Collinsworth v. Collinsworth, 92-1458

• Decision Date: 12 August 1993
• Docket Number: No. 92-1458,92-1458
• Court: Florida District Court of Appeals
• Parties: 18 Fla. L. Weekly D1779 Joseph Eugene COLLINSWORTH, Appellant, v. Martha Foye COLLINSWORTH, Appellee.

Page 287

624 So.2d 287

18 Fla. L. Weekly D1779

Joseph Eugene COLLINSWORTH, Appellant, v. Martha Foye COLLINSWORTH, Appellee.

No. 92-1458.

District Court of Appeal of Florida,

First District.

Aug. 12, 1993.

Rehearing Denied Sept. 23, 1993.

Anthony L. Bajoczky and Patricia B. Fournier of Bajoczky & Fournier, Tallahassee, for appellant.

Clayton J.M. Adkinson, DeFuniak Springs, for appellee.

ZEHMER, Chief Judge.

Joseph Eugene Collinsworth (the husband or Appellant) appeals a final judgment of dissolution of marriage. In addition to dissolving his marriage to Martha Foye Collinsworth (the wife or Appellee), the final judgment distributes the parties' marital assets and liabilities, awards the wife rehabilitative and permanent periodic alimony, and awards her exclusive use and possession of the marital home. It also reserves jurisdiction to consider her prayer for partition of the marital home and to set a reasonable amount for her attorney's fees. Finding some merit in each of Appellant's four points, we reverse and remand for further proceedings.

The husband's first point contends that the circuit court abused its discretion by ordering an inequitable distribution of the marital assets and liabilities. He argues that the circuit court improperly awarded the wife 64% of the marital assets and none of the liabilities incurred to obtain those assets, resulting in a distribution to the wife of 90% of the net value of marital assets less liabilities, and did so without providing written findings of fact as to any special factor that would justify deviation from an equal division. He further challenges the fairness of the circuit court's equally dividing and distributing, as a marital asset, the enhanced value of the marital home that was built on his nonmarital real estate, while failing to equally divide and distribute 40 acres of timberland titled jointly in the names of the husband and the wife, and purchased during the marriage with money each party brought into the marriage. Appellant also argues that the circuit court erred in awarding the wife a special equity of $28,000 in the jointly-held 40 acres based on her contribution of $28,000 in premarital funds to the purchase price because the evidence was insufficient to show, and the court made no explicit findings thereon, that the wife had carried her burden of proving beyond a reasonable doubt that a gift was not intended when she joined in placing the property in their joint names on the deed to the property.

The equitable distribution of marital assets and liabilities is governed by section 61.075, Florida Statutes (1991). In Prom v. Prom, 589 So.2d 1363 (Fla. 1st DCA 1991), we stated:

The legislature directs courts in dissolution proceedings to consider certain factors and "distribute between the parties marital assets and liabilities in such proportions as are equitable." Sec. 61.075(1), Florida Statutes (1989). The starting point for equitable distribution is generally said to be an even split of the marital assets. Ervin v. Ervin, 553 So.2d 230 (Fla. 1st DCA 1989). However, equitable distribution need not be an exact 50-50 split, since the court may award one spouse a disproportionate share of the assets under certain circumstances such as special equities in property, extraordinary contributions during the marriage, or to balance a permanent periodic alimony award. Ervin. If the trial court decides to make an unequal division, the court should make findings which support its conclusion. Barrs v. Barrs, 505 So.2d 602 (Fla. 1st DCA 1987).

589 So.2d at 1364. Subsection 61.075(3) specifically requires that, in a contested dissolution action in which no stipulation or agreement has been entered and filed, "any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1)." "Because equitable distribution is premised on the theory of an equal partnership in marriage, the court should begin this task on the premise that each spouse is entitled to receive an equal division." Robertson v. Robertson, 593 So.2d 491, 493 (Fla.1991).

We agree with Appellant that the distribution of marital assets and liabilities in the judgment under review is inequitable and substantially departs from the 50/50 starting point. The wife was awarded more than 60% of the marital assets while being held liable for none of the marital liabilities, which included marital debts incurred to acquire some of the marital assets distributed to the wife, such as, for example, the enhanced value of marital home and lot 16. The final judgment contains no written findings to justify and support this unequal distribution of the marital assets and liabilities. Thus, the entire distribution of marital assets must be reversed and this cause remanded with directions to reconsider the equitable distribution scheme in light of the factors set forth in section 61.075, and to make the written findings required by subsection 61.075(3) that justify any unequal distribution of marital assets.

We also reverse the award of a special equity in the amount of $28,000 to the wife in the 40 acres of timberland purchased during the marriage and jointly owned by the parties. It is not disputed that $28,000 of the purchase price of that property came from the proceeds of the wife's sale of property she had received in a divorce settlement with her former husband, and that the remaining $2,000 of the purchase price was contributed by the husband from marital funds. However, the husband testified that when the wife placed his name on the deed to this farm property she intended to make a gift to him. On the other hand, the wife denied that a gift was intended and testified that she placed his name on the property because he told her to do so, as he was planning to also place money into the farm to contribute to their plan to go into ranching. This explanation suggests that the property was acquired to be used in a joint endeavor, not that no gift of a joint interest was intended. In any event, the final judgment notes only that the parties presented conflicting testimony on this special equity issue and most other issues at the hearing, and that the wife's testimony was more credible than the husband's testimony. The judgment is silent as to whether, in awarding this special equity, the circuit court required the wife to prove the special equity "to the exclusion of a reasonable doubt," and there are no specific findings of fact based on the evidence presented showing what facts the court considered were sufficient to carry this extraordinarily heavy burden of proof, nor can we determine whether the court applied that legal standard. Accordingly, we reverse the special equity award and remand for further consideration and findings by the trial court on this issue. Section 61.075(5)(a)5, Fla.Stat. (1991); Robertson v. Robertson, 593 So.2d 491 (Fla.1991); Lindley v. Lindley, 84 So.2d 17 (Fla.1955); Antonini v. Antonini, 473 So.2d 739 (Fla. 1st DCA 1985), rev. denied, 484 So.2d 7 (Fla.1986); Smith v. Smith, 597 So.2d 370 (Fla. 3d DCA 1992).

Additionally, we note from the record that the husband had purchased a truck during the marriage and apparently had or has $7,500 in cash in his possession which he obtained through the...