Mitchell v. Mitchell

841 So. 2d 564, 28 Fla. L. Weekly Fed. D 714
CourtDistrict Court of Appeal of Florida
DecidedMarch 14, 2003
Docket2D01-2499, 2D02-1600
StatusPublished
Cited by23 cases

This text of 841 So. 2d 564 (Mitchell v. Mitchell) 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
Mitchell v. Mitchell, 841 So. 2d 564, 28 Fla. L. Weekly Fed. D 714 (Fla. Ct. App. 2003).

Opinion

841 So.2d 564 (2003)

Franz Edward MITCHELL, Appellant/Petitioner,
v.
Carol Lynn MITCHELL, Appellee/Respondent.

Nos. 2D01-2499, 2D02-1600.

District Court of Appeal of Florida, Second District.

March 14, 2003.

*566 Franz Edward Mitchell, pro se.

Clifton C. Curry of Law Offices of Curry & Associates, P.A., Brandon, for Appellee.

NORTHCUTT, Judge.

Franz Edward Mitchell appealed the final judgment dissolving his marriage to Carol Lynn Mitchell. While that appeal was pending, the circuit court rendered an order that arguably corrected a scrivener's error in the final judgment. However, Mr. Mitchell contends that the order substantively modified the final judgment while the circuit court's jurisdiction to do so was divested by virtue of the appeal. He challenged the order by petition for writ of certiorari. We have determined that the certiorari proceeding is more properly an appeal, and we treat it as such. We have consolidated the appeals sua sponte, and we reverse in part.

When the Mitchells married in June 1993, Mr. Mitchell owned a home in Tampa's Carrollwood neighborhood and 41 acres of unimproved land in North Carolina. These properties remained titled in his name alone throughout the parties' marriage. During the marriage, the Mitchells lived in the Carrollwood home and made mortgage payments on both properties with marital funds. Ms. Mitchell had two children from an earlier marriage, and two children were born to the parties. He is an instructor at Hillsborough Community College. She is a self-employed nurse legal consultant.

For purposes of our discussion, we have consolidated Mr. Mitchell's eleven issues into several categories.

CARROLLWOOD RESIDENCE

Oddly, the final judgment made two different dispositions of the Carrollwood home. On one hand, it awarded Ms. Mitchell exclusive use and possession of the home as long as she has primary residential custody of the parties' children. At the same time, the court purported to award the home to Ms. Mitchell outright.

When making the latter award, the circuit court determined that the $13,900 difference between the home's market value and the mortgage indebtedness at the time of the marriage was nonmarital. But it characterized the entire appreciated value of the home as marital property. The final judgment ordered Mr. Mitchell to quit-claim all of his interest to Ms. Mitchell, thus awarding her the entire equity of $36,751.

This was error. Because Mr. Mitchell acquired the home prior to the marriage and kept it titled in his name, it was his nonmarital property. *567 § 61.075(5)(b), Fla. Stat. (2000). Section 61.075(1) provides that "the court shall set apart to each spouse that spouses's nonmarital assets and liabilities...." Absent an agreement, a nonmarital asset may not be awarded to the non-owner spouse as equitable distribution. See Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000).

On the other hand, the enhancement in value of a nonmarital asset resulting from either party's nonpassive efforts or the expenditure of marital funds is a marital asset. § 61.075(5)(a)2.; Belmont, 761 So.2d at 408. Here, the circuit court found that the home's value had been enhanced due to marital funds and efforts. But any such enhancement was surely negligible. The Mitchells performed what were, at bottom, primarily cosmetic or maintenance-related improvements, such as wallpapering and the like. By far, the most important factor in the increase in the value of the property was passive market appreciation, which both parties' appraisers calculated to be five to six per cent annually. This factor, alone, produced a market value of $185,000, which was the value assigned to the home by the circuit court.

Relying on Sizemore v. Sizemore, 767 So.2d 545, 547 (Fla. 5th DCA 2000), the circuit court concluded that a marital contribution to an asset's value subjects the entire appreciation of the asset to equitable distribution even if the increased value is primarily created by passive inflation. That is not the law in the Second District. Where, as here, the increase in market value is attributable to "inflation or fortuitous market forces," the expenditure of marital funds on the nonmarital asset does not transform the appreciated asset into marital property. See Straley v. Frank, 612 So.2d 610, 612 (Fla. 2d DCA 1992). But an increase in equity due to the use of marital funds to pay down a mortgage balance is a marital asset subject to equitable distribution. Cornette v. Cornette, 704 So.2d 667, 668 (Fla. 2d DCA 1997). Therefore, Ms. Mitchell's rightful interest in the Carrollwood home is limited to her one-half share of the amount by which the mortgage was reduced with marital payments.

On remand, the circuit court shall calculate the amount by which marital funds reduced the mortgage indebtedness in order to equitably distribute to Ms. Mitchell her share of the enhanced equity. It shall also enter any necessary orders to restore legal title to the home to Mr. Mitchell. We will address the question of exclusive use and possession of the home as an aspect of child support later in the opinion.

NORTH CAROLINA PROPERTY

Citing Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995), and Sizemore, 767 So.2d 545, the circuit court characterized the entire appreciation in the value of the nonmarital North Carolina property as a marital asset subject to equitable distribution despite the fact that the appreciation was entirely attributable to passive inflation. As in the case of the Carrollwood home, this was error. It is undisputed that the property is unimproved. It has no sewer, septic, electric, or water connections. The record shows that the parties used marital funds to pay mortgage payments, taxes, and a road assessment fee. Under Straley, 612 So.2d 610, the increase in Mr. Mitchell's equity due to the use of marital funds to pay down the mortgage is a marital asset to be divided between the parties. Otherwise, the North Carolina property is Mr. Mitchell's nonmarital asset.

FAILURE TO CHARACTERIZE AND DISTRIBUTE LIABILITIES

The circuit court failed to characterize as marital or nonmarital three revolving *568 charge accounts. On remand, the court shall comply with section 61.075(1) by determining whether these liabilities are marital or nonmarital. If the former, it shall include these liabilities in its equitable distribution scheme. See Esposito v. Esposito, 651 So.2d 1248, 1248 (Fla. 2d DCA 1995).

VISITATION

The final judgment ordered the parties to share parental responsibility for their children, with Ms. Mitchell designated as the primary residential parent. The court approved the recommendation of the court-appointed psychologist that the parties undertake a "nine day/five day" visitation schedule. But when setting forth the particulars, the judgment provided that Mr. Mitchell was to have visitation "every Thursday overnight and every other weekend Friday through Tuesday morning." (Emphasis supplied.) Then, in seeming contradiction of that schedule, the judgment provided "[t]he summertime visitation schedule will reverse so that the Husband would then have the minor children 9 consecutive overnights and the mother would have the same visitation as the father until school began."

In an order entered while Mr. Mitchell's first appeal was pending, the circuit court observed that the phrase "every Thursday" was a scrivener's error, and should have read "every other

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Bluebook (online)
841 So. 2d 564, 28 Fla. L. Weekly Fed. D 714, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchell-v-mitchell-fladistctapp-2003.