Heiny v. Heiny

• Decision Date: 25 January 2013
• Docket Number: 2D10–4408.,Nos. 2D09–4924,s. 2D09–4924
• Citation: 113 So.3d 897
• Parties: Rudolph HEINY, Appellant/Cross–Appellee, v. Fran Pupello HEINY, Appellee/Cross–Appellant, Rudolph Heiny, Appellant, v. Fran Pupello f/k/a Fran Pupello Heiny, Appellee.
• Court: Florida District Court of Appeals

113 So.3d 897

Rudolph HEINY, Appellant/Cross–Appellee,

v.Fran Pupello HEINY, Appellee/Cross–Appellant,Rudolph Heiny, Appellant,

v.Fran Pupello f/k/a Fran Pupello Heiny, Appellee.

Nos. 2D09–4924, 2D10–4408.

District Court of Appeal of Florida, Second District.

Jan. 25, 2013.

Kristin A. Norse, Stuart C. Markman, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellant/Cross–Appellee.

Ellen E. Ware of Ware Law Group, P.A., Tampa, for Appellee/Cross–Appellant.

MORRIS, Judge.

In these consolidated appeals, Rudolph Heiny, the husband, and Fran Pupello, the wife, both appeal a final judgment of dissolution entered in 2009 and a final judgment of attorneys' fees entered against the husband in 2010. The husband argues that the trial court made four errors in the equitable distribution plan and in ordering him to pay 100% of the wife's fees as a sanction against him. In her cross-appeals, the wife argues that the trial court made three errors in the equitable distribution plan. She also argues that the trial court abused its discretion in failing to award costs on the same basis as attorneys' fees and in permitting the husband to pay the attorneys' fee award in monthly installments. We agree that the trial court made errors in the equitable distribution plan, specifically regarding the wife's premarital home, the debt on the marital rental property, funds paid by the parties to the pool business, and the Mercantile Bank savings account. We also conclude that the trial court erred in ordering the husband to pay all of the wife's attorneys' fees as a sanction and in its calculation of the amount of fees to be paid by the husband. To this extent only, we reverse the judgments of the trial court. We affirm in all other respects.

I. Introduction

The parties married in 1996. They had two children during the marriage. The husband is a pool contractor, and the wife is an accountant. During the marriage, they worked together in the husband's pool construction business. Before the parties married, they signed an antenuptial agreement. The general purpose and intent of the agreement was to protect each party's premarital assets as separate property. The antenuptial agreement contained a specific provision regarding the wife's premarital home, which is discussed in further detail below. During the marriage, the parties and their two minor children resided in the wife's premarital home. The parties bought adjacent property and made improvements to both the wife's premarital home and the adjacent property for the benefit and use of the family.

At the time of the dissolution, the marital property subject to equitable distribution included the property adjacent to the wife's premarital home; rental property (the Genessee property); various investment, retirement, and bank accounts; a car; and other personal property. The parties also sought a determination regarding the husband's interest in the wife's premarital home and the wife's interest in the pool business. The parties' marital debts consisted of a home mortgage with a balance of $276,000 and a mortgage on the Genessee property with a disputed balance somewhere between $36,000 and $60,000.

In the final judgment, the trial court awarded the wife her premarital home as a nonmarital asset. As part of the equitable distribution plan, the trial court awarded the husband a one-half interest in the appreciation of the wife's premarital home. The trial court awarded the wife the adjacent pool property in the equitable distribution plan. The trial court awarded the husband the pool business as a nonmarital asset. The trial court then ordered the husband to pay 100% of the wife's attorneys' fees based on his litigation misconduct.

As noted in the final judgment of dissolution, the parties did not litigate the time-sharing schedule and parenting plan involving the children, but the final judgment contained rulings regarding child support, which neither party challenges on appeal.

II. DiscussionA. The wife's premarital home

The antenuptial agreement provides in relevant part:

6. Agreements Concerning Fran's House. The parties hereto intend to reside in Fran's house.... The House shall be and remain titled in Fran's name alone and, except as specifically provided in Section 6, Rudy shall have no right, title or interest in and to the House or any of Fran's Separate Property contained herein. Further, with respect to the House, the parties agree as follows:

(a) If a petition for dissolution of marriage is filed by either of the parties hereto after the date the parties are married, upon the entry of an order dissolving the marriage of the parties, Fran shall pay to Rudy a sum equal to one-half of all principal payments and any capital improvements made with respect to the House between the date of the marriage of the parties and the date on which a petition for dissolution of marriage was filed.

