Smith Family Law Update: Week of March 20, 2017
Blair v. Blair: Fla 2nd DCA, March 22, 2017:
Trial court erred in aspects of valuation of marital portion of non-marital business, “dissipated assets”, as well as calculation of Husband’s income:
BUSINESS VALUATION:
- Several of Husband’s arguments were rejected by the appellate court as there was simply a difference of opinion between Husband’s expert and Wife’s expert and the trial court had discretion to choose which expert it found more credible.
- The parties did agree that the business was non-marital but that there had been an increase in the value of the company due to Husband’s efforts.
- Trial court erred in not including the business real property when valuing the company. While the change in value of the real property may have been due to passive factors (and the calculation of the marital portion of the non-marital business is dependent on an increase of value resulting from Husband’s marital labor under Florida Statutes 61.075(6)(a)(1)(b)), the failure to include the property owned by the business, which had depreciated during the marriage, resulted in an inflated valuation of the “marital portion” of the non-marital business. Even if some of the appreciation or depreciation of some of the assets of the business resulted from passive market forces, the overall appreciation of the business resulted from Husband’s marital labor, at least in part, and so the portion of the overall appreciation resulting from the marital labor was subject to equitable distribution.
- In valuing the business, trial court erred in including the retained earnings of the company while, at the same time, ordering that all retained earning be paid out the executives as part of equitable distribution. This constituted a double-dip.
DISSIPATED ASSETS:
Trial court erred in charging Husband in the distribution scheme with dissipation of assets where there was no evidence that there was misconduct in the dissipation. Here the record reflected that the use of these assets were indeed for living expenses and actually, in part, paying expenses of Wife.
INCOME:
While a company’s retained earnings can be included in calculating income if the earnings were retained for noncorporate purposes, such as to shield this income from the reach of the other spouse during dissolution, (the improper motive for its retention making it available “income”), the Wife in this case offered no evidence or theory that this was the case. As such, the trial court erred in counting the retained earnings as income for alimony and child support calculations.
***As a side note, Husband also challenged the Final Judgment as it had been entered 8 months after the respective counsels submitted written closing arguments and proposed Final Judgments. While the 2nd DCA found the delay troubling it was not per se a basis for reversal citing to McCartney v. McCartney.
Myrick v. Myrick: Fla 2nd DCA, March 24, 2017:
Trial court erred in awarding attorney’s fees to Father from Mother based upon, what the appellate court was forced to assume was, the inequitable conduct doctrine. The order lacked the proper findings of fact. However, the 2nd DCA went further and stated that the trial court also erred as Mother’s refusal to agree to an increase in timesharing did not constitute the type of behavior contemplated by the inequitable conduct doctrine.
Rebolledo v. Cordero: Fla. 3rd DCA, March 22, 2017:
Wife filed for divorce in June of 2011. Husband filed a counter-petition. Wife then filed a dismissal of her petition for dissolution. Wife did not file a response to the counter-petition for dissolution. Husband secured a default on April 23, 2012 on his counter-petition. Wife filed a motion to set aside the default which attached as exhibits a proposed answer and counter-claim. On the eve of the hearing on Wife’s motion, Husband dismissed his counter-petition.
Trail court erred in lifting the default and then subsequently awarding Wife temporary and back support ($50,000.00 a month and $668,037.00 respectively). The trial court did not have jurisdiction to provide any of this relief (lifting of default or temporary relief) after Husband voluntarily dismissed his counter-petition. The only pleading Wife could file after the entry of the default was a motion to set the default aside. The filing of the dismissal by Husband rendered that pending motion moot and the court no longer had jurisdiction.
Van Maerssen v. Gerdts: Fla. 4th DCA, March 22, 2017:
Trial court erred in awarding wife temporary “undifferentiated” spousal and child support ($6,500.00 a month). There should have been separate awards (temporary spousal support and child support). The undifferentiated nature of the support further compounded the 4th DCA’s inability to determine whether the award was supported by the evidence presented.
Bernard v. Bernard: Fla. 4th DCA, March 22, 2017:
Former Husband, in violation of court order did not transfer his 401K to his Wife. Instead he withdrew the money, gave none to his Wife, and also failed to pay her support. Trial court found Husband in contempt, ordered that Husband pay Wife a specified amount in 30 days or the court would issue a writ of arrest and commitment and 179 days of incarceration. Trial court erred only in its decision regarding incarceration as the trial court relied solely on the statutory presumption of ability to pay and former husband’s failure to rebut said presumption. On remand trial court needs to make affirmative findings as to whether Former Husband has ability to pay or not.
Harriger v. Harriger: Fla 5th DCA, March 24, 2017:
Trial court erred by not including written findings stating whether accounts, which the court obviously treated as non-marital, were or were not non-marital.
D.O.R. v. Silva: Fla. 5th DCA, March 24, 2017:
Lower court erred in ordering paternity testing in a matter wherein the Department of Revenue was attempting to register and enforce a Texas order which established paternity and ordered child support. A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under Florida Statutes 88.3151. Further, father had not filed a petition to disestablish paternity (which is possible in certain circumstances under Florida Statutes 742.18(1) if there is a basis and a petition if filed with a specific affidavit).
Posted by Roy Smith on Mar 24th 2017
