Gilliard v. Gilliard

162 So. 3d 1147, 2015 Fla. App. LEXIS 6002, 2015 WL 1851561
CourtDistrict Court of Appeal of Florida
DecidedApril 24, 2015
DocketNo. 5D13-3359
StatusPublished
Cited by11 cases

This text of 162 So. 3d 1147 (Gilliard v. Gilliard) 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
Gilliard v. Gilliard, 162 So. 3d 1147, 2015 Fla. App. LEXIS 6002, 2015 WL 1851561 (Fla. Ct. App. 2015).

Opinion

LAMBERT, J.

Tyrone Gilliard (“Former Husband”) appeals the second amended final judgment of dissolution of marriage in which the trial court awarded Judy Gilliard (“Former Wife”) permanent periodic alimony, an unequal distribution of the marital assets, and attorney’s fees. For the reasons discussed below, we vacate the trial court’s second amended final judgment, reverse the first amended final judgment, and remand for further proceedings.

The parties were married for 14 years, 5 months. They have two children, one of which was a minor at the time Former Husband filed his petition for dissolution of marriage, but who has subsequently turned 18 years of age. Former Husband previously served in the United States Air Force and is now employed as a manager by the Federal Aviation Administration (“FAA”). Former Wife has primarily been a homemaker throughout the marriage, but for the last ten years, she has also worked parttime in retail sales and was earning $9.65 per hour at the time of the final hearing. Former Wife has a high school diploma and has completed one and a half years of college. Both parties are in good health, and at the time of the final judgment, Former Husband was 49 years of age and Former Wife was 58 years of age.

The trial court found that Former Husband’s salary fluctuated due to his assignments with the FAA, but that Former Husband’s gross income in 2010 was $125,063; in 2011 it was $154,016; and “as of March 12, 2012, [Former Husband’s] annual salary was $142,927.” The court also found that Former Husband receives retirement compensation from his employer of $118.69 per month, which is directly deposited into a thrift savings plan (“TSP”) and retirement benefits (“FERS”) of $1,412.51 per month, accruing into what the court referred to as a “defined contribution plan.” Former Husband’s employer also provides life insurance in the amount of two times his annual salary. Lastly, Former Husband separately receives approximately $740 per month from the Veteran’s Administration (“VA”).

The trial court awarded Former Wife $4000 per month in permanent periodic alimony and made an unequal distribution of the marital assets and liabilities as described below. Additionally, the court awarded Former Wife attorney’s fees totaling $18,367.50. The court directed Former Husband to pay Former Wife $6,341.09 in attorney’s fees, after crediting Former Husband $6000 for attorney’s fees he previously paid Former Wife and $6,026.41 for monies paid by Former Husband to Former Wife pursuant to a stipulation between the parties.1

[1151]*1151 Jurisdiction

As an initial matter, the second amended final judgment was entered untimely by the court, as it was entered on its own initiative more than ten days after the rendition of the first amended final judgment of dissolution of marriage. Furthermore, since the change in the second amended final judgment was not a clerical change,2 the court lacked jurisdiction to enter the second amended final judgment.

Florida Rule of Civil Procedure 1.530(d) (2013)3 provides:

Not later than 10 days after entry of judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

Fla. R. Civ. P. 1.530(d).4 Except as provided by specific rules, a trial court does not have separate authority, on its own initiative, to alter, modify, or vacate an order or judgment. Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson, 236 So.2d 1, 3 (Fla.1970); Levy v. Levy, 900 So.2d 737, 745-46 (Fla. 2d DCA 2005). Since the trial court lacked jurisdiction to enter the second amended final judgment, that judgment is void. See Benjamin v. Fore, 995 So.2d 543, 544 (Fla. 2d DCA 2008). Nevertheless, we have jurisdiction because Former Husband filed the notice of appeal within 30 days of the rendition of the first amended final judgment of dissolution of marriage, and the errors raised by Former Husband on appeal are equally applicable to the first amended final judgment.

Equitable Distribution

“In distributing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal ....”§ 61.075(1), Fla. Stat. (2013). Although a trial court may distribute marital assets and liabilities unequally, it is required to justify such an award based on all relevant factors listed in section 61.075(1)(a)-(j), Florida Statutes. Staton v. Staton, 710 So.2d 744, 745 (Fla. 2d DCA 1998). This serves to advise the reviewing court of the trial court’s rationale. Id.

In its equitable distribution award, the court determined that the marital portion of Former Husband’s TSP was 49% of the total value of the plan at the time his petition was filed and distributed to each party $41,721.54, reflecting their respective one-half interest in the marital portion of the TSP. The court distributed to Former Wife the marital home, valued at $140,248, and distributed to her the mortgage on the home, with an indebtedness of $167,778. To offset the negative equity in the home, the court awarded $13,765 to Former Wife, from Former Husband’s interest in the TSP. The court also awarded Former Wife a one-half interest in the marital portion of Former Husband’s FERS re[1152]*1152tirement benefits, but was unable to place a present value on this asset because it was a “defined contribution plan.” The court separately ordered a $6,026.41 distribution to Former Wife from Former Husband’s interest in the TSP because this amount was “previously applied to the [Former Wife’s] legal fees from the Thrift Savings Plan.” Lastly, the court distributed the motor vehicles and other items of personal property to the parties, consistent with the partial mediation settlement agreement they entered into earlier in the litigation.

Former Husband argues that the trial court erred in distributing the marital assets and liabilities for four reasons. First, he argues that the evidence at trial clearly established that during the marriage, the parties entered into a debt consolidation loan in the amount of $56,000 to pay their credit card indebtedness and that the court erred in not considering this debt as a marital liability for distribution. In the first amended final judgment, the trial court recognized that

the parties were working with a debt consolidation firm where the parties [sic] credit card debt which totaled $56,000 was consolidated into a monthly payment of $657.00 by the debt consolidation company and there was no evidence that the marital debt being paid by the consolidation company was less than the total testified to by the husband of $56,000.

However, when determining whether to award a credit to Former Husband for payments he testified he made on this debt, the court specifically concluded that it would not credit Former Husband for these payments because there was a lack of competent evidence regarding this debt or payments.

Second, Former Husband asserts that the court erred when it distributed to Former Wife the sum of $6,026.41 from Former Husband’s interest in his TSP.

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Cite This Page — Counsel Stack

Bluebook (online)
162 So. 3d 1147, 2015 Fla. App. LEXIS 6002, 2015 WL 1851561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilliard-v-gilliard-fladistctapp-2015.