IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
SHARIN KAYE JOHNSON,
Appellant/Cross-Appellee,
v. Case No. 5D21-621 LT Case No. 2019-DR-160
ERIC PAUL JOHNSON,
Appellee/Cross-Appellant. ________________________________/
Opinion filed November 4, 2022
Appeal from the Circuit Court for Flagler County, Christopher A. France, Judge.
Jessie L. Harrell, of The Harrell Firm, Jacksonville, for Appellant/Cross- Appellee.
William S. Graessle, of William S. Graessle, P.A., Jacksonville, for Appellee/Cross-Appellant.
PER CURIAM.
Sharin Johnson (“Former Wife”) appeals the trial court’s final judgment
of dissolution of marriage, dissolving her marriage with Eric Johnson
(“Former Husband”). Former Husband cross-appeals from that judgment. Former Wife raises six issues. She argues the trial court erred by failing
to: (1) award retroactive child support; (2) enter an income deduction order
requiring Former Husband to make his support payments through the State
Disbursement Unit; (3) allow Former Wife to claim the dependency tax
exemption every year; (4) remove a $1,686.94 credit from Former Husband’s
equitable distribution column where Former Husband did not incur that
expense; (5) order Former Husband to maintain life insurance to secure his
support obligation; and (6) address Former Wife’s request for attorney’s fees
based on Former Husband’s bad faith conduct.
On cross-appeal, Former Husband challenges the trial court’s
equitable distribution scheme, including its rulings on (a) tax liabilities; (b)
business account balances; (c) medical bill balances; (d) forensic accounting
and social investigation costs; (e) valuation of property Former Husband
claims was either “stolen or kept” by Former Wife; and (f) post-separation
debt.
The parties had two children during the course of their nearly twenty-
one-year marriage, one of whom was still a minor at the time of dissolution.
Former Wife did not work for the majority of the marriage, staying home
raising the children. Former Husband operated two IT consulting businesses,
which were jointly owned by the parties. Former Husband filed his petition
2 for dissolution in February 2019, and Former Wife filed her counter-petition
thereafter.
Following an initial mediation, the parties agreed to entry of a consent
temporary order, which provided, inter alia: (a) completion of a social
investigation, for which Former Husband would pay the initial $4,000
retainer; the trial court reserved jurisdiction to apportion the remaining cost
after a final hearing; (b) Former Husband has the right to inspect the contents
of the marital home; no party shall remove items from the home; (c)
performance of a forensic accounting to determine Former Husband’s
income, for which he would pay the initial $2,000 retainer; the trial court
reserved jurisdiction to apportion the cost after a final hearing; (d) sale of the
marital home, with Former Wife to have exclusive use and occupancy until
sold.
In July 2020, an evidentiary hearing was held for temporary relief, at
which the social investigator, forensic accountant, and Former Wife testified.
The accountant found, contrary to Former Husband’s earlier-filed financial
affidavits, that Former Husband’s monthly gross income for 2019 was
$8,284, and approximately $11,000 for 2020. 1 The accountant also found
Former Husband had claimed a 2019 gross monthly income of $6,748 1
and a 2020 gross monthly income of $8,024.
3 that historically, Former Husband’s net monthly income averaged $10,800.
Having exhausted the allotted hearing time, the trial court elected to set the
case for trial later that same month, rather than issuing a ruling or setting
additional time on temporary matters. The trial court proposed utilizing the
testimony from the temporary relief hearing as part of the trial. Neither party
objected, and trial was set to take place over two days, one in July and the
other in August.
