Wendroff v. Wendroff

614 So. 2d 590, 18 Fla. L. Weekly Fed. D 549
CourtDistrict Court of Appeal of Florida
DecidedFebruary 17, 1993
Docket91-2884
StatusPublished
Cited by18 cases

This text of 614 So. 2d 590 (Wendroff v. Wendroff) 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
Wendroff v. Wendroff, 614 So. 2d 590, 18 Fla. L. Weekly Fed. D 549 (Fla. Ct. App. 1993).

Opinion

614 So.2d 590 (1993)

Marvin WENDROFF, Appellant,
v.
Carol WENDROFF, Appellee.

No. 91-2884.

District Court of Appeal of Florida, First District.

February 17, 1993.

*591 David G. White, Cedar Key, for appellant.

S. Scott Walker of Watson, Folds, Steadham, Christmann, Brashear, Tovkach & Walker, Gainesville, for appellee.

ZEHMER, Judge.

Marvin Wendroff, the former husband, appeals a final judgment dissolving his marriage to Carol Wendroff. The appeal contests the trial court's distribution of marital assests and the amounts of alimony and child support awarded on grounds that the record does not contain competent, substantial evidence to support several findings of fact underlying these rulings.

On October 25, 1989, Mrs. Wendroff filed a petition for separate maintenance, alleging that she and the parties' children were living separately from Mr. Wendroff. On May 3, 1990, appellant filed an answer to *592 Mrs. Wendroff's petition and a counterpetition for dissolution of marriage, seeking a final judgment dissolving the parties' marriage and determining the primary physical residence of their children. Mrs. Wendroff subsequently filed her first amended petition for dissolution of marriage in which she sought similar relief, including equitable distribution of the parties' assets and liabilities, and an award of temporary and permanent child support and alimony, attorney's fees and exclusive possession of the parties' Gainesville residence. The matter was tried in two separate hearings in April and May 1991.

The appealed judgment ordered, among other things, that Mrs. Wendroff maintain the children's primary physical residence, that both parties share parental responsibility for raising their children, and that appellant pay to Mrs. Wendroff $800 per month for child support and $750 per month for permanent periodic alimony. In distributing the marital assets, the court ordered that 500 bubble gum machines be distributed to Mrs. Wendroff and that she have the right to determine the location of these machines. Jurisdiction was reserved to award attorney's fees and costs for Mrs. Wendroff's attorney, and the court later entered an order awarding fees and costs.

Appellant raises a number of issues on his appeal from the final judgment. It is apparent from our review of the record that the parties' conduct of the trial and presentation of evidence was more confusing than helpful to the trial court, and we sympathize with that court's efforts to correctly resolve the disputed issues on the record so made. However, we conclude it is necessary to reverse the disposition of marital assets and the awards of alimony and child support and remand for further proceedings.

I.

First, appellant contends that certain findings of fact in respect to the 500 bubble gum machines awarded to Mrs. Wendroff as marital assets are not supported by any evidence of record. In respect to this award, the trial court made specific findings to the effect that 400 bubble gum machines owned by appellant during the marriage had been sold by him to Diane Grogan, his current girl friend; that Ms. Grogan admits that she has invested no money in that vending machine business and that appellant sold these 400 machines to her for no money; that another 100 machines purchased during the marriage are still "titled" in appellant's name; and that at the time of the final hearing appellant had bubble gum machines placed in various locations in Leon, Jefferson, Columbia, Union, Madison, Bradford, Duval, Hillsborough, Pasco, Hernando and other counties. Based on these findings, the trial court attributed a value of $32,000 to the 400 machines that appellant purportedly sold to Ms. Grogan, and attributed $8,000 in value to the 100 machines found to be still "titled" in appellant's name. The trial court ordered that 500 machines be distributed to Mrs. Wendroff, and provided further that any other machines owned by appellant shall continue to be owned exclusively by him.

The parties' evidence on this issue was confusing at best, in part because appellant apparently had not adequately complied with certain discovery requests. The transcribed testimony and the parties' arguments in their appellate briefs indicate that the locations and numbers of machines owned by Mr. Wendroff, and their total value, varied significantly between the only relevant time, i.e., appellant's filing of the initial petition for dissolution of marriage, and during the one-year period between the filing of the petition and the final hearing. The final judgment does not determine the number and locations of machines appellant owned at the time of filing of the petition, nor does it specify the number owned by appellant at any particular point in time. The parties' evidence at trial attempting to show an inventory of these machines was not limited to any particular point in time, and the wife's primary evidence of such inventory included machines apparently acquired just prior to the final hearing, well after the petition for dissolution *593 was filed.[1] We have been unable to derive an accurate and meaningful inventory of the machines from the record before us.

Section 61.075(6), Florida Statutes (1989), provides:

The date for determining marital assets and liabilities and the value of such assets and the amount of such liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage, unless the trial judge determines another date is just and equitable under the circumstances.

In Bauzon v. Bauzon, 588 So.2d 660, 661 (Fla. 1st DCA 1991), this court recently held with respect to this statutory requirement:

Under this statute, the valuation date is presumed to be the earliest of the date the parties enter into a valid separation agreement, another date expressly established by a valid separation agreement, or the date on which the petition for dissolution of marriage is filed. The statute also gives the trial court discretion to use another date for valuing the assets and liabilities, if the court determines that use of such other date is just and equitable under the circumstances and both the reason and the other date are stated in the final judgment. In order that an appellate court may provide adequate review to assure compliance with the requirements of section 61.075(4), we hold that unless the circuit court distributing marital assets in a final judgment of dissolution specifically identifies a valuation date of these assets that is different from the date of filing of the petition and also recites the specific circumstances and considerations that make the use of this date just and equitable, we shall presume that for such valuation, the circuit court was required to use the date of filing of the petition or the date the parties entered into a valid separation agreement, whichever is earlier, unless the record contains a specific written agreement executed and filed by the parties establishing a specific date of valuation.

It should also be noted that "[w]hen property valuation is an integral part of the court's entire plan of distribution, confusion as to value requires reversal of the property award." Ross v. Bandi, 566 So.2d 55, 56 (Fla. 4th DCA 1990). See also Saxton v. Saxton, 454 So.2d 575 (Fla. 4th DCA 1984).

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Bluebook (online)
614 So. 2d 590, 18 Fla. L. Weekly Fed. D 549, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wendroff-v-wendroff-fladistctapp-1993.