617 So.2d 373 (Fla.App. 5 Dist. 1993), 92-1324, McMonagle v. McMonagle

Docket Nº:92-1324.
Citation:617 So.2d 373, 18 Fla. L. Weekly D 988
Opinion Judge:Author: Sharp
Party Name:Francis X. McMONAGLE, Appellant/Cross-Appellee, v. Peggy McMONAGLE, Appellee/Cross-Appellant.
Attorney:Douglas D. Marks of Potter, McClelland, Marks & Healy, P.A., Melbourne, for Appellant/Cross-Appellee.
Case Date:April 16, 1993
Court:Florida Court of Appeals, Fifth District
 
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Page 373

617 So.2d 373 (Fla.App. 5 Dist. 1993)

18 Fla. L. Weekly D 988

Francis X. McMONAGLE, Appellant/Cross-Appellee,

v.

Peggy McMONAGLE, Appellee/Cross-Appellant.

No. 92-1324.

Florida Court of Appeals, Fifth District.

April 16, 1993

Douglas D. Marks of Potter, McClelland, Marks & Healy, P.A., Melbourne, for appellant/cross-appellee.

Karen T. Brandon of Karen T. Brandon, P.A., Melbourne, for appellee/cross-appellant.

W. SHARP, Judge.

Francis McMonagle appeals from a final judgment of dissolution of marriage questioning the equitable distribution of marital assets, and Peggy McMonagle, his former wife, cross appeals an award of attorney's fees to Francis. The trial judge made findings concerning the nature and value of the parties' marital and nonmarital assets, and awarded the marital assets equally to each party. However, it did not reference the factors listed in section 61.075(1), 1 which should be used in any contested case to justify any equitable distribution of marital

Page 374

assets, fifty-fifty or otherwise. 2 Further, the trial judge expressly stated that he thought the final result of his decree was "inequitable because the Wife will have more than doubled her assets while the Husband's will be cut in half." We reverse.

The record in this case discloses that this was a short, incompatible marriage (less than two years), entered into by the parties when they were fifty-six years of age and it was (at least) a second marriage for both. All of the parties' assets had been acquired prior to their marriage. Neither made any substantial contribution to the other's income or assets during the marriage.

Francis put his residence, which he owned prior to the marriage (valued at $130,000), in their joint names, and also gave Peggy an interest in his certificates of deposit ($19,439.66) by putting them in joint names. Peggy had $60,000 in premarital assets, in which she retained the sole interest. The trial judge found Francis intended to make a gift to Peggy of one-half of his premarital assets. He concluded that Robertson v. Robertson, 593 So.2d 491 (Fla.1991) and Sec. 61.075(5)(a)5 were controlling, and that they mandate an equal split of these gifted assets.

We think that is a misconception of both Robertson and section 61.075(5)(a)5. The record supports the trial judge's finding that a gift to Peggy was intended of Francis' assets, and therefore...

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