Prior to the effective continuation of the trial, the parties entered into a
“Joint Stipulation of Final Resolution of Certain Issues” (hereinafter, “the
stipulated agreement”). Pertinent to the issues on appeal, the stipulated
agreement provided: (a) the parties shall split equally the cost of the child’s
extra-curricular activities; (b) the child would reside the majority of the time
with Former Wife, specifically providing that “[t]his majority designation is
SOLELY for purposes of all other state and federal laws which require such
a designation”; (c) Former Husband shall pay Former Wife $800 per month
in child support, commencing August 1, 2020, and terminating September
30, 2022; (d) Former Wife would maintain health insurance for the child; (e)
Former Husband would provide Former Wife with moving expenses upon the
sale of the marital home, and Former Wife would refile the parties’ 2018 and
2019 tax returns as “married filing jointly”; (f) Former Husband shall return to
4 the marital home upon Former Wife’s vacating it to retrieve items included
on an attached exhibit list, excluding the items Former Wife sold for
temporary financial relief; 2 and (g) Former Husband shall pay Former Wife
$3,000 per month in permanent periodic alimony, commencing August 1,
2020. No agreement was reached on the issues of attorney’s fees and
equitable distribution. Attached to the stipulated agreement was a child
support guidelines worksheet and a list of items contained in the marital
home for Former Husband to retrieve. The child support guidelines included
the parties’ stipulated net monthly incomes: $4,744 for Former Husband and
$3,990 for Former Wife, which included the alimony payment.
The trial court entered an order approving the parties’ stipulated
agreement. Following trial, the trial court entered an “Order on Trial,”
explaining the state of the evidence and the proceedings and noting that it
was prepared to make final rulings on some issues but reserve on others.3
Specifically, the court noted that it had received substantial evidence on time-
sharing, the valuation of Former Husband’s businesses, and the value of the
2 At the hearing on temporary relief, Former Wife testified that she was forced to sell some items in the marital home in order to support herself and the child, as Former Husband’s temporary support—an apparent agreement to pay her $335 per week for both her and the child—was inadequate. 3 Of the two trial hearings set, only one took place.
5 parties’ stock, and as such, was prepared to make a final ruling on those
issues. The remaining issues included equitable distribution, post-filing debts
of the Former Wife, retroactive alimony and child support, marital debt, and
marital assets. The trial court suggested that written arguments, including
summaries of the parties’ exhibits, could be filed to resolve the outstanding
issues if the parties desired to complete the litigation in an efficient and timely
manner.
Soon thereafter, Former Wife filed two motions for contempt, alleging
that Former Husband had been late paying his child support and alimony
payments based upon the stipulated agreement. She also alleged that he
was not paying his half of the child’s extra-curricular expenses. Former Wife
specifically requested the trial court require Former Husband’s future support
payments be made through the State Disbursement Unit via an income
deduction order.
In response to the trial court’s “Order on Trial,” the parties agreed to
file trial memorandums in lieu of a second hearing. After the parties’
submitted their written memoranda, the trial court entered an order titled
“Final Rulings on Reserved Issues and Order for Final Judgment.” The trial
court addressed the parties’ finances during the course of the marriage and
separation, noting that Former Wife’s role was to raise their children and
6 Former Husband’s to provide financially for the family. It found that while
Former Wife had claimed a lack of sufficient support post-separation for both
herself and the child, the evidence also showed that Former Wife had spent
her money on “things that [were] not necessities.” Still, the court found that
Former Husband had left Former Wife with “no support” for certain periods
of time.
As to Former Husband’s income, the court adopted the findings in the
forensic accounting report, namely, that he had “shut down” the two jointly
owned businesses on the “eve of the divorce filing” only to reopen two new
(but identical in nature) businesses thereafter. The trial court also provided
a chart of Former Husband’s monthly business income based on the forensic
accounting.
The trial court adopted and ratified both the consent temporary order
and the stipulated agreement. It found that after monthly child support and
alimony, Former Husband’s net monthly income was $3,944 and Former
Wife’s was $4,790; it also noted that Former Wife had begun generating her
own income by way of her recent property management position.
