IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
September 30, 2020
DAVID A. STREET, ) ) Appellant, ) ) v. ) Case No. 2D18-283 ) ELYSSA A. STREET, ) ) Appellee. ) )
BY ORDER OF THE COURT:
Appellee's motion for rehearing is granted, and the prior opinion dated
May 1, 2020, is withdrawn and the attached opinion is issued in its place. Appellee's
request for appellate attorney's fees for the motion for rehearing is remanded to the trial
court. If Appellee establishes her entitlement thereto, the trial court is authorized to
award all or a portion of her reasonable appellate attorney's fees.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL CLERK NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
DAVID A. STREET, ) ) Appellant, ) ) v. ) Case No. 2D18-283 ) ELYSSA A. STREET, ) ) Appellee. ) )
Opinion filed September 30, 2020.
Appeal from the Circuit Court for Collier County; Joseph G. Foster, Judge.
Mark V. Silverio and Cynthia B. Hall, of Silverio & Hall, P.A., Naples, for Appellant.
Cynthia L. Greene of Young, Berman, Karpf & Gonzalez, P.A. Miami, for Appellee.
ATKINSON, Judge.
David A. Street, the husband, appeals from a final judgment dissolving his
marriage to Elyssa A. Street, the wife. Because the trial court erred in its classification
of certain assets as marital, we reverse the final judgment in part and remand for the
entry of an amended final judgment consistent with this opinion. The parties were married on December 28, 2006. Neither party was
employed or earned a wage income during the marriage. Instead, the husband
supported the family by passive income and funds from his nonmarital accounts as well
as loans from his father. The wife filed a petition for dissolution of marriage on October
14, 2014. The case was tried over three days in February 2016, and a fourth hearing
took place in June 2016. Both parties presented accounting experts at the hearings.
In its final judgment, the trial court found that, with the exception of two
accounts (First Bank Trust No. 5852 and Raymond James No. 4228), the husband
failed to prove that the remaining disputed assets were nonmarital. As such, the
remaining assets pertinent to this appeal were equitably distributed as follows: (1) the
bank accounts and brokerage accounts were divided utilizing the husband's valuations
of each; (2) the boat slip was distributed to the husband; (3) the stocks purchased by
the husband were distributed to him in accordance with the husband's valuations of
each; and (4) the vehicles were distributed to the husband using the husband's
valuations of each. The court ordered the husband to pay the wife an equalizer
payment in the amount of $952,962.00 within sixty days of the entry of its final
judgment.
This court reviews a trial court's classification "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)). Florida's
equitable distribution statute provides the following in pertinent part:
-2- (a) 1. "Marital assets and liabilities" include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. c. Interspousal gifts during the marriage. .... (b) "Nonmarital assets and liabilities" include: 1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
§ 61.075(6), Fla. Stat. (2014). In classifying assets as marital or nonmarital, "the trial
court will consider numerous factors including title, commingling of marital and
nonmarital funds, increases in value because of marital efforts, control of the funds, the
length of the marriage, and the parties' intent concerning the marital or nonmarital status
of the funds." Grieco v. Grieco, 917 So. 2d 1052, 1054 (Fla. 2d DCA 2006).
Accounts
The trial court erred in classifying the following accounts as marital assets:
(1) First Bank No. 4649; (2) Charles Schwab No. 9688; (3) Raymond James No. 0443;
(4) JP Morgan No. 8001; and (5) JP Morgan No. 9009.
Both First Bank No. 4649 and Raymond James No. 0443 were opened
prior to the marriage and were only listed in the husband's name. There was no
evidence that these accounts had been commingled with marital funds. See Pinder v.
Pinder, 750 So. 2d 651, 653 (Fla. 2d DCA 1999) (holding that the trial court erred in
concluding that the wife's investment account was a marital asset because the evidence
-3- showed that the money came from an inheritance and there was no evidence of
commingling); Gromet v. Jensen, 201 So. 3d 132, 134-35 (Fla. 3d DCA 2015)
(reversing portion of the final judgment finding that the husband's three accounts lost
their character as nonmarital assets due to commingling because the wife failed to
introduce any evidence to support that marital funds were deposited into the accounts).
As such, these accounts should have been classified as nonmarital.
Although Charles Schwab No. 9688, JP Morgan No. 8001, and JP Morgan
No. 9009 were opened during the marriage, these accounts were funded by the
husband's nonmarital accounts. The wife admitted that she did not put any marital
funds into any of these accounts. Additionally, the husband's expert did a full tracing of
JP Morgan No. 8001 and JP Morgan No. 9009 and testified that no marital deposits
were made into these accounts. Because these accounts only contained assets that
were acquired by the husband prior to the marriage and there was no evidence of
commingling, these accounts should have been classified as nonmarital. See Alvarez
v. Plana, 974 So. 2d 1126, 1127 (Fla. 5th DCA 2008) (holding that the trial court erred in
determining that a joint account was a marital asset because the account only contained
assets that were acquired by the husband prior to the marriage, the assets were never
commingled with marital assets, and the husband managed the account exclusively
throughout the marriage).
