment of dissolution of
marriage relating to the equitable distribution of marital assets, and remand
with instructions for the trial court to recalculate the equitable distribution of
the parties’ assets consistent with this opinion.
Affirmed in part, reversed in part, and remanded for further
proceedings.
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