With respect to retroactive alimony and child support, the trial court
ruled, “The Court finds for the Husband as stated in the Husband’s trial
memorandum and will not order retroactive alimony and support in light of
7 the other rulings within this order.” As to attorney’s fees, the court ruled, “The
Court finds for the Husband and adopts the argument and rational[e] found
in . . . Husband’s trial memorandum.” And on the parties’ tax liabilities, it
likewise found for Former Husband “as stated in [his] pre-trial memorandum
for each year.” The court ordered that the costs of the social investigation
and forensic accounting be equally divided between the parties. The trial
court requested Former Husband to file a proposed final judgment
incorporating the rulings made therein, and if the parties could not agree on
equitable distribution, each party could file their own proposed worksheet.
Prior to entry of a final judgment, Former Wife filed a motion for
rehearing and an objection to Former Husband’s proposed final judgment. 4
The motion for rehearing was denied and a final judgment entered, which
incorporated the trial court’s earlier rulings, ordered the parties to alternate
the dependency tax exemption, and included an equitable distribution
worksheet.
After entry of the final judgment, Former Husband moved for rehearing,
wherein he addressed the following aspects of the trial court’s rulings: (1)
apportionment of the parties’ tax liabilities and payments; (2) credits for
4 Former Wife requested the court to reopen the evidence and hold a hearing to resolve the parties’ conflicting equitable distribution worksheets.
8 payments toward Former Wife’s medical bills and the child’s medical bill; (3)
credit for an unauthorized charge of his credit card; (4) credit for payment
toward the forensic accounting cost; and (5) the determination that his
businesses were marital property. In response, Former Wife filed an
amended motion for rehearing, which requested the following: (1) remove
the 2019 tax liability from equitable distribution, as such liability was non-
marital; (2) require Former Husband to secure life insurance for his support
obligations; (3) deny Former Husband’s request relating to an unauthorized
charge of his credit card; (4) revisit the ruling on the dependency tax
exemption; and (5) require Former Husband’s support payments be made
through the State Disbursement Unit via income deduction order. The trial
court ordered Former Wife to file a response addressing Former Husband’s
motion for rehearing.
In her response, Former Wife addressed the tax liabilities, explaining
that the final judgment adopting Former Husband’s calculations were
incorrect because he used the parties’ “married filing separately” tax returns,
despite the agreement to refile as “married filing jointly.” She again sought
removal of the 2019 tax liability, arguing that it was non-marital. Former Wife
included what she asserted were the proper calculations when considering
the parties’ “married filing jointly” returns; attached to her response was a
9 spreadsheet completed by the parties’ accountant, who had always
completed their taxes. She also attached an updated equitable distribution
worksheet reflecting the proper tax liabilities and removal of the 2019 taxes.
The trial court entered an order adopting Former Wife’s arguments
relating to the tax liabilities but denied all other relief. No amended final
judgment or equitable distribution worksheet was entered. Former Wife
timely appealed, and Former Husband cross-appealed.
For purposes of simplicity, we begin with Former Wife’s argument
regarding removal of the $1,686.94 credit awarded to Former Husband in the
equitable distribution worksheet, which represented auto insurance
payments on behalf of Former Wife. On appeal, as she did below, Former
Wife asserts that her auto insurance was paid for by Former Husband’s
business credit card for the majority of the proceedings, but he stopped
paying and disputed the charges on that card. As a result she was forced to
pay for her auto insurance and the charges to his credit card were reversed.
Thus, Former Wife contends that assigning an insurance payment of
$1,686.94 to her in equitable distribution resulted in her having to pay that
expense twice. Former Husband concedes that the trial court erred in
awarding him credit for that amount. As such, we remand to the trial court
10 with instructions to remove that credit from equitable distribution and
recalculate accordingly.
Next, we turn to Former Wife’s argument that the trial court erred by
failing to address her request for Former Husband to maintain life insurance
to secure his support obligations. A trial court’s decision on whether to
require a party to maintain life insurance to secure support obligations is
reviewed for an abuse of discretion. See Jimenez v. Jimenez, 211 So. 3d 76,
79 (Fla. 4th DCA 2017) (citation omitted). Section 61.08 provides:
To the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a life insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.
