Smoot v. Smoot

• Court: District Court of Appeal of Florida
• Decided: June 12, 2024
• Docket: 2023-0698
• Status: Published

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D2023-0698 _____________________________

KENNETH HENRY SMOOT,

Appellant,

v.

LUZ MINERVA SMOOT,

Appellee. _____________________________

On appeal from the Circuit Court for Santa Rosa County. J. Scott Duncan, Judge.

June 12, 2024

PER CURIAM.

Kenneth Henry Smoot seeks review of the final judgment dissolving his marriage to Luz Minerva Smoot. On appeal, he raises several arguments. Only one merits discussion.

Below, the trial court included one of Mr. Smoot’s First National Bank of Omaha CD accounts in the equitable distribution schedule. But assets that are acquired separately by one party before the marriage are nonmarital assets. § 61.075(6)(b)1., Fla. Stat. (2020). Here, the unrebutted evidence established that Mr. Smoot acquired the account ten years before he married Ms. Smoot and maintained sole control over it during the marriage. There was no evidence of any circumstances that would transform this nonmarital asset into a marital asset. See Street v. Street, 303 So. 3d 1253, 1257 (Fla. 2d DCA 2020) (holding that the husband’s stocks acquired prior to the marriage were nonmarital and did not become marital in the absence of evidence of enhancement, commingling, or an intent to gift them to the wife). Therefore, the trial court erred in classifying the account as marital property subject to equitable distribution. Under these circumstances, the final judgment is reversed to allow the trial court to remove this asset from the distribution schedule and adjust the schedule accordingly. Otherwise, the judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS, RAY, and KELSEY, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

E. Jane Thorsen and Therese Felth McKenzie of McKenzie Law Firm, Pensacola, for Appellant.

Luz Minerva Smoot, pro se, Appellee.