In the proceedings below, the parties agreed that the antenuptial agreement was valid and enforceable.

In the final judgment of dissolution, the trial court assigned the wife's premarital home an equity value of $285,000 at the time of the marriage in 1996. The trial court found that the home's equity value had appreciated in the amount of $272,813 to have an equity value of $557,813 at the time of the dissolution.¹ The trial court then found that “[o]ne half of those capital improvements would be $136,406.50,” awarding the husband that amount in the equitable distribution calculations.

On cross-appeal, the wife asserts that the trial court misinterpreted the terms of the antenuptial agreement and that pursuant to the terms of the agreement, the husband was only entitled to credit for one-half of the costs of capital improvements and one-half of the principle mortgage payments made during the marriage.

A trial court's interpretation of an antenuptial agreement “ ‘is reviewed de novo, as such agreements are governed by the law of contracts.’ ” Murley v. Wiedamann, 25 So.3d 27, 29 (Fla. 2d DCA 2009) (quoting Taylor v. Taylor, 1 So.3d 348, 350 (Fla. 1st DCA 2009)). “When interpreting a contract, the court must first examine the plain language of the contract for evidence of the parties' intent.” Id. (citing Royal Oak Landing Homeowner's Ass'n v. Pelletier, 620 So.2d 786, 788 (Fla. 4th DCA 1993); Knott v. Revolution Software, Inc., 181 Ohio App.3d 519, 909 N.E.2d 702, 712 (2009)). We conclude that the trial court erred in interpreting the antenuptial agreement to provide that the husband is entitled to half of the appreciated value of the property resulting from capital improvements. The plain language of the agreement clearly limits the husband's interest in the wife's premarital home to one-half of principal payments and one-half of capital improvements made by the parties during the marriage. The trial court's calculation erroneously took into consideration the appreciation of the premarital home, which was not contemplated by the terms of the antenuptial agreement. The husband's benefit regarding the wife's premarital home was limited to one-half of the cost of the improvements and one-half of the amount of the principal payments made during the marriage. Accordingly, we reverse the trial court's finding that the husband was entitled to one-half of the appreciated value of the wife's home. We remand for the trial court to reconsider the husband's interest in the premarital home according to the terms of the antenuptial agreement.

Additionally, the trial court erred in its finding regarding the premarital value of the wife's premarital home, as argued by the husband on appeal. The undisputed testimony was that the home was worth $341,000 when the parties married, but the trial court found that the home was worth $375,000 at the time of the marriage. There appears to be no support in the record for the trial court's finding; therefore, we reverse on this matter. See Tucker v. Tucker, 966 So.2d 25, 26 (Fla. 2d DCA 2007) (“The trial court's valuation of marital assets must be supported by competent, substantial evidence.” (citing § 61.075(3), Fla. Stat. (2005)). We note that the value of the wife's premarital home is likely irrelevant to the overall equitable distribution plan in light of our conclusion above that the husband has no interest in any appreciated value of the home.

B. The Genessee rental property

The trial court awarded the husband the Genessee rental property, valued at $103,898.69. On appeal, the husband argues that the trial court failed to make findings regarding the mortgage debt on the property that he paid off during the dissolution proceedings. The wife responds that even though the husband would be entitled to credit for the amount of debt he satisfied by paying off the mortgage, he failed to produce any evidence to show the source of the funds he used to pay off the debt.

While it is undisputed that there was a marital mortgage on this property, there was conflicting evidence regarding the balance of the mortgage when it was paid off by the husband. The wife's accountant testified at trial that according to the wife's financial affidavit, the Genessee rental property had a mortgage in the amount of $60,000 at the time the wife filed for divorce. The wife acknowledged that the husband paid off the debt and that he would be entitled to credit, depending on the source of the funds he used to pay off the debt. The husband testified that he paid off the $60,000 loan. Regarding the funds he used, he testified to the following:

A. I paid off the indebtedness by borrowing the money from my uncle. I used part of the money that was repaid from the Bustamante loan....

....

Q. How much money did you borrow from your uncle to pay off the foreclosure?

A. I had, I think, 27,000 or 17,000 or whatever the difference was from the Bustamante loan ² to get to the 60 I had to borrow....

The husband did not produce any documentation to support his assertion that he...