§ 61.08(3), Fla. Stat. (2020).
Former Wife had requested such relief in her counter-petition, trial
memorandum, and motion for rehearing. She highlighted Former Husband’s
testimony that he already had a $1,000,000 life insurance policy, and she
requested only a $500,000 policy. While Former Husband maintained that
he had already been struggling to afford his current policy, the trial court
failed to rule on Former Wife’s request. Therefore, we remand this issue for
resolution. See Barrett v. Barrett, 313 So. 3d 224, 229–30 (Fla. 5th DCA
2021); Duffey v. Duffey, 972 So. 2d 290, 291–92 (Fla. 5th DCA 2008).
11 We next address Former Wife’s contention that the trial court erred by
failing to require Former Husband to make his support payments through the
State Disbursement Unit via an income deduction order. Initially, it should be
noted that the parties’ stipulated agreement specifically provided that both
alimony and child support would be paid directly to Former Wife rather than
through the State Disbursement Unit. However, the record reveals that
Former Wife filed two motions for contempt alleging that Former Husband’s
support payments were late and deficient; in those motions, she requested
that Former Husband’s future support payments “be paid through the State
Disbursement Unit by way of [an] Income Deduction Order.”5 Although she
never obtained a ruling on those motions, she again requested such relief in
her trial memorandum and raised the issue once more in her motion for
rehearing. The final judgment is silent on the issue.
Section 61.1301 governs income deduction orders and provides, in
relevant part:
(1) Issuance in conjunction with an order establishing, enforcing, or modifying an obligation for alimony or child support.--
(a) Upon the entry of an order establishing, enforcing, or modifying an obligation for alimony, for
5 Former Wife also alleged that Former Husband had failed to reimburse her for his half of the child’s extra-curricular activities, which was also agreed upon in the stipulated agreement.
12 child support, or for alimony and child support, other than a temporary order, the court shall enter a separate order for income deduction if one has not been entered.
§ 61.1301(1)(a), Fla. Stat. (2020).
While the “statute is mandatory,” Seith v. Seith, 337 So. 3d 21, 26 (Fla.
4th DCA 2022), the parties were free to contract otherwise. See Lester v.
Lester, 736 So. 2d 1257, 1259 (Fla. 4th DCA 1999) (observing that, while
parents may not “contract away” their child’s right to support, they are not
precluded from “making contracts or agreements concerning their child’s
support so long as the best interests of the child are served” (citations
omitted)). However, with allegations of Former Husband’s failure to strictly
comply with the terms of the stipulated agreement, the trial court should have
addressed the issue in the final judgment. Accordingly, we remand for further
consideration of Former Wife’s request for an income deduction order.
We now turn to Former Wife’s argument that the trial court erred in
failing to consider her specific request for an award of attorney’s fees
incurred as a result of Former Husband’s bad faith conduct. She argues that
the trial court’s ruling focused only on the parties’ needs and ability to pay.
Former Wife contends that the following circumstances amount to bad faith
conduct, causing her to incur additional attorney’s fees: Former Husband
misrepresented his income, filed incorrect financial affidavits, falsely claimed
13 he had been paying taxes, requiring the retention of a forensic accountant to
determine his actual income; he closed jointly owned bank accounts on the
“eve of litigation”; he failed to fully support her and the child based on his
misrepresented income; he sought 50/50 timesharing despite the social
investigation’s findings that he did not have a close relationship with the child;
and he showed a “lack of candor” in describing the disposition of the parties’
silver and gold in his trial memorandum.
