William E. Weaver v. Lori Lynn Weaver

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
WILLIAM E. WEAVER,
Appellant,
v.
LORI LYNN WEAVER,
Appellee.
No. 4D13-4275
[August 19, 2015]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith, Judge; L.T. Case No. 502012DR009808XX.
Paul M. Herman, Palm Beach Gardens, for appellant.
Jeffrey M. Kirsch of Jeffrey M. Kirsch, P.A., Stuart, for appellee.
WARNER, J.
The former husband appeals a final judgment of dissolution,
contending that the trial court’s equitable distribution of real property was
flawed. He argues that the court erred in awarding the former wife a
$40,000 interest in the marital home which the former husband acquired
prior to marriage. Because the evidence did not support the court’s finding
that the wife invested $40,000 in the home, the home was not a marital
asset, and did not increase in value during the marriage, the court erred
requiring the husband to pay the wife any interest in the home. Likewise,
as to lots that the parties owned in Georgia, the trial court failed to make
the appropriate factual determinations to equitably distribute the
proceeds, if any, from those properties. We thus reverse for further
proceedings as to the real property, but we affirm all other issues.
The parties were married for nine years at the time the husband filed
for divorce. Long prior to the marriage, the husband had purchased a
home in his name alone. However, after the marriage, he refinanced
mortgages on the property, and the wife signed the promissory note and
mortgages. At the time of the final hearing, the mortgages totaled around
$136,000. While the house was worth around $300,000 when the parties
married, due to the recession the value had fallen. A property appraiser
valued the home at $181,973; the husband claimed it was worth around
$160,000, and the wife did not testify to its value. The evidence in the
light most favorable to the wife showed that the wife and husband pooled
their incomes and paid the mortgage and other household expenses from
their pooled funds. The wife sold her own home prior to the marriage and
netted $40,000, but there was no testimony that the $40,000 went into
the home. Instead, she spent it on their wedding, honeymoon, a boat, and
a motor home. The wife was awarded the boat and the motor home in the
final judgment.
In addition, during the marriage the parties acquired two properties in
their joint names in Georgia. One property in Elberton consisted of nine
acres which was purchased for $34,000 in 2005. It has not increased in
value but has no mortgage on it. The other property at Sandersville
consisted of 66 acres with a cabin, purchased in 2012 for $145,000 with
$80,000 from the husband’s retirement account. The husband testified
that the property has a current value of $116,000 with a mortgage of
$70,000. The wife provided no estimate of the value of the property.
In the final judgment, the court ruled that the husband had owned the
marital home in Loxahatchee prior to the marriage but that the wife had
invested $40,000 from the sale of her prior home into the marital home.
She also had signed the mortgage and second mortgage as well as the note
on the second mortgage. The court found the parties owned the Elberton
property as tenants by the entireties, and they agreed that the value of it
was $32,000. It determined the parties owned as tenants by the entireties
the Sandersville property, which it found had approximately an $80,000
equity. The court ordered the husband to pay the wife $40,000 for her
interest in the marital home. The wife was awarded the Elberton lots. The
court required the husband to refinance the Sandersville property to pay
the wife $50,000 for her interest in that property. The court divided the
remaining property and made other provisions for the wife, including
durational alimony. From this order, the husband appeals.
The husband contends that the court erred in awarding the wife a
$40,000 interest in the marital home, which was the husband’s property
prior to his marriage to the wife and had not increased in value during the
marriage. We agree that the court’s award was erroneous. First, there is
no competent substantial evidence that the wife invested $40,000 in the
home. Second, no evidence supported any increase or enhancement of
value of the asset during the marriage.
While the court found that the wife had invested the $40,000 she
acquired from the sale of her own home in the marital residence, that
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finding is contrary to the evidence in the case. The wife spent her $40,000
on other items. There was no testimony that any of that money was
invested in the home. Instead, the wife testified that they pooled their
incomes in paying for the mortgages and expenses of the home.
Second, the sole evidence of the value showed that the value of the
home decreased during the marriage. While the parties conflicted on the
present value of the home, the evidence was uncontradicted that the value
of the property owned solely by the husband at the beginning of the
marriage was significantly higher than its current value. Thus, there was
no enhancement of value by their contributions during the marriage.
Section 61.075(1)(g), Florida Statutes (2013), provides that in setting
aside those assets which are marital and non-marital and distributing the
assets of the marriage, the court should consider: “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.” (Emphasis added). Here,
the property was acquired and owned by the husband prior to the
marriage, which he kept in his name and was his sole, non-marital
property. See Mitchell v. Mitchell, 841 So. 2d 564, 566-67 (Fla. 2d DCA
2003). Although the mortgage was reduced some during the marriage due
to the expenditure of pooled resources, the actual value of the property
was not enhanced during the marriage due to the effect of market forces.
The value decreased. Therefore, there was no enhancement of the value
and thus no appreciation due to the expenditure of marital funds. It was
error for the court to award the wife any interest in this non-marital asset.
As to the Georgia properties, the court erred in determining that the
Sandersville property had an equity of $80,000. Although the property
originally was purchased for $145,000, the evidence was not contradicted
by the wife that the current value was considerably less. The husband
testified that the equity in the property was only $25,000. The court failed
to make a clear finding supported by competent substantial evidence of
the value of the property as is required by section 61.075(3), Florida
Statutes (2013).
Moreover, section 61.075(1), Florida Statutes (2013), provides division
of marital assets shall be equal unless there is a reason for unequal
distribution. The court awarded the wife more than 50% of the alleged
equity in the Sandersville property and 100% of the equity in the Elberton
property without any explanation of why this unequal division of property
was justified. Although other personal property was distributed, we
cannot tell from the final judgment whether those assets made up for the
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substantially unequal division of the Georgia properties. Thus, the court
erred in failing to determine both the value of the Sandersville property
and in failing to provide justification for what appears to be an unequal
distribution of marital properties.
Because of the foregoing errors in dividing the real property of the
parties, we reverse and remand for further proceedings to equitably
distribute the marital assets of the parties. We affirm the remaining issue
regarding durational alimony.
Affirmed in part, reversed in part and remanded.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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