RICHARD THOMAS MORGAN v. MONICA SUE MORGAN

• Court: District Court of Appeal of Florida
• Decided: September 17, 2021
• Docket: 20-1622
• Status: Published

Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

RICHARD THOMAS MORGAN,

Appellant,

v.

MONICA SUE MORGAN,

Appellee.

No. 2D20-1622

September 17, 2021

Appeal from the Circuit Court for Pinellas County; Christopher M. Labruzzo, Judge.

Paul S. Horning of Plotnick Law, P.A., St. Petersburg, for Appellant.

Mark F. Baseman of Felix, Felix & Baseman, LLC, Tampa, for Appellee.

KELLY, Judge.

Richard Thomas Morgan (the former husband) appeals from

the final judgment dissolving his marriage to Monica Sue Morgan

(the former wife). He challenges the trial court's equitable distribution award, its alimony award, and its award of retroactive

child support. We agree that the equitable distribution and alimony

awards must be reversed. Because those awards must be revisited,

we also reverse the award of retroactive child support for

reconsideration, taking into account any changes in the alimony or

equitable distribution awards.

Equitable Distribution

"Generally stated, equitable distribution of marital assets is a

three-step process: (1) identification of marital and nonmarital

assets, (2) valuation of marital assets, and (3) distribution of marital

assets as statutorily prescribed." Keurst v. Keurst, 202 So. 3d 123,

127 (Fla. 2d DCA 2016) (citing §§ 61.075(1), (3), Fla. Stat. (2013)).

The former husband argues, correctly, that the trial court erred

because it did not identify all the parties' assets and liabilities and

classify them as either marital or nonmarital. See id. (holding that

the failure to identify assets and liabilities as required by section

61.075(3) is reversible error).

The former husband also argues that the trial court erred in

failing to apply the proper classification date to the assets and

2 liabilities it did identify. The final judgment bears this out, showing

that the trial court was focused on the date it believed the parties

effectively ended their marriage. Section 61.075(7), Florida Statutes

(2017), requires that the date for determining which assets and

liabilities can be classified as marital assets or liabilities is the

earliest of the date the parties entered into a valid separation

agreement or the date the petition for dissolution of marriage was

filed. Because there was no separation agreement in this case, the

parties' assets and liabilities had to be identified as of the date the

former wife filed her petition. See Tritschler v. Tritschler, 273 So. 3d

1161, 1165 (Fla. 2d DCA 2019).

After the assets and liabilities are identified, the trial court

must then place a value on each. The date used in determining the

value of the assets and the amount of the liabilities is left to the

discretion of the court. See § 61.075(7) ("The date for determining

value of assets and the amount of liabilities identified or classified

as marital is the date or dates as the judge determines is just and

equitable under the circumstances."). This discretion arises only

after the assets and liabilities are characterized as marital or

nonmarital. See Rao-Nagineni v. Rao, 895 So. 2d 1160, 1161 (Fla.

3 4th DCA 2005). The trial court's error here is like the error

described in Rao-Nagineni in that throughout the final judgment the

court referenced the date the parties began living separately and

used that date to determine assets and liabilities and their values.

See id. at 1160-61. On remand, once the trial court has identified

all the marital assets and liabilities in existence when the petition

for dissolution was filed, it may then proceed to value them as of

the date or dates the court deems equitable. See § 61.075(7)

("Different assets may be valued as of different dates, as, in the

judge's discretion, the circumstances require."). The trial court's

equitable distribution scheme must comply with all the

requirements of section 61.075 and be supported by proper findings

establishing that the date of valuation is equitable. See Tritschler,

273 So. 3d at 1164-65.

Alimony

During the marriage the parties lived comfortably in large

homes, travelled frequently, and never worried about being able to

pay their bills. After the parties separated, the former husband

lived in a small apartment, drove a truck with over 200,000 miles

4 on it, and could barely make ends meet. The court found that "[t]he

evidence establishes that the parties lived an upper-middle class

lifestyle during the course of the marriage. The Husband's current

lifestyle is not commensurate with the marital lifestyle." The trial

court determined that the former wife's current monthly net income

was approximately $18,045 and compared it to the former

husband's monthly salary of $4,333.33. The court found that the

former wife had the ability to pay, and the former husband had the

need for alimony. Despite these findings, the trial court awarded

the former husband $1,000 per month in permanent periodic

alimony.

Given the standard of living established during the marriage

and the disparity between the parties' incomes, the trial court

abused its discretion in awarding the former husband a nominal

amount of alimony. See Juchnowicz v. Juchnowicz, 157 So. 3d 497,

500 (Fla. 2d DCA 2015) (holding that the trial court erred when it

determined the wife's need for permanent alimony based on her

postseparation lifestyle, rather than the standard of living enjoyed

during the marriage); Griffin v. Griffin, 906 So. 2d 386, 388 (Fla. 2d

DCA 2005) (noting that permanent alimony is intended to allow a

5 spouse "to maintain the standard of living established by the parties

during the marriage and to ensure that . . . one spouse is not

'shortchanged' "); Donoff v. Donoff, 940 So. 2d 1221, 1225 (Fla. 4th

DCA 2006) (noting that the purpose of permanent periodic alimony

is "to avoid—where possible—having a recipient pass from the ease

and comfort of always having more than enough, to the distress of

having only just enough for the essentials of minimum food, shelter

and clothing"). The trial court's alimony award is not

commensurate with the parties' marital standard of living and

creates a gross disparity.

Retroactive Child Support

The former husband challenges the amount of retroactive

child support awarded to the former wife. He argues the trial court

abused its discretion in determining his support obligation from

the date of separation rather than from the date the former wife

filed her petition. He contends that his move to Florida was not a

termination of the marital partnership but was intended to benefit

the child by qualifying for in-state tuition.

6 Section 61.30(17) provides that "[i]n an initial determination

of child support . . . the court has discretion to award child

support retroactive to the date when the parents did not reside

together in the same household with the child, not to exceed a

period of 24 months preceding the filing of the petition." Because

the former husband did not reside in the same household with the

parties' minor daughter for the two years before the petition was

filed, the trial court had the discretion to award retroactive child

support for the twenty-four months prior to the date of filing.

However, because the trial court's equitable distribution plan and

alimony award must be revisited, the court must also reconsider

the amount of retroactive child support in accordance with the

child support guidelines.

Conclusion

Accordingly, we affirm the dissolution of the parties' marriage

but reverse and remand so that the trial court can clearly identify

assets and liabilities that were in existence on the date of the filing

of the petition and then determine the value of each on the date the

court deems appropriate. The trial court must also reconsider the

7 alimony award to the former husband and the amount of retroactive

child support based on any amendments to the alimony award and

the equitable distribution scheme.

Affirmed in part, reversed in part, and remanded for

proceedings consistent with this opinion.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.