Fortune v. Fortune

61 So. 3d 441, 2011 Fla. App. LEXIS 5942, 36 Fla. L. Weekly Fed. D 869
CourtDistrict Court of Appeal of Florida
DecidedApril 27, 2011
DocketNo. 2D09-5564
StatusPublished
Cited by18 cases

This text of 61 So. 3d 441 (Fortune v. Fortune) 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
Fortune v. Fortune, 61 So. 3d 441, 2011 Fla. App. LEXIS 5942, 36 Fla. L. Weekly Fed. D 869 (Fla. Ct. App. 2011).

Opinion

MORRIS, Judge.

Victoria R. Fortune, the wife, appeals the final judgment dissolving her marriage to Gregg R. Fortune, the husband. Of the ten issues raised by the wife on appeal, we [444]*444conclude that the trial court erred in regard to the four main points addressed below. We reverse the final judgment and remand for further proceedings on these issues.

I. Facts

The parties married in 1991 in Michigan. They resided in Michigan until they moved to Florida in 2007. They have five children who were born between 1992 and 2000 and were minors at the time of the final judgment of dissolution entered on October 7, 2009. Early in the marriage, the husband left his job at Ford Motor Credit and became a certified financial planner. At the time of the dissolution, he owned a financial planning company in Michigan and was a partner in a financial planning company in Florida. His businesses were extremely successful in the years leading up to the dissolution proceedings, when he reported yearly income in the range of $246,000 to $346,000. During the marriage, the wife was a homemaker and home-schooled the children.

The parties separated in January 2008, and the husband filed the petition for dissolution at that time. During the pen-dency of the dissolution proceedings, the husband reported earning significantly less income, which he attributed to the economic recession. At the time of trial, he claimed a net income of zero. The wife became a certified personal trainer and worked part-time during the parties’ separation but had stopped working and was attending college at the time of the dissolution.

In the final judgment of dissolution, the trial court denied the wife’s request for permanent alimony and declined to reserve jurisdiction to award alimony in the future. The trial court awarded the parties shared parental responsibility of the children with the wife caring for the children 60% of the time. The trial court imputed monthly income in the amount of $1000 to each parent, resulting in the husband’s child support payment being $158.10 per month under the child support guidelines. In its equitable distribution determination, the trial court found that the marital liabilities outweigh the marital assets of the parties and distributed to each party $111,309 in marital liabilities.

II. Analysis

A. The $150,000 advance

The wife first argues on appeal that the trial court erred in finding that an alleged advance from the husband’s Florida business to the husband constituted a marital debt and in factoring that debt into the equitable distribution scheme to the detriment of the wife.

The husband owns 40% of the Florida business, Prosperitas Financial Advisors. At the final hearing, the husband testified that the 60%-owner of Prosperitas, Harry Cendrowski, advanced the husband $150,000 against future income. The husband testified that he incurred the loan both before and after the parties’ separation and that he used the loan for “marital purposes.” This obligation to Prosperitas was not reflected on the husband’s original financial affidavit filed approximately six months after he filed the petition for dissolution. It was also not reflected on any of his subsequent financial affidavits filed thereafter. At trial, the husband testified that he did not have a promissory note or any other writing documenting the loan, but he was permitted to introduce into evidence an affidavit of Mr. Cendrowski. The affidavit stated that the advance was made to the husband in monthly installments from September 2007 until present. One of the pretrial orders in the record indicates that the husband stated he borrowed the money to pay the temporary awards ordered by the trial court, but the [445]*445trial court did not make a finding in that temporary order as to when the advances were made or how much of the money was borrowed to pay the temporary awards.

In the final judgment, the trial court listed the remainder of this $150,000 obligation ($146,007) as a marital liability and distributed it in total to the husband. This benefitted the husband because in attempting to equitably distribute the marital property, the trial court awarded the husband the only real marital assets — the remaining balances of the retirement accounts. The trial court also ordered the wife to pay a $22,000 equalizer payment to the husband within four months of the judgment in order to balance out the negative awards to both parties in the equitable distribution scheme.

We review de novo the trial court’s characterization of an asset or liability as “marital.” Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007). Relevant to the facts of this case, “[t]he cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is ... the date of the filing of a petition for dissolution of marriage.” § 61.075(7), Fla. Stat. (2009). Assets and liabilities not in existence on that date should not be classified as marital. See Schmitz v. Schmitz, 950 So.2d 462, 463 (Fla. 4th DCA 2007); Byers v. Byers, 910 So.2d 336, 344-45 (Fla. 4th DCA 2005). Moreover, a total loan obligation should not be classified as a marital debt if part of the debt is used to pay for nonmarital expenses. See Walker v. Walker, 827 So.2d 363, 364-65 (Fla. 2d DCA 2002) (holding that it would be improper for the trial court to classify as marital debt portions of a loan that were used to pay for nonmarital property expenses; reversing and remanding for trial court to “reevaluate whether and to what extent the challenged loans are to be treated as marital debts”).

It is first necessary to address the affidavit of Mr. Cendrowski. It was the sole corroboration for the husband’s testimony that Prosperitas advanced the husband $150,000. The affidavit, an out-of-court statement offered to prove the truth of the matter asserted, is the most basic form of hearsay. See § 90.801(l)(c), Fla. Stat. (2009). It is well settled that affidavits are not admissible to prove facts in issue at an evidentiary hearing because they are not subject to cross-examination and because they impermissibly shift the burden of proof to the other party. B.C.S., S.r.l. v. Wise, 910 So.2d 871, 874 (Fla. 5th DCA 2005).

This loan was a critical piece of the equitable distribution scheme. By allowing the husband to introduce Mr. Cen-drowski’s affidavit without calling Mr. Cendrowski as a witness, the trial court denied the wife the right to confront and cross-examine the only witness who could corroborate the husband’s claim regarding this substantial loan. The trial court abused its discretion in admitting Mr. Cen-drowski’s affidavit. See O’Brien v. O’Brien, 899 So.2d 1133, 1137 (Fla. 5th DCA 2005) (holding that the admission of evidence is in the discretion of the trial court).

The remaining, properly admitted evidence did not support the husband’s assertion that the $150,000 loan was incurred before the dissolution filing or that it was spent on marital expenses or obligations. The trial court made no findings regarding when the advance was made to the husband or what expenses the advance was used to pay. Therefore, it was error for the trial court to classify the entire amount of the loan as a marital debt. See Walker, 827 So.2d at 365. Accordingly, we reverse the equitable distribution determi[446]*446nation and remand for a further hearing on this matter.

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Cite This Page — Counsel Stack

Bluebook (online)
61 So. 3d 441, 2011 Fla. App. LEXIS 5942, 36 Fla. L. Weekly Fed. D 869, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fortune-v-fortune-fladistctapp-2011.