Cleary v. Cleary

872 So. 2d 299, 2004 WL 784645
CourtDistrict Court of Appeal of Florida
DecidedApril 14, 2004
Docket2D02-3985
StatusPublished
Cited by16 cases

This text of 872 So. 2d 299 (Cleary v. Cleary) 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
Cleary v. Cleary, 872 So. 2d 299, 2004 WL 784645 (Fla. Ct. App. 2004).

Opinion

872 So.2d 299 (2004)

Robert W. CLEARY, Appellant/Cross-Appellee,
v.
Maria Tereza De Castelo Branco Ferreira CLEARY, a/k/a M. Tereza Cleary, Appellee/Cross-Appellant.

No. 2D02-3985.

District Court of Appeal of Florida, Second District.

April 14, 2004.

*301 Mary A. Swayze and Maury R. Olicker of Akerman Senterfitt, Miami, and Sarah Dennis of Akerman Senterfitt, Tampa, for Appellant/Cross-Appellee.

Arnold D. Levine and Robert H. Mackenzie of Levine, Hirsch, Segall, Mackenzie & Friedsam, P.A., Tampa, for Appellee/Cross-Appellant.

WALLACE, Judge.

Robert W. Cleary (the Husband) appeals the amended final judgment dissolving his marriage to M. Tereza Cleary (the Wife), asserting that the trial court abused its discretion in its equitable distribution of the parties' marital property and its determination of child custody, child support, alimony, and attorney's fees. On her cross-appeal, the Wife argues that the trial court erred by imputing future income to her as part of its determination of the amount of alimony awarded to her. We affirm the judgment in part and reverse in part. On remand, the trial court shall adjust the award of retroactive alimony and the plan of equitable distribution in a manner consistent with this opinion.

Child Custody

The Husband argues that the trial court erred in awarding primary residential responsibility for the parties' two children to the Wife because the evidence at trial demonstrated that the Wife is a less fit parent than the Husband. It is established law that a trial court has broad discretion in child custody matters. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980). Despite a conflict in the evidence, a trial court's custody decision will not be disturbed unless there is no substantial, competent evidence to support that decision. Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998).

The Husband has not met this burden. The record reflects that the trial court considered the best interests of the children as required under section 61.13, Florida Statutes (1997). Although there is a conflict in the evidence as to which party is the more fit parent, competent evidence supports the trial court's finding in favor of the Wife. Because the trial court's finding is supported by competent, substantial evidence, the trial court did not abuse its discretion in awarding primary residential responsibility for the children to the Wife. Therefore, we affirm the custody award.

The Equitable Distribution

In the final judgment of dissolution of marriage, the trial court found that the parties' 1996 and 1997 federal income tax overpayments were marital assets subject to equitable distribution and that these assets totaled $310,577. After concluding that the Husband received all of the benefit of these assets, the court ordered him to pay to the Wife the sum of $155,288.50 plus interest, an amount equal to one-half of the total overpayments. On appeal, the Husband argues that the trial court incorrectly calculated the total amount of the overpayments and that these were not assets subject to equitable distribution because they had been spent by the parties during the course of the marital litigation that spanned five years.

When a trial court makes an equitable distribution award, it must provide specific factual findings that identify and distinguish the marital assets from the non-marital assets. See § 61.075(3) (requiring *302 that "any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence"); see also Staton v. Staton, 710 So.2d 744 (Fla. 2d DCA 1998). However, before a trial court can make these determinations, it must establish a cut-off date, in accordance with section 61.075(6), for determining whether assets and liabilities should be classified as marital. See § 61.075(6) (stating that the cut-off date "is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage"). Moreover, a trial court must also select a valuation date for the marital assets pursuant to section 61.075(6), which provides that the date for determining the value of the marital assets "is the date or dates as the judge determines is just and equitable under the circumstances."

In the present case, the trial court did not select a cut-off date to determine which of the parties' assets should be classified as marital, nor did it select a valuation date for determining the value of the marital assets. Because the trial court did not establish these dates, this court is unable to review the trial court's determination that the federal income tax overpayments are marital assets or the value assigned to these assets. Nevertheless, we note that the Husband's argument that the trial court miscalculated the aggregate amount of the two income tax overpayments appears to have merit.

In reaching the conclusion that the federal income tax overpayments totaled $310,577, the trial court based its calculation on evidence submitted by the Wife that there was a 1996 income tax overpayment of $202,782 and a 1997 income tax overpayment of $107,795. However, this evidence overlooks the fact that a portion of the parties' overpayment for the 1996 tax year, to wit $139,720, was applied to the parties' 1997 income tax obligation. After considering the application of $139,720 to the parties' 1997 income tax obligation, the largest amount of the tax overpayments that could have been a marital asset was $180,843, comprised of a $65,118 cash refund from the 1996 overpayment, a $7930 cash refund from the 1997 overpayment, and the application of the remaining $107,795 of the 1997 overpayment to the Husband's 1998 income tax obligation.

The trial court's plan of equitable distribution also includes a surcharge to the Wife for her use of nonmarital assets. During the proceedings, she withdrew $68,000 from the Husband's corporate bank account. The trial court found that a portion of these monies, approximately $27,744, was used to pay the Wife's living expenses prior to the time she began to receive support from the Husband. Therefore, the trial court only surcharged the Wife the portion of the $68,000 she had not used for living expenses, to wit, $40,256. However, the Husband contends that this amount was a miscalculation of the amount the Wife was entitled to use as living expenses and that the Wife should have been surcharged $44,548.39.[1]

*303 Neither the record nor the trial court's final judgment offers a justification to support the trial court's calculation of the amount to surcharge the Wife. Instead, the record suggests that the Husband's mathematical calculations are correct. Because the trial court's conclusion is not supported by competent, substantial evidence, this portion of the equitable distribution is also flawed.

Therefore, we reverse the portion of the final judgment concerning the equitable distribution. On remand, pursuant to section 61.075(6), the trial court must establish a cut-off date for determining which assets should be classified as marital and must select a valuation date for determining the value of the marital assets. After making specific findings of fact and conclusions of law, the trial court must calculate the portions of the income tax overpayments that are marital assets and the portion of the marital assets to which the Wife is entitled.

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872 So. 2d 299, 2004 WL 784645, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cleary-v-cleary-fladistctapp-2004.