However, the trial court properly concluded that the husband failed to
meet his burden in proving that First Bank No. 0878 was a nonmarital asset. The
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IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
September 30, 2020
DAVID A. STREET, ) ) Appellant, ) ) v. ) Case No. 2D18-283 ) ELYSSA A. STREET, ) ) Appellee. ) )
BY ORDER OF THE COURT:
Appellee's motion for rehearing is granted, and the prior opinion dated
May 1, 2020, is withdrawn and the attached opinion is issued in its place. Appellee's
request for appellate attorney's fees for the motion for rehearing is remanded to the trial
court. If Appellee establishes her entitlement thereto, the trial court is authorized to
award all or a portion of her reasonable appellate attorney's fees.
I HEREBY CERTIFY THE FOREGOING IS A TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL CLERK NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
DAVID A. STREET, ) ) Appellant, ) ) v. ) Case No. 2D18-283 ) ELYSSA A. STREET, ) ) Appellee. ) )
Opinion filed September 30, 2020.
Appeal from the Circuit Court for Collier County; Joseph G. Foster, Judge.
Mark V. Silverio and Cynthia B. Hall, of Silverio & Hall, P.A., Naples, for Appellant.
Cynthia L. Greene of Young, Berman, Karpf & Gonzalez, P.A. Miami, for Appellee.
ATKINSON, Judge.
David A. Street, the husband, appeals from a final judgment dissolving his
marriage to Elyssa A. Street, the wife. Because the trial court erred in its classification
of certain assets as marital, we reverse the final judgment in part and remand for the
entry of an amended final judgment consistent with this opinion. The parties were married on December 28, 2006. Neither party was
employed or earned a wage income during the marriage. Instead, the husband
supported the family by passive income and funds from his nonmarital accounts as well
as loans from his father. The wife filed a petition for dissolution of marriage on October
14, 2014. The case was tried over three days in February 2016, and a fourth hearing
took place in June 2016. Both parties presented accounting experts at the hearings.
In its final judgment, the trial court found that, with the exception of two
accounts (First Bank Trust No. 5852 and Raymond James No. 4228), the husband
failed to prove that the remaining disputed assets were nonmarital. As such, the
remaining assets pertinent to this appeal were equitably distributed as follows: (1) the
bank accounts and brokerage accounts were divided utilizing the husband's valuations
of each; (2) the boat slip was distributed to the husband; (3) the stocks purchased by
the husband were distributed to him in accordance with the husband's valuations of
each; and (4) the vehicles were distributed to the husband using the husband's
valuations of each. The court ordered the husband to pay the wife an equalizer
payment in the amount of $952,962.00 within sixty days of the entry of its final
judgment.
This court reviews a trial court's classification "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)). Florida's
equitable distribution statute provides the following in pertinent part:
-2- (a) 1. "Marital assets and liabilities" include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. b. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. c. Interspousal gifts during the marriage. .... (b) "Nonmarital assets and liabilities" include: 1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.
§ 61.075(6), Fla. Stat. (2014). In classifying assets as marital or nonmarital, "the trial
court will consider numerous factors including title, commingling of marital and
nonmarital funds, increases in value because of marital efforts, control of the funds, the
length of the marriage, and the parties' intent concerning the marital or nonmarital status
of the funds." Grieco v. Grieco, 917 So. 2d 1052, 1054 (Fla. 2d DCA 2006).
Accounts
The trial court erred in classifying the following accounts as marital assets:
(1) First Bank No. 4649; (2) Charles Schwab No. 9688; (3) Raymond James No. 0443;
(4) JP Morgan No. 8001; and (5) JP Morgan No. 9009.
Both First Bank No. 4649 and Raymond James No. 0443 were opened
prior to the marriage and were only listed in the husband's name. There was no
evidence that these accounts had been commingled with marital funds. See Pinder v.
Pinder, 750 So. 2d 651, 653 (Fla. 2d DCA 1999) (holding that the trial court erred in
concluding that the wife's investment account was a marital asset because the evidence
-3- showed that the money came from an inheritance and there was no evidence of
commingling); Gromet v. Jensen, 201 So. 3d 132, 134-35 (Fla. 3d DCA 2015)
(reversing portion of the final judgment finding that the husband's three accounts lost
their character as nonmarital assets due to commingling because the wife failed to
introduce any evidence to support that marital funds were deposited into the accounts).
As such, these accounts should have been classified as nonmarital.
Although Charles Schwab No. 9688, JP Morgan No. 8001, and JP Morgan
No. 9009 were opened during the marriage, these accounts were funded by the
husband's nonmarital accounts. The wife admitted that she did not put any marital
funds into any of these accounts. Additionally, the husband's expert did a full tracing of
JP Morgan No. 8001 and JP Morgan No. 9009 and testified that no marital deposits
were made into these accounts. Because these accounts only contained assets that
were acquired by the husband prior to the marriage and there was no evidence of
commingling, these accounts should have been classified as nonmarital. See Alvarez
v. Plana, 974 So. 2d 1126, 1127 (Fla. 5th DCA 2008) (holding that the trial court erred in
determining that a joint account was a marital asset because the account only contained
assets that were acquired by the husband prior to the marriage, the assets were never
commingled with marital assets, and the husband managed the account exclusively
throughout the marriage).
