Marianne K. Brennan v. Daniel Joseph Brennan

184 So. 3d 583, 2016 Fla. App. LEXIS 1053, 2016 WL 313958
CourtDistrict Court of Appeal of Florida
DecidedJanuary 27, 2016
Docket4D14-1363
StatusPublished
Cited by7 cases

This text of 184 So. 3d 583 (Marianne K. Brennan v. Daniel Joseph Brennan) 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
Marianne K. Brennan v. Daniel Joseph Brennan, 184 So. 3d 583, 2016 Fla. App. LEXIS 1053, 2016 WL 313958 (Fla. Ct. App. 2016).

Opinion

TAYLOR, J.

The former wife appeals the Second Amended Final Judgment of Dissolution of *586 Marriage Following Issuance of Mandate by the Fourth District Court of Appeal (“Second Remand Judgment”). We affirm in part and reverse in part.

This appeal arises out of proceedings on remand following this court’s decision in Brennan v. Brennan, 122 So.3d 923 (Fla. 4th DCA 2013) (“Brennan I ”). In Brennan I, the former husband appealed a final judgment of dissolution as well as a post-judgment contempt order. While the former husband’s appeals were pending in Brennan I, we'relinquished jurisdiction so the trial court could amend the final judgment. The trial court then entered an Amended Final Judgment, attaching the equitable distribution schedule that was missing from the original final judgment.

The former husband’s appeals were consolidated, and his Amended Initial Brief raised seven issues concerning the dissolution judgment. 1 We reversed on the following five issues regarding the dissolution judgment: (1) Equitable Distribution of the Marital'Home; (2) Imputation of Income to Former Wife; (3) The Minor Child’s Private School Tuition; (4) Life Insurance to Secure Alimony and Child Support; and (5) Former Wife’s Attorney’s Fees and Costs as of Final Hearing. We also specifically noted in the opening paragraph of the decision that “[a]ll issues that do not follow below, we affirm, without discussion.” Id. at 925.

In the paragraph captioned “Equitable Distribution of the Marital Home,” our opinion stated: ‘We reverse the trial court’s decisions regarding equitable distribution. A trial court is" obligated to identify, value, and distribute the marital and non-marital assets- and liabilities.” Id. We found there to be three errors: the failure to attach the equitable distribution schedule, indicate if there was a' shift in title, and order partition:

The temporary use of the marital home was awarded to Former Wife “until the full implementation of the equitable distribution schedule”; however, without Exhibit “A” attached to the final order, no findings awarding the equity in the home can be discerned from the record. Moreover, even though the trial court awarded equity in the marital home to Former Wife, it failed to indicate if there was a shift in title. Also, the Former Wife requested partition. Where a request for partition complies with section 64.041, Florida Statutes (2010), and is not contested by the opposing party, failure to divide the property is reversible error.

Id. at 926. We then concluded our discussion of the equitable distribution issue by noting that the trial court could revise the entire scheme of equitable distribution on remand: “Because the trial court did not properly rule concerning the marital residence, the entire scheme of equitable divi *587 sion devised by the trial court may need revision.” 2 Id.

On the issue of imputed income, we reversed and found that “an imputation of income at a rate of $15,000 a year is unsupported by the evidence.” Id. After noting that a trial court- is required 'to make specific findings when imputing income at an amount'other than the median income, we explained: “The trial ‘court' failed to make a finding as to whether Wife’s unemployment was either voluntary or involuntary; it did not find whether shé was able to obtain employment, only that she was able to seek employment.” Id. We also stated: “Former Wife explained that $36,000 is the starting salary for ah entry level member of her profession. Her expert explained that a starting level employee in her position could make at minimum $25,000.” Id.

On the issue of whether the former husband should be required to pay for the child’s private school-tuition, we reversed because “[t]he trial court failed to make findings regarding whether Former Husband was able to pay the additional .expense.” Id.

We also reversed the determination that the former wife was entitled to attorney’s fees, explaining: “We reverse on this issue because where equitable distribution is reversed on appeal, it may be appropriate to reexamine attorney’s fees to determine if the redistribution of assets and liabilities affects the award for attorney’s fees.” Id. at 927.

Finally, we stated that “[b]ecause we reverse the award of alimony, and child support, we reverse the determination that Former Husband is in contempt.” Id.

The Brennan I opinion did not specifically discuss the former' husband’s arguments that: (1) the trial court erred in failing'to account-for the negative $240,000 value of the former husband’s dental practice in its equitable distribution schedule; and (2) the trial court abused its discretion in awarding the former wife durational alimony for a period of ten years. We therefore affirmed on these issues without discussion. Id. at 925 (“All issues that do not follow below, we affirm without discussion”).

At the final hearing on remand, the •court heard testimony from the parties and the - former husband’s vocational ex-, pert and appraiser. The former wife objected to re-litigating the former husband’s financial circumstances and revisiting the valuations in the original equitable distribution schedule, but the court allowed evidence concerning these matters.

The appraiser testified that the home was worth $500,000. The former wife and the former husband’s vocational expert both gave testimony relevant to the imputation of income issue. The former husband claimed that he was $1.1 million in debt with his dental -business at the time of the dissolution petition. He also gave testimony relevant to the issue of the child’s private school tuition,. including testimony as to his 2013 income.

Following the hearing, the trial court entered the Second Remand Judgment, which adopted the former husband’s proposed equitable distribution schedule. *588 The trial court valued the former husband’s dental • business at negative $240,000. 3 The court also ordered partition and sale of the marital home, but the judgment contained inconsistent provisions regarding whether the home would be listed for private sale or sold - at. a public auction.

The new equitable distribution schedule changed the value of various assets (including the marital home), and also distributed assets differently.

In the Second Remand Judgment, the court also revisited the issue of imputation of income. Relying upon the testimony of the former husband’s vocational expert, the court imputed $48,000 in income" to the former wife. The court reduced the duration of alimony so that alimony would terminate five years from the date of the Second Remand Judgment. Based on the new imputation of income figure, the court ordered the former husband to pay $3,250 per month in durational alimony to the former wife.

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Bluebook (online)
184 So. 3d 583, 2016 Fla. App. LEXIS 1053, 2016 WL 313958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marianne-k-brennan-v-daniel-joseph-brennan-fladistctapp-2016.