Although the trial court technically ruled on Former Wife’s request for
attorney’s fees, it did so by simply “adopt[ing] the argument and rational[e]”
advanced in Former Husband’s trial memorandum. However, Former
Husband’s trial memorandum focused exclusively on the parties’ financial
resources, need and ability to pay, and the notion that both parties will be on
equal footing after equitable distribution and support awards. While it is true
that an award of attorney’s fees is generally inappropriate when the
requesting spouse has the ability to pay in light of equitable distribution and
alimony, that does not necessarily preclude the trial court from exercising its
discretion to order a spouse to pay a portion of fees based on bad faith
conduct. See Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) (noting that,
while parties’ financial resources are primary factor to consider in
determining fee award, other relevant circumstances may be considered,
14 including bad faith conduct); see also Kelly v. Kelly, 925 So. 2d 364, 368
(Fla. 5th DCA 2006) (remanding dissolution judgment for trial court to award
former wife larger fee award based on former husband’s numerous bad faith
litigation tactics even where former wife had ability to pay her own fees after
dissolution).
Because the trial court failed to address Former Wife’s basis for an
award of attorney’s fees, we remand for further consideration. See Sumlar v.
Sumlar, 827 So. 2d 1079, 1085 (Fla. 1st DCA 2002) (“Appellant argued that
Appellee’s own conduct in allegedly hiding or squandering assets and
refusing to disclose certain requested information during discovery
prolonged the litigation and caused her to incur additional attorney’s fees.
The trial court made no findings regarding Appellee’s acts or omissions in
this regard.”).
Former Wife also argues that the trial court erred in failing to award
retroactive child support. “A trial court’s denial of retroactive child support is
reviewed for an abuse of discretion.” Johnson v. Johnson, 297 So. 3d 700,
704 (Fla. 1st DCA 2020) (citing § 61.30(17), Fla. Stat.). “Although we review
a trial court’s award of child support for an abuse of discretion, a trial court’s
decisions concerning support must be supported by competent substantial
evidence and factual findings sufficient to enable this Court to determine how
15 the trial court made the decisions it did.” Lennon v. Lennon, 264 So. 3d 1084,
1085 (Fla. 2d DCA 2019) (citations omitted).
Section 61.30 provides in relevant part:
(17) In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, 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, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:
(a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor’s demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period.
(b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
(c) The court should consider an installment payment plan for the payment of retroactive child support.
§ 61.30(17)(a)-(c), Fla. Stat. (2020).
Former Wife argues that the trial court should have awarded $9,658.68
in retroactive child support based on her calculations of what Former
16 Husband had paid throughout the proceedings. Specifically, she contends
that Former Husband “swore under oath” that he was making $335 weekly
payments for both her and the child, and she relied on those numbers to
calculate the retroactive support figure. In his argument against an award of
retroactive child support, Former Husband claimed that he had already
overpaid his support obligations during the retroactive period because he
had been paying the full $335 per week solely for the child, amounting to
$25,125. Former Wife asserts that Former Husband should be precluded
from recharacterizing the $335 payment as only for the child to avoid paying
retroactive support.
In ruling on retroactive child support, the trial court once again merely
adopted the argument articulated in Former Husband’s trial memorandum.
However, the trial memorandum inadequately described the state of the
retroactive payments made and provided no insight, calculations, or analysis
as to how he arrived at the figures articulated. As a result, we find the trial
court’s adoption of Former Husband’s argument resulted in a lack of specific
factual findings in the final judgment on this issue. See Lennon, 264 So. 3d
at 1085. Moreover, Former Husband acknowledged throughout the
proceedings that the $335 weekly support payments were to be split between
Former Wife and the minor child. It was disingenuous for Former Husband
17 to characterize his $25,125 in support payments as being solely for child
support. Thus, on remand, the trial court should revisit its ruling on retroactive
child support and render appropriate findings of fact. See Davies v. Turner,
802 So. 2d 1195, 1195 (Fla. 1st DCA 2002) (reversing dissolution judgment
and remanding for trial court to “explain how it reached its [retroactive child
support award] or to conduct further proceedings on this matter”); see also
Miller v. Miller, 826 So. 2d 480, 482 (Fla. 1st DCA 2002) (finding that trial
court’s rationale for declining to order retroactive child support lacked
sufficient findings and failed to explain its decision).
