CALVIN CALLWOOD v. TOLEATHA CALLWOOD

221 So. 3d 1198
CourtDistrict Court of Appeal of Florida
DecidedJuly 5, 2017
Docket4D16-1595
StatusPublished
Cited by11 cases

This text of 221 So. 3d 1198 (CALVIN CALLWOOD v. TOLEATHA CALLWOOD) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CALVIN CALLWOOD v. TOLEATHA CALLWOOD, 221 So. 3d 1198 (Fla. Ct. App. 2017).

Opinion

Taylor, J.

The former husband appeals a final judgment of dissolution of marriage. We affirm on the time-sharing issue without further comment. However, we reverse the equitable distribution plan because the trial court failed to make the required findings regarding the factors enumerated in section 61.075(1), Florida Statutes (2016). We also reverse the trial court’s determination of the husband’s income for child support purposes.

Equitable Distribution

Under the trial court’s equitable distribution schedule, the net equitable distribution to the wife was $86,613, and the net equitable distribution to the husband was $86,614. Additionally, each party was entitled to receive 50% of the proceeds of the sale of the marital home, which had about $400,000 in equity.

The trial court also distributed the parties’ entire interest in a property in the U.S. Virgin Islands called “Estate Peter-borg,” along with the liens and debt thereon, to the wife. The husband hired a contractor to build a single-family dwelling on the property, but construction is not complete.

The husband testified that the Estate Peterborg property was worth around $565,000, a figure he derived from the latest value provided by the tax assessor. However, the husband admitted that the value of the property would go up substantially as soon as an occupancy permit is issued.

The wife also testified the Estate Peter-borg property was currently worth about $500,000 without an occupancy permit, which was similar to the tax assessor’s valuation. However, the wife testified that *1201 once an occupancy permit is issued, the property “stands to be worth between three to five million dollars.”

The trial court found that there was no credible evidence as to the value of Estate Peterborg. It nonetheless relied upon the tax assessor’s valuation and found that Estate Peterborg was worth $565,300, less the outstanding liens totaling $635,000, for a total negative value of $69,700. However, the trial court did not actually factor the value of Estate Peterborg into the equitable distribution schedule, as the liability of Estate Peterborg’s negative value of $69,700 is not shown as being distributed to either party.

On appeal, the husband argues that the trial court erred in awarding the Estate Peterborg to the wife without making the findings of fact required by section 61.075, Florida Statutes (2016). We agree.

The standard of review for a trial court’s equitable distribution of marital assets and liabilities is abuse of discretion. Pierre v. Pierre, 185 So.3d 1264, 1265 (Fla. 4th DCA 2016). However, a trial court’s failure to consider mandatory statutory factors is error as a matter of law. Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003).

Section 61.075(1), Florida Statutes, “lists ten separate factors for the trial court to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal.” Richardson v. Knight, 197 So.3d 143, 146 (Fla. 4th DCA 2016).

Section 61.075(3), in turn, requires the trial court to make specific findings regarding equitable distribution in any contested dissolution action where there is no stipulation between the parties:

(3) 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. (2016) (emphasis added).

The factors listed in section 61.075(1) “should be used in any contested case to justify any equitable distribution of marital assets, fifty-fifty or otherwise.” McMonagle v. McMonagle, 617 So.2d 373, 373-74 (Fla. 5th DCA 1993).

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, 197 So.3d at 146 (citation and internal quotation marks omitted). Although compliance with section 61.075(3)’s requirements of written findings of fact “is not necessary when the parties have reached a valid agreement regarding equitable distribution, these requirements must be met when there is no such agreement and a distribution scheme is ordered by the court.” Id. (citation omitted).

Here, regardless of whether the overall equitable distribution was equal or unequal, 1 the trial court erred in entering an equitable distribution plan that was not supported by factual findings in the final judgment with reference to the factors *1202 enumerated in section 61.075(1). Such findings were required by section 61.075(3) because this was a contested' dissolution action in which “a stipulation and agreement has not been entered and filed.” .

We decline to reach the husband’s argument that a proper application of the factors under section 61.075(1) would favor an equitable distribution of Estate Peterborg to him or, in the alternative, a distribution of the property to both parties as tenants in common.

Based on the foregoing, we reverse and remand for the trial court to make the requisite findings using the factors outlined in section 61.075(1).

The Husband’s Income

After the husband’s release from prison, the husband began working from home as a dispatcher for a transportation company owned by his girlfriend. According to his most recent financial affidavit, the husband had a net monthly income of $2,103. The husband reported that his proposed/estimated monthly expenses would be $4,749, and claimed a monthly deficit of $2,646.

On the issue of the husband’s income, the trial court found that the husband receives a biweekly salary of $708.04 and rental income of $850 per month. Due to the husband’s criminal conviction and incarceration, the trial court found that the husband’s job prospects were somewhat limited.

The trial court, however, relied on the monthly defipit the husband claimed on his financial affidavit as the basis for finding that the husband was receiving additional income from his- family, his girlfriend, or some other undisclosed source. Specifically, the trial court found that the husband’s “expenses are being paid from an undisclosed source on a regular basis, at least to the extent of the claimed deficit.” Accordingly, the trial court found that .‘the husband “earns or is capable of earning at least $4749 net per month.”

On appeal, the husband argues that the trial court’s determination of his income was based on a misinterpretation of his financial affidavit and was not supported by competent substantial evidence. We agree.

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Cite This Page — Counsel Stack

Bluebook (online)
221 So. 3d 1198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/calvin-callwood-v-toleatha-callwood-fladistctapp-2017.