Morgan v. Morgan

213 So. 3d 378, 2017 WL 192033, 2017 Fla. App. LEXIS 493
CourtDistrict Court of Appeal of Florida
DecidedJanuary 18, 2017
DocketNo. 4D15-1607
StatusPublished

This text of 213 So. 3d 378 (Morgan v. Morgan) 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
Morgan v. Morgan, 213 So. 3d 378, 2017 WL 192033, 2017 Fla. App. LEXIS 493 (Fla. Ct. App. 2017).

Opinion

May, J.

The former wife appeals a final judgment of dissolution awarding her exclusive use and possession of the marital home, but leaving title in the name of both parties. She argues the trial court erred in not awarding her 100% of the home, not ordering the former husband to pay prior and future expenses for the home, and in not awarding her alimony, attorney’s fees, and costs. We affirm except for the trial court’s failure to address the issue of attorney’s fees and costs.

The former wife lived with the former husband in the marital home for about 25 years. She filed a sworn statement, attesting that the former husband vacated the marital home nine years prior to the proceedings. She attested that she paid around $40,000 in property taxes and homeowner’s association fees after the husband vacated the home. The former husband did not contribute to the home expenses nor child support after vacating the home. She claimed to have subsisted off of her disability checks. Due to illness, she was unable to obtain gainful employment until 2011 and was laid off shortly thereafter.

In 2013, the former wife petitioned for dissolution of marriage. Although she asked for alimony in the alternative, her primary goal was to obtain full ownership [380]*380of the marital home through equitable distribution. She also requested attorney’s fees and costs. The former wife’s financial affidavit showed a gross monthly income of $1,219 while the former husband’s financial affidavit indicated a gross monthly income of $3,158.

The former husband answered and counter-petitioned. He requested sale of the former marital home with the proceeds to be “divided among the parties in proportion to their respective interests,” or that he receive “the temporary exclusive use and permanent ownership of the marital home.”

The parties prepared a statement of the evidence in lieu of providing a transcript.1 The statement reflects the former wife testified that the home had special features, including a special electric generator and an open floor plan. The former husband testified that there was nothing special about the home. It was a builder model similar to like models in the neighborhood. The former husband testified that he is disabled and unemployed. He collects social security, which is $289 more than the former wife’s monthly disability payments.

In closing, the former wife argued that the former husband had superior assets and financial ability, which she believed weighed in favor of awarding the home to her. She requested equitable distribution of the marital home. Alternatively, she requested 75% of the proceeds if the home is sold, and that the former husband pay half of the homeowner’s expenses exceeding $500. The former husband disagreed and requested that the home be sold with the profits split 50/50.

The trial court articulated its ruling at the end of the hearing. It ordered the former wife receive exclusive use and possession of the marital home with a 50/50 split of the proceeds upon its sale. The court requested the parties to submit proposed final judgments. After not having received a proposed final judgment from the former wife, the court set the matter for a status conference.2 Ultimately, the trial court signed the former husband’s proposed final judgment.

The trial court awarded the former wife exclusive use and possession of the marital home until her death or remarriage, and ordered her responsible for “all usual and customary expenses.” In the event the home was sold, the proceeds were to be split 50/50. The judgment indicated that the court considered the relevant factors for alimony and equitable distribution: (1) the standard of living established during the marriage; (2) the duration of the marriage; (3) the age and physical emotional condition of each party; (4) the financial resources of each party; (5) the earning capacities and educational levels of each; (6) the contribution of each party to the marriage; (7) all sources of income available to each; and (8) the opinion in Anderson v. Anderson, 489 So.2d 1232 (Fla. 1st DCA 1986). The judgment was silent regarding alimony and the former wife’s request for attorney’s fees and costs.

The former wife moved for rehearing, which the court denied. She now appeals.

The former wife argues the trial court erred in equitably distributing the marital assets. She argues the court failed to make the specific written findings required by section 61.075, Florida Statutes (2015). She [381]*381also argues the court erred in failing to award her alimony. As an equal owner of the home, she argues the former husband should be responsible for half of the expenses and reimbursement for all repair expenses incurred after the former husband left the marital home. And last, she argues the court erred in failing to award her attorney’s fees and costs.

The former husband responds that the former wife improperly relies on her own self-serving statements attached to her motion for rehearing and not the record evidence. The court correctly awarded the former wife exclusive possession of the home as not only alimony, but equitable distribution of the only marital asset. The former wife invited error by requesting exclusive ownership of the home in lieu of alimony. He argues that the trial court complied with section 61.075 by listing its factors in the final judgment. With regard to attorney’s fees and costs, the former husband argues that the issue may have been waived, which cannot be determined without a transcript.

We review a trial court’s decision on the equitable distribution of marital assets and liabilities for an abuse of discretion. Pierre v. Pierre, 185 So.3d 1264, 1265 (Fla. 4th DCA 2016).

This is a case that reflects the old adage: “Be careful what you wish for.” Here the former wife requested ownership of the marital home. In fact, she asked for the home in lieu of alimony. The trial court essentially awarded her a life estate in the home as she was given full and exclusive possession of it. If however she sold the home, remarried, or died, the ownership of the home or proceeds from its sale would be split 50/50. So she did not receive all that she wished for, but did receive exclusive possession and use of the marital home.

When a court is equitably distributing assets, the starting point is an equal division of those assets. § 61.075(1), Fla. Stat. (2015). Here, the only marital asset in existence was the marital home. The court gave each party fifty percent ownership in that asset if the former wife sold the home, remarried, or died. She otherwise had exclusive possession of it. The court listed all the relevant factors under section 61.075, but did not analyze them.

The court also indicated that it relied upon Anderson v. Anderson, 489 So.2d 1232, 1234 (Fla. 1st DCA 1986), in reaching its decision. There, the First District also ordered the trial court to award the former wife exclusive possession of the home, as the trial court did here, with a 50/50 split upon remarriage, death, or sale of the home. “The critical question is whether the award is equitable and just given the nature of the case.” Id. (citing Duncan v. Duncan, 379 So.2d 949, 952 (Fla.1980)). The award here was equitable under the facts of this case, and we will not disturb it.

We also find no error in the court not ordering the former husband responsible for half of the expenses associated with the home. Unlike Anderson,

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Related

Anderson v. Anderson
489 So. 2d 1232 (District Court of Appeal of Florida, 1986)
Canakaris v. Canakaris
382 So. 2d 1197 (Supreme Court of Florida, 1980)
Duncan v. Duncan
379 So. 2d 949 (Supreme Court of Florida, 1980)
Derrevere v. Derrevere
899 So. 2d 1152 (District Court of Appeal of Florida, 2005)
Shingledecker v. State
734 So. 2d 483 (District Court of Appeal of Florida, 1999)
Joseph W. Pierre v. Marie C. Pierre
185 So. 3d 1264 (District Court of Appeal of Florida, 2016)
Nolan v. Nolan
100 So. 3d 170 (District Court of Appeal of Florida, 2012)
Fichtel v. Fichtel
141 So. 3d 593 (District Court of Appeal of Florida, 2014)

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Bluebook (online)
213 So. 3d 378, 2017 WL 192033, 2017 Fla. App. LEXIS 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-morgan-fladistctapp-2017.