ANTHONY v. DISTEFANO v. ANDREA L. DISTEFANO

253 So. 3d 1178

• Court: District Court of Appeal of Florida
• Decided: August 15, 2018
• Docket: 17-0967
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ANTHONY V. DISTEFANO, ) ) Appellant, ) ) v. ) Case No. 2D17-967 ) ANDREA L. DISTEFANO, ) ) Appellee. ) )

Opinion filed August 15, 2018.

Appeal from the Circuit Court for Hillsborough County; Martha J. Cook, Judge.

Paul J. Phipps of the Law Office of Amber Boles, P.A., Tampa (withdrew after briefing); Alexis Fields of Kopelowitz, Ostrow, Ferguson, Weiselberg, & Gilbert, Ft. Lauderdale (substituted as counsel of record), for Appellant.

Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellee.

BADALAMENTI, Judge.

Anthony Distefano (former husband) seeks review of a final judgment

dissolving his marriage to Andrea Distefano (former wife) entered after a bench trial.

After careful review, we reverse the final judgment to the extent it classifies the family home and a Toyota Camry purchased during the marriage as the former wife's

nonmarital property.

Approximately one month after the couple married, the former wife sold a

home she had purchased prior to the marriage (the Hartnett home). The $62,232.23

profit the former wife received from the sale of the Hartnett home was deposited into

personal checking and savings accounts she, as sole owner, held at Suncoast Federal

Credit Union. The former wife testified that she used her Suncoast personal checking

and savings accounts both before and during her marriage to the former husband. She

noted, "I've always, I mean, I've always written bills from, from these accounts." She

explained that she had "written bills," like the mortgage, car loans, and insurance for

herself and the former husband, from the Suncoast personal bank accounts. She

further testified that paychecks she earned during the marriage were deposited into her

personal Suncoast checking account. Approximately five months after the couple

married, the former wife utilized funds from her Suncoast checking and savings

accounts to make a down payment on what would become the home where she, the

former husband, and their infant child would reside (the Clendenning home). She

explained that the Clendenning home, which was titled in her name only and secured by

a mortgage also taken out by her, was not intended to be a gift to the former husband.

Also during the marriage, the former wife purchased a 2014 Toyota

Camry. To partially fund that purchase, the former wife both traded in a vehicle that she

owned prior to the marriage and used funds from the Suncoast checking account. She

secured a car loan for the difference owed for that purchase.

-2- In its final judgment, the trial court classified the Clendenning home as the

former wife's nonmarital asset because a portion of the funds with which the home was

purchased could be traced to nonmarital property, namely, the proceeds from the sale

of the Hartnett home. Similarly, the trial court classified the Toyota Camry as nonmarital

property because a portion of the funds used to purchase it could be traced to proceeds

from the trade-in value of the former wife's premarital vehicle. As will be explained, the

trial court's classification of both the Clendenning home and the Toyota Camry as

nonmarital property was error.

"We review a trial court's characterization of an asset as marital or

nonmarital de novo and any factual findings necessary to make this legal conclusion for

competent, substantial evidence." Dravis v. Dravis, 170 So. 3d 849, 852 (Fla. 2d DCA

2015) (citing Tradler v. Tradler, 100 So. 3d 735, 738 (Fla. 2d DCA 2012)). In section

61.075, Florida Statutes (2015), "[t]he legislature has set forth a statutory scheme to

guide the trial court's equitable distribution of assets upon dissolution of a marriage."

Nelson v. Nelson, 206 So. 3d 818, 819 (Fla. 2d DCA 2016). 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). Nonmarital

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).

As an initial matter, the trial court properly classified the former wife's

personal Suncoast checking and savings accounts as marital assets. This is because,

although titled only in the former wife's name, it is undisputed that the former wife

-3- commingled funds she acquired prior to the marriage with funds she acquired during the

marriage in her Suncoast checking and savings accounts. See Pfrengle v. Pfrengle,

976 So. 2d 1134, 1136 (Fla. 2d DCA 2008).

With this in mind, we now explain why we agree with the former husband's

contention on appeal that the trial court erred by classifying the Clendenning home as a

nonmarital asset. First, it is undisputed that the Clendenning home was acquired during

the marriage individually by the former wife. It thus falls squarely within the meaning of

marital assets as set forth by the plain and ordinary language of the equitable

distribution statute. See § 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") (emphasis added). Second, it is undisputed from the record that the former wife

utilized marital funds from her personal Suncoast checking and savings accounts to

place a down payment on the home, to make mortgage payments for that home, to

make car payments for both herself and her former husband, and to cover other

expenses incurred during their marriage. Once the former wife commingled the sale

proceeds from the Hartnett home with the paychecks she earned during the marriage

into her personal Suncoast accounts, all the funds in those accounts became marital

assets. See Pfrengle, 976 So. 2d at 1136; see also Dravis, 170 So. 3d at 852

("Nonmarital assets may lose their nonmarital character and become marital assets

where, as here, they have been commingled with marital assets." (citing Abdnour v.

Abdnour, 19 So. 3d 357, 364 (Fla. 2d DCA 2009))); Steiner v. Steiner, 746 So. 2d 1149,

1151 (Fla. 2d DCA 1999) ("Once the funds were commingled and used for joint

expenses, they lost their separate character and became untraceable."). This, in turn,

-4- made the Clendenning home a marital asset subject to equitable distribution pursuant to

section 61.075(1).

In Pfrengle, we reversed the trial court's classification of several real

properties acquired by the former husband during the marriage as nonmarital property.