Finally, we address Former Wife’s challenge to the trial court’s ruling
that the parties alternate the dependency tax exemption for their minor child.
We review the trial court’s decision for an abuse of discretion. See Vick v.
Vick, 675 So. 2d 714, 719 (Fla. 5th DCA 1996); see also Salazar v. Salazar,
976 So. 2d 1155, 1158 (Fla. 4th DCA 2008). While the custodial parent is
presumptively entitled to the dependency tax exemption, the trial court has
discretion to transfer the exemption to the noncustodial parent. Vick, 675 So.
2d at 719; Abramovic v. Abramovic, 188 So. 3d 61, 64 (Fla. 4th DCA 2016).
Former Wife contends that the parties’ stipulated agreement, which
provided that their minor child would reside with her the majority of the time,
rendering her the primary custodian, had the effect of assigning her the
18 dependency tax exemption. She further argues that child support was
calculated based on her having the exemption, and the trial court’s decision
to require the parties to alternate was not only contrary to the parties’
agreement, but also had the effect of modifying the amount of support
available to her. While Former Wife’s argument is well taken, our review of
the record indicates that her pre-trial statement, filed after entry of the
stipulated agreement, explicitly noted that the dependency tax exemption
was an issue of fact for the trial court’s determination. As such, any error in
the trial court’s ruling on this issue was self-inflicted.
In summary, as to the Former Wife’s appeal, we reverse and remand
the final judgment of dissolution with instructions for the trial court to (1)
remove the $1,686.94 car insurance credit from Former Husband’s column
in the equitable distribution worksheet and recalculate equitable distribution;
(2) rule on Former Wife’s request for Former Husband to maintain a life
insurance policy to secure his alimony payments; (3) address the potential
need for entry of an income deduction order requiring Former Husband’s
future support payments be made through the State Disbursement Unit; (4)
rule on Former Wife’s request for attorney’s fees based upon Former
Husband’s alleged bad faith conduct; and (5) revisit its ruling on retroactive
19 child support. 6 We affirm the trial court’s ruling on the dependency tax
exemption.
Turning to Former Husband’s cross-appeal, he argues that the trial
court committed several errors in its equitable distribution scheme. A trial
court’s equitable distribution scheme is reviewed for an abuse of discretion,
and the “distribution of marital assets, whether equal or unequal, must be
supported by factual findings based on substantial competent evidence.”
Moses v. Moses, 46 Fla. L. Weekly D2065, D2066 (Fla. 5th DCA Sept. 17,
2021).
First, Former Husband contends that the trial court erred by unequally
apportioning the parties’ tax liabilities in its initial equitable distribution
worksheet and further erred when it amended its ruling by adopting Former
Wife’s proposed tax distribution articulated in her response to his motion for
rehearing. Specifically, Former Husband argues that Former Wife’s
spreadsheet attached to her response is hearsay and insufficient evidence
to support the trial court’s ruling with respect to the 2017 and 2018 tax
6 We express no opinion on the merits of Former Wife’s requests for life insurance, an income deduction order, an attorney’s fees award based on bad faith conduct, and retroactive child support. Our reversal is based solely upon the failure to either address or make sufficient factual findings on these issues.
20 liabilities. Additionally, he contends it was error to remove the 2019 tax
liability as non-marital.
Former Wife’s response to Former Husband’s motion for rehearing
provided the trial court with a spreadsheet prepared by the parties’
accountant, which outlined the parties’ payments and liabilities for 2017 and
2018 when filed as “married filed jointly.” We find that the parties’
acquiescence to the procedures utilized in this case precludes reversal.
During the second phase of this trial, the rules of evidence were, for all
intents and purposes, an afterthought. That is not necessarily good or bad.
