David v. David

• Decision Date: 25 March 2011
• Docket Number: No. 5D09–4126.,5D09–4126.
• Parties: Alberto G. DAVID, Jr., Appellant,v.Loretta L. DAVID, Appellee.
• Court: Florida District Court of Appeals

58 So.3d 336

Alberto G. DAVID, Jr., Appellant,

v.Loretta L. DAVID, Appellee.

No. 5D09–4126.

District Court of Appeal of Florida, Fifth District.

March 25, 2011.

Seth Schwartz and Caleb D. Rowland of The Schwartz law Group, P.A., Jacksonville, for Appellant.Sean P. Sheppard of Sheppard & Sheppard, LLC, St. Augustine, for Appellee.PALMER, J.

Alberto David (husband) appeals the final order entered by the trial court dissolving his marriage to Loretta David (wife). We affirm in part and reverse in part.

The husband filed a petition to dissolve the parties' marriage and the wife counter-petitioned. There were no children born of the marriage, so all issues tried were financial. Ultimately, the trial court entered a 32–page final dissolution judgment. The husband raises ten points on appeal, most of which are without merit.

First, the husband argues that the final judgment must be reversed because the trial court adopted verbatim the wife's proposed final judgment. We disagree.

In this case, each party submitted a proposed final judgment setting forth his or her desired resolution of the case and the opposing party was provided time to respond. The final judgment entered by the trial court, although not a verbatim adoption of the wife's proposed final judgment, was substantially similar to said judgment. Yet, the judgment was not inconsistent with any verbal rulings of the trial court, and there is no indication that the trial court did not remember the case or did not exercise independent judgment entering the dissolution order. As such, we find no reversible error related to the trial court's entry of its final judgment. See Ross v. Botha, 867 So.2d 567 (Fla. 4th DCA 2004).

The husband next argues that the trial court erred in failing to include sufficient findings of fact in the final dissolution judgment. However, the husband failed to preserve this error for appellate review because he did not file a motion for rehearing in the trial court raising the alleged inadequacy of factual findings. See Mathieu v. Mathieu, 877 So.2d 740 (Fla. 5th DCA 2004).

Next, the husband contends that the final dissolution judgment must be reversed because the trial court erred in distributing the parties' marital property. The husband first argues that the trial court “lacked the jurisdiction” to enter an unequal distribution of the parties' assets and liabilities because the wife did not plead for unequal distribution in her counter-petition. However, the husband fails to cite any statutory or case law which supports this argument and, in fact, section 61.075(1) of the Florida Statutes (2007) expressly authorizes trial courts to enter an unequal distribution of marital assets and liabilities based upon relevant factors. As such, we reject this claim as meritless.

The husband also argues that the trial court abused its discretion in unequally dividing the marital credit card debt solely based upon the parties' relative incomes. We agree.

In the final dissolution judgment, the trial court explained that the wife presented evidence demonstrating that, at the time the parties married, she had credit card debt totaling $1,854.59, and that on the date of separation the debt had climbed to $81,928.60. The court then noted that the legal presumption is that debts incurred during the marriage are marital debts, and that the husband did not present any evidence to rebut this presumption. The court then ruled that, based on the parties' earning abilities, the husband was responsible for paying 91.6% of the marital debt on the wife's credit cards while the wife was responsible for paying 8.4% of the debt.

Section 61.075 of the Florida Statutes (2007) requires trial courts to either distribute marital liabilities equally or to make findings of fact justifying an unequal distribution. Our courts have approved unequal distribution when the evidence establishes misconduct, such as intentional waste or depletion of marital assets. See Belford v. Belford, 51 So.3d 1259 (Fla. 2d DCA 2011); Santiago v. Santiago, 51 So.3d 637 (Fla. 2d DCA 2011); Jonsson v. Jonsson, 715 So.2d 1064 (Fla. 5th DCA 1998). However, disparate earning abilities cannot, without more, justify unequal distribution of marital assets and liabilities. Dease v. Dease, 688 So.2d 454 (Fla. 5th DCA 1997). Accordingly, we reverse the trial court's distribution of the parties' marital credit card debt.

The husband further argues that the trial court abused its discretion in awarding the wife one-half of the value of the husband's dental practice. However, in his proposed final judgment, the husband suggested that the trial court distribute the appreciation in value of the dental practice equally between the parties. Since the husband recognized that the wife was entitled to receive a one-half interest in the appreciated value of the dental practice he cannot successfully argue on appeal that the wife failed to sustain her burden of proof on this issue. Further, the record contains competent substantial evidence to support the valuation of the practice as determined by the trial court.

The husband also argues that the trial court reversibly erred in failing to consider the tax consequences related to the distribution of the wife's interest in the dental practice, claiming that the court's ruling unnecessarily requires the husband to incur capital gains taxes. We disagree.

The only evidence regarding tax consequences resulting from the entry of a final dissolution judgment was tendered by the husband's accountant who explained that if the husband were ordered to pay the wife her interest in the dental practice immediately the husband would suffer adverse tax consequences. The accountant testified that the least adverse tax method would be a payment made over time instead of a lump sum payment. The record suggests that the trial court did consider this testimony since the trial court did not direct the husband to make a lump sum payment to the wife. Instead, the trial court's dissolution order offered the husband a variety of options in order to pay the wife her interest in the dental practice, including the options of refinancing, using funds derived from the sale of the parties' other real estate, or making installment payments.

The husband next argues that the trial court...