However, the trial court properly concluded that the husband failed to
meet his burden in proving that First Bank No. 0878 was a nonmarital asset. The
husband testified that this account was opened prior to the marriage. However, his
expert testified that it was opened during the marriage and that it was fully funded by
-4- one of the husband's nonmarital accounts. The wife's expert was unsure whether to
classify this account as marital or nonmarital because no statement was provided for
this account. Given the conflicting testimony between the husband and his expert as to
when the account was opened, the husband failed to meet his burden to prove that this
account was nonmarital. See Smith v. Smith, 971 So. 2d 191, 193 (Fla. 1st DCA 2007)
(noting that the spouse claiming that an asset is nonmarital has the burden of proof).
Stocks
The trial court erred in classifying the husband's stock in First Bancorp,
AIG, AmerisourceBergen, Western Union, First Horizon, Host Hotels, and Yum Brands
as marital assets. The husband acquired stock in these companies prior to the
marriage, and there was no evidence of enhancement or commingling or that they were
given to the wife as a gift. See Farrior v. Farrior, 736 So. 2d 1177, 1178 (Fla. 1999)
(holding that where stock is not sold, intermingled with other assets, and remained titled
in the wife's name, the stock was nonmarital); Doerr v. Doerr, 751 So. 2d 154, 155 (Fla
2d DCA 2000) (holding that the trial court erred in classifying the husband's General
Electric stock as marital because the husband inherited the stock during the marriage,
the stock grew by passive appreciation, and the wife did nothing to enhance its value);
Robinson v. Robinson, 10 So. 3d 196, 197 (Fla. 1st DCA 2009) (holding that the trial
court erred in finding that shares of stock that the husband acquired prior to the
marriage was marital because there was no evidence of enhancement, commingling, or
a gift to the wife).
Vehicles
-5- The trial court erred in classifying the 2016 Jaguar, the 2014 Mercedes
Benz, the BMW Motorcycle, and the Harley Davidson Motorcycle as marital assets.
Although the 2016 Jaguar, the 2014 Mercedes Benz, and the BMW Motorcycle were
acquired during the marriage, they were purchased with funds from the husband's First
Bank Trust 5852 account, which the trial court properly found was nonmarital. Because
the husband purchased these vehicles with nonmarital funds, they are nonmarital
assets not subject to equitable distribution. See § 61.075(6)(b)1. (providing that assets
acquired by either party prior to the marriage and assets acquired in exchange for such
assets are nonmarital); cf. Distefano v. Distefano, 253 So. 3d 1178, 1182 (Fla. 2d DCA
2018) (holding that the trial court erred in classifying a 2014 Toyota Camry as the wife's
nonmarital asset because the vehicle was purchased during the marriage, in part, with
commingled money held in the wife's checking account that contained marital funds).
Because the husband received the Harley Davidson Motorcycle as a gift from his father,
it is a nonmarital asset. See § 61.075(6)(b)2. (declaring assets acquired separately by
either party by noninterspousal gift to be nonmarital).
However, the trial court properly concluded that the husband failed to
meet his burden to prove that the 2012 Mini Cooper, the 2012 Ford, and the 2010
Greyhawk Mini were nonmarital assets. These vehicles were acquired during the
marriage, and there was either no testimony or inconclusive testimony as to what
account was used to purchase these vehicles. See § 61.075(6)(a)1.a. (declaring assets
acquired during the marriage, individually by either spouse or jointly by them, to be
marital).
Boat Slip
-6- The trial court erred in classifying the boat slip as marital. Although it was
obtained during the marriage, it was purchased with funds from the husband's JP
Morgan No. 8001 account, which was a nonmarital asset. See § 61.075(6)(b)1.
Conclusion
Based on the foregoing, we reverse the final judgment in part and remand
for the trial court to correct the equitable distribution schedule consistent with this
opinion. Upon remand, the trial court is directed to consider whether an award of
alimony or a change in child support is necessary in light of the corrections to the
equitable distribution. See Santiago v. Santiago, 51 So. 3d 637, 639 (Fla. 2d DCA
2011) ("The trial court may revisit other interrelated financial issues, such as alimony
and attorneys’ fees, to the extent they are affected by any changes in the equitable
distribution scheme." (citing Noah v. Noah, 491 So. 2d 1124, 1128 (Fla. 1986))); Bailey
v. Bailey, 617 So. 2d 815, 816–17 (Fla. 2d DCA 1993); Colino v. Colino, 198 So. 3d
1137, 1140 (Fla. 5th DCA 2016).
Affirmed in part, reversed in part, and remanded with instructions.
CASANUEVA and SLEET, JJ., Concur.
-7-