It can be a cost-effective manner for both sides, but when the parties choose
to take that path, they cannot later complain where it leads. In this case, the
parties stipulated to filing their respective memoranda in lieu of holding a
second final hearing, and the trial court was permitted to consider their filings
as additional evidence on the various outstanding issues. Both sides, without
objection, presented evidence and related arguments in their memoranda
and again in their motions filed after the trial court’s initial order on “reversed
issues.” Former Wife’s tax spreadsheet was consistent with how the
21 presentation of evidence occurred in this case. As a result, we decline to
reverse the trial court’s treatment of the parties’ 2017 and 2018 tax liabilities. 7
As to the 2019 tax liability, the trial court agreed with Former Wife that
such liability was non-marital, as it was incurred after the date of filing—
February 2019. We find that the trial court did not abuse its discretion by
removing the 2019 tax debt from the equitable distribution worksheet. See §
61.075(7), Fla. Stat. (2020) (providing that “cut-off” date for determining
whether liabilities are marital is “the date of the filing of a petition for
dissolution of marriage”). Thus, we also affirm that aspect of the trial court’s
equitable distribution. 8
Next, Former Husband argues that the trial court erred in equitably
distributing the balances in the Wells Fargo and Vystar business accounts,
as the funds in those accounts were used to pay down credit card debt, which
was accumulated by paying the mortgage, insurance, utilities, and other
7 Notably, under Former Wife’s updated equitable distribution worksheet adopting the tax spreadsheet figures, Former Husband’s equalizing payment was reduced by approximately $8,000. 8 In light of our disposition, we need not address Former Husband’s argument relating to the trial court’s initial ruling on the parties’ tax liabilities, which was based upon “married filing separately” returns. The trial court’s decision to use “married filing jointly” returns was consistent with the parties’ stipulated agreement.
22 expenses for the benefit of Former Wife. On this issue, we agree with Former
Wife that Former Husband’s appellate argument—that the business account
balances should not have been equitably distributed because it would result
in him paying Former Wife twice—was not the argument made below. See
Sciame v. Sciame, 215 So. 3d 190, 191–92 (Fla. 2d DCA 2017) (rejecting
former husband’s appellate argument regarding supposed error in equitable
distribution where former husband “changed his position and argue[d] for the
first time” an argument not presented below). In any event, Former
Husband’s argument on appeal is insufficient to demonstrate that the trial
court abused its discretion in equitably distributing the business accounts.
Former Husband next argues that the medical bills included in
equitable distribution—$4,608.81 (Former Wife’s bill) and $2,225.20 (the
child’s bill)—were paid in full by him, such that “the balances were both at
zero prior to the entry of the [final judgment].” On appeal, Former Wife
concedes that Former Husband had made payments toward the child’s
medical bill, requiring adjustment of the equitable distribution worksheet. As
she did below, Former Wife acknowledges that her column should reflect a
debt of only $2,064, and Former Husband’s column should reflect a debt of
$1,508. On remand, the trial court should recalculate the equitable
distribution accordingly.
23 However, as to Former Wife’s medical bill—$4,608.81—not only does
Former Husband provide no record support for his assertion that he had paid
this debt down to zero, but his trial memorandum never alleged that such
debt had been fully paid off. Instead, his trial memorandum simply requested
the trial court to equitably divide Former Wife’s medical bill. Accordingly, we
leave undisturbed the trial court’s ruling on Former Wife’s medical bill.