976 So. 2d at 1136. The trial court reasoned that because the former husband made

down payments on new properties utilizing the profits he received from the sale of

properties he owned prior to entering the marriage, the new properties were not marital

property. Id. On appeal, we rejected the former husband's argument that because the

sum total of the properties he purchased was less than the aggregate profits he

received from the sale of his premarital properties, they should be classified as

nonmarital property. We reasoned that although the former husband maintained

separate accounts through which he purchased the properties, it was undisputed that

he transferred money to and from all of the accounts, including his personal checking

account, where he had deposited sales commissions he earned during the marriage.

Id. In Pfrengle, we expressed the importance of maintaining nonmarital and marital

assets separately, especially money held in bank accounts. Id. ("Money is fungible,

and once commingled it loses its separate character." (citing Belmont v. Belmont, 761

So. 2d 406, 408 (Fla. 2d DCA 2000))).

We explained that once the former husband commingled both money from

the sale of his premarital properties with commissions he earned as a sales

representative during the marriage in his personal checking account, it made all the

money held in the personal checking account a marital asset. Id. And because the

down payments for the properties purchased during the marriage were made, in part,

-5- from the former husband's personal checking account containing marital assets, those

properties also became marital assets. Id.

Here, like the former husband in Pfrengle, the former wife owned real

estate prior to entering the marriage, sold that real estate during the marriage,

deposited the profit of that sale into her personal bank accounts, and then utilized that

profit to make a down payment on new real estate. Also like the former husband in

Pfrengle, the former wife's employer deposited the income she earned from working

during the marriage into the same personal bank account she had deposited the profit

from the sale of her home. Based on the former wife's own testimony, her personal

Suncoast checking and savings accounts were used to make a down payment on the

Clendenning home and to pay expenses incurred by her and the former husband during

the marriage, like their car loans, insurance, and mortgage.

As Pfrengle instructs us, the commingling of the money the former wife

earned from the sale of the Hartnett home with income she earned during the marriage

transformed the very character of what once were her personal bank accounts into

marital assets.1 See id. (holding that the trial court erred in classifying certain properties

as nonmarital assets because the properties at issue were purchased during the

marriage using funds taken from an account containing commingled marital funds and

therefore the properties purchased became marital assets as a matter of law); cf.

Steiner, 746 So. 2d at 1151 (concluding that because the former husband's bank

account became marital when he deposited his earnings into that account, principal

1It is noteworthy that our conclusion is further supported by the joint equitable worksheet attached to the final judgment here, which classifies the Suncoast checking and savings accounts as marital assets.

-6- mortgage reductions paid out of that account also became marital assets). In sum, the

Clendenning home is a marital asset because it was acquired during the marriage with

commingled funds from the former wife's personal checking and savings accounts.

Next, the former husband argues that the trial court further erred by

classifying the 2014 Toyota Camry as the former wife's nonmarital asset. For the same

reasons we reverse the classification of the Clendenning home as a nonmarital asset,

we reverse this classification. Again, the Toyota Camry is a marital asset pursuant to

section 61.075(6)(a)(1)(a) because it was acquired by the former wife during the

marriage, in part, with commingled money held in the former wife's Suncoast checking

account containing marital funds. See Dravis, 170 So. 3d at 852. Because the former

wife used marital funds to purchase the Toyota Camry, it thus follows that the Toyota

Camry is also a marital asset subject to equitable distribution. See Pfrengle, 976 So. 2d

at 1136; see also Struble v. Struble, 787 So. 2d 48, 50 (Fla. 2d DCA 2001) (concluding

that the trial court erred in classifying the former wife's 1995 Toyota as her separate

nonmarital asset because the vehicle was purchased by the former wife during the

marriage using funds from a bank account that contained marital money). Accordingly,

we reverse the final judgment to the extent it classifies the Toyota Camry as the former

wife's nonmarital asset.

As a final matter, the former husband argues, and the former wife laudably

concedes, that the final judgment contains an internal inconsistency as it relates to the

former husband's responsibility to repay in full a $10,000 loan the former wife made to

Tonand Enterprises, LLC, an entity the parties formed together prior to their marriage.

In section G of the final judgment, the trial court determined that the former husband is

-7- responsible for 100% of the debt incurred by Tonand Enterprises, LLC. However, in

section H, the trial court determined that the former husband and former wife are each

50% responsible for the $10,000 loan the former wife made to Tonand Enterprises,

LLC. The joint equitable distribution worksheet reflects that each party is responsible

for paying $5000. Based on the internal inconsistency created by sections G and H of

the final judgment, we reverse and remand for the trial court to correct this

inconsistency in its judgment. See Suk v. Chang, 189 So. 3d 224, 226 (Fla. 2d DCA

2016) ("[D]issolution judgments that contain internal inconsistencies must be reversed

so the inconsistencies can be corrected.").

In sum, we reverse the final judgment's classification of the Clendenning

home and the Toyota Camry as nonmarital assets. We remand to the trial court with

instructions to classify them as marital assets and revise the equitable distribution

scheme accordingly. See Pfrengle, 976 So. 2d at 1136. In so reversing, we express no

opinion as to the trial court's redistribution, in its discretion, of marital assets in light of

our opinion. We also reverse and remand to the trial court with instructions to correct

the final judgment as it relates to the internal inconsistency created by sections G and H

of the final judgment.2 See Suk, 189 So. 3d at 226.

Affirmed in part; reversed in part; remanded with instructions.

LaROSE, C.J., and BLACK, J., Concur.

2Weaffirm without comment the remaining issues raised by the former husband in this appeal.

-8-