Smith v. Smith

934 So. 2d 636, 2006 WL 2135877
District Court of Appeal of Florida·Decided August 2, 2006·No. 2D04-3443·Published·Cited by 11 cases

Opinion

934 So.2d 636 (2006)

Gillian J. SMITH, Appellant,
v.
Michael SMITH, Appellee.

No. 2D04-3443.

District Court of Appeal of Florida, Second District.

August 2, 2006.

*638 Mark A. Neumaier, Tampa, for Appellant.

Corinda Luchetta, St. Petersburg, for Appellee.

FULMER, Chief Judge.

In this appeal Gillian Smith, the Wife, challenges several items in the equitable distribution scheme found in the trial court's Amended Final Judgment of Dissolution of Marriage, as well as the overall unequal distribution in favor of the Husband, Michael Smith. Because several distributions are not supported by evidence in the record, we reverse and remand for the trial court to reconsider the distribution scheme.

The parties were married for about thirteen years at the time of their separation in March 2003. The Husband served in the Navy before and during the marriage and accrued a pension. Both parties took out education loans during the marriage, which had balances as of the time of dissolution. Other assets and liabilities included real property and mortgages thereon, vehicles, credit card and other debt, and 401(k) plans. At issue in this appeal are the trial court's equitable distribution rulings regarding the Husband's Navy pension, the education loans, certain credit card debts, mediation fees, and the overall unequal distribution in favor of the Husband.

We review the trial court's distribution of marital assets and liabilities for abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). "The final distribution of marital assets ... must be supported by factual findings based on substantial competent evidence." Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004); § 61.075(3), Fla. Stat. (2003). "[W]hile appellate courts are reluctant to disturb the findings and judgments of a trial court, particularly in respect to financial awards in marital cases, it nevertheless becomes [the court's] duty to do so when an award is clearly not supported by substantial, competent evidence." DeHart v. DeHart, 360 So.2d 1285, 1286 (Fla. 2d DCA 1978).

The overall equitable distribution scheme

At the conclusion of the dissolution hearing, the trial court asked the parties to submit written closing arguments. The parties did so, each attaching a proposed equitable distribution scheme. The Husband's proposed scheme omitted the three credit card balances in controversy and the parties' respective education loan balances. The Husband's proposal resulted in a positive balance of $6,710.62 in the Wife's favor, which the Husband proposed be equalized by a payment from the Wife to the Husband in the amount of $3,355.31.

The court adopted much of the Husband's proposed scheme in its Amended Final Judgment, but also made the following changes: (1) two small assets were moved from the Husband's column to the Wife's column; (2) the controversial credit card balances were allocated to the Wife's column; and (3) each party's education loan balance was allocated to his or her respective column. The court's distribution resulted in a disparity of $16,302.14 in the Husband's favor.[1] Inexplicably, however, *639 the court also adopted the Husband's equalization payment of $3,355.31, Wife to Husband, thus further increasing the differential in the Husband's favor.[2] The court did not state a reason for adopting this equalization figure or for making an unequal distribution. After a thorough review of the record, we are uncertain whether the trial court intended an unequal distribution in the Husband's favor in a specific amount or whether the court intended an equal distribution but made one or more miscalculations.

The initial premise behind an equitable distribution of marital assets and liabilities is equal distribution. § 61.075(1). "However, where a justification is shown, a trial court may make an unequal distribution." Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003). And, "[t]he final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence." Guida, 870 So.2d at 224 (emphasis added). The "specific written findings of fact" are to include findings that "advise the parties or the reviewing court of the trial court's rationale for the distribution ...." § 61.075(3)(d). Even when the court determines that an unequal distribution is warranted, the court "must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be shortchanged." Feger, 850 So.2d at 615 (citations and internal quotation marks omitted).

Here, although the trial court stated findings to support its allocation of individual assets and liabilities, it did not include explicit findings to support the overall disparity of the equitable distribution scheme or the extra "equalization" payment that further reduced the Wife's column. On remand, after addressing the errors we discuss below, the trial court shall reconsider the overall distribution scheme. If the court determines that an unequal distribution is warranted, the court must include in its order factual findings that justify the unequal distribution.[3]

Husband's Navy pension

The trial court found that the Husband served in the Navy for twenty years, including nine years and seven months during his marriage to the Wife. At the dissolution hearing, the Husband offered into evidence an exhibit titled "Present Value of Wife's Share of Husband's Military Retirement Pay." The Husband testified that he calculated the value on his own, using an IRS life expectancy table and a computer. The Wife objected on the ground that the Husband was not an actuary *640 and that it was her view that the Husband's lawyer did the actual calculations and was having the Husband testify to them. The court accepted the Husband's calculation as a demonstrative aid, but not as evidence, and stated that "it will not have the same weight as evidence, however, I will use it to arrive at a decision." Because, at this point, the hearing was in its last stages, the court ordered the parties to submit closing arguments in writing and advised the Wife that she could include her own calculation of present value as a demonstrative aid if she wished to oppose the Husband's calculation.

The Wife's closing argument did not include a present value calculation of the pension or even a value for or allocation of the pension in her proposed equitable distribution chart. The Wife focused her argument on the use of the deferred-distribution method of distributing her share of the pension, as opposed to the Husband's proposed immediate-offset method. The court accepted the Husband's calculation and ordered that "[t]he Husband is awarded his Navy pension, which has a present value of $26,341.00." On appeal, the Wife argues (1) that the Husband's pension figure was actually that of the Wife's share of the pension only and that therefore the equitable distribution scheme, by omitting the Husband's share, was skewed in the Husband's favor by an even greater amount than that already reflected in the bottom line, and (2) that the Husband's present value calculation, not performed by an expert, was arbitrary.

In the Amended Final Judgment, the trial court makes a factual finding that "the marital value of the Husband's Navy pension is $26,341." However, the trial court also refers to the $26,341

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Smith v. Smith, 934 So. 2d 636, 2006 WL 2135877 (Fla. Ct. App. 2006).

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