We agree with Former Husband’s next argument—that the trial court
erred by failing to credit him with a $2,000 payment he made toward the
forensic accounting cost. Relevant to this issue is the trial court’s consent
temporary order, which provided that Former Husband would pay the initial
$2,000 retainer fee, and the trial court would later equally apportion the cost
of the forensic accountant’s evaluation. A review of the equitable distribution
worksheet appears to show that Former Husband did not receive a credit for
his initial $2,000 payment toward the later-determined total cost of
$11,155.50. As such, on remand, the equitable distribution worksheet should
be recalculated to reflect that credit.9
Former Husband argues that the trial court erred in its distribution of
the value of several items of personal property that were located in the
9 We reject Former Husband’s challenge to the treatment of the social investigation cost as unpreserved.
24 martial home, which, according to him, were “looted” by Former Wife. Former
Husband asserts that the final judgment and equitable distribution worksheet
“provided nothing in terms of the value of the items [Former Wife] took,
secreted, and kept or sold.” We reject Former Husband’s claim for many
reasons. First, the issue was not raised in his motion for rehearing. See
Moody v. Newton, 264 So. 3d 292, 294 (Fla. 5th DCA 2019) (finding former
wife’s challenge to trial court’s valuation of marital property unpreserved for
appeal where former wife’s motion for rehearing “failed to raise any issue
with these particular assets” (citing Hentze v. Denys, 88 So. 3d 307, 311
(Fla. 1st DCA 2012))). Additionally, the record demonstrates that the parties
had stipulated to the distribution of their marital assets within the home, and
Former Husband’s trial testimony failed to demonstrate which items he was
otherwise entitled to but did not receive. Moreover, he never provided the
trial court with any valuation of the personal property for the trial court to rely
upon. See Simmons v. Simmons, 979 So. 2d 1063, 1064 (Fla. 1st DCA 2008)
(“The judge could not have made findings of value based on anything other
than the evidence presented by the parties, and the parties did not present
evidence of value for many of the major assets included in the equitable
distribution.”).
25 Finally, Former Husband argues that the trial court erred by failing to
provide him a credit in equitable distribution for his post-separation debt of
$33,922.10, incurred to keep current with his support obligations, even
though Former Wife’s post-separation debt of $16,660 was included.
However, after the trial court entered its equitable distribution worksheet,
Former Husband’s motion for rehearing wholly failed to address any error
with respect to the trial court’s factual findings on the parties’ post-separation
debt. Once again, his argument is unpreserved.
Still, the trial court’s findings were sufficient to justify the inclusion of
only Former Wife’s post-separation debt in equitable distribution. See §
61.075(1), Fla. Stat. (providing a list of factors for trial court to consider as
justification for unequal distribution, including, but not limited to, economic
circumstances of parties; duration of marriage; contribution of each spouse
to incurring liabilities; and “any other factors necessary to do equity and
justice between the parties”). Here, the trial court’s decision to include
Former Wife’s post-separation debt was based upon the following findings:
This is a credit card the Former Wife used to pay living expenses during the dissolution. Former Wife was a stay-at-home mother and did not have the funds necessary to support herself and the minor child. Former Husband’s support was inadequate and inconsistent. He had a continuing duty to support his Former Wife, his child, and the marital estate. The court has noted the substantial support payments
26 from the Former Husband to the Former Wife and has noted that support was inadequate for certain periods of time. This obligation is being included in the Former Wife’s column for equitable distribution in the amount of $16,660.
Under the circumstances of this case, we cannot conclude that the trial
court abused its discretion by including Former Wife’s post-separation debt
into the equitable distribution worksheet, as she had been a stay-at-home
mother for the entirety of the marriage and had little financial stability post-
separation. See Knecht v. Palmer, 252 So. 3d 842, 846 (Fla. 5th DCA 2018)
(noting that, while best practice is for trial court to address all applicable
factors, unequal distribution may be affirmed where court’s findings
demonstrate that doing so was required to do equity in case).
Accordingly, as to the Former Husband’s cross-appeal, on remand, the
trial court shall recalculate equitable distribution with attention given to the
credits and debts relating to the child’s medical bill and Former Husband’s
credit toward the forensic accounting cost. Otherwise, we affirm on all other
issues raised by Former Husband.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR
FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
EVANDER, COHEN and WALLIS, JJ., concur.