McGowan v. McGowan
| Decision Date | 17 August 2022 |
| Docket Number | 1D21-966 |
| Parties | Lisa McGowan, n/k/a Lisa Miller, Appellant, v. Bobby Ray McGowan, Appellee. |
| Court | Florida District Court of Appeals |
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
On appeal from the Circuit Court for Nassau County. Lester Bass Judge.
Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville for Appellant.
Arthur I. Jacobs, Richard J. Scholz, and Douglas A. Wyler of Jacobs Scholz & Wyler, LLC, Fernandina Beach, for Appellee.
Lisa McGowan, Former Wife, appeals a final judgment dissolving her marriage to Bobby Ray McGowan, Former Husband. She argues that the trial court erred when it distributed the parties' assets and liabilities and when it ruled on her requests for alimony and attorney's fees. Because the trial court reversibly erred in several respects, we reverse.
The parties were married in 2012. It was the second marriage for both, and no children were born of the marriage. Both parties entered the marriage with significant assets and successful careers: Former Wife was an executive at CSX and Former Husband was a senior vice president at People's Capital & Leasing. Six years after they married, Former Wife filed to dissolve the marriage.
In the dissolution proceeding, the trial court heard four days of testimony about the parties' assets and liabilities and considered Former Wife's request for alimony and attorney's fees.
Three months later, the trial court entered the final judgment. In its distribution of assets and liabilities, the court described the net value of each marital asset and debt. The court distributed several assets and liabilities to Former Wife: the loan on her 2015 Infiniti, the balance on her Advantage MasterCard, accounts at First Florida, accounts at Jax Federal, Publix stock, an Empower Rollover IRA, an Empower Roth IRA, and a Merrill Lynch account.
The court distributed other assets to Former Husband: accounts at Wells Fargo, a home in Fayetteville, Georgia, a People's United 401(k), a People's United ESOP, and a Fidelity Roth IRA.
After determining it would unequally distribute the parties' assets and liabilities, the court ruled that Former Wife owed Former Husband $4,430.50. The court then denied Former Wife's requests for alimony and attorney's fees.
Former Wife moved for rehearing, arguing that the trial court misclassified the parties' assets and liabilities, designating certain nonmarital assets and liabilities as marital and vice versa. She also argued that the trial court misvalued assets and liabilities. Finally, she argued that the trial court erred in denying her requests for alimony and attorney's fees. The trial court denied the rehearing motion. This timely appeal follows.
This Court reviews de novo a trial court's determination that an asset is marital or nonmarital. Martin v. Martin, 276 So.3d 393, 395 (Fla. 1st DCA 2019). But we review the trial court's factual findings required to support that determination for competent, substantial evidence. Sturms v. Sturms, 226 So.3d 1004, 1006 (Fla. 1st DCA 2017). We review a trial court's valuation of marital assets and liabilities for an abuse of discretion. Tritschler v. Tritschler, 273 So.3d 1161, 1165 (Fla. 2d DCA 2019).
We observe at the outset that the trial court adopted Former Husband's proposed final judgment in toto. As we will explain, this case reveals the peril of a trial court adopting a proposed order verbatim. See Perlow v. Berg-Perlow, 875 So.2d 383, 390 (Fla. 2004) (); D.R. v. Dep't of Child. & Fams., 236 So.3d 1175, 1176- 77 (Fla. 1st DCA 2018) ().
In no way did the final judgment show the exercise of independent judgment by the trial court. The trial court made no oral findings before entering the judgment. And its wholesale adoption of Former Husband's proposed judgment caused the trial court to make multiple, easily avoidable errors. As conceded by Former Husband's counsel at oral argument, the proposed judgment was riddled with errors in classifying and valuing the parties' assets and liabilities. By adopting Former Husband's proposed judgment verbatim, the trial court repeated those errors in the final judgment.
What is more, along with the errors conceded by Former Husband, the final judgment reveals several other errors in classifying and valuing the parties' assets and liabilities. Even so, at oral argument, Former Husband's counsel suggested that these errors can be overlooked because the dissolution statute permits the trial court to consider "[a]ny factors necessary to do equity and justice between the parties." § 61.075(1)(j), Fla. Stat. (2018). Former Husband argues in essence that the multiple errors in the final judgment "come out in the wash." We disagree. As explained below, the trial court had to consider and correctly apply the steps outlined in the dissolution statute when distributing the parties' assets and liabilities. A court cannot simply skip to the end of the process and render judgment based on its authority to consider "[a]ny factors necessary to do equity and justice between the parties." Id.
Section 61.075, Florida Statutes, spells out in great detail the steps a trial court must take in equitably distributing the assets and liabilities of parties seeking to dissolve their marriage.
In the first step, the trial court "set[s] apart to each spouse that spouse's nonmarital assets and liabilities." § 61.075(1), Fla. Stat. (2018). Section 61.075 defines those terms and explains how the trial court is to distinguish marital assets and liabilities from those that are nonmarital. Assets acquired during the marriage by either spouse individually or by both spouses jointly are marital assets. § 61.075(6)(a)1.a., Fla. Stat. But assets acquired by either party before the marriage are nonmarital assets. § 61.075(6)(b)1., Fla. Stat. In distinguishing between marital and nonmarital assets and liabilities, the trial court must make written findings of fact. § 61.075(3), Fla. Stat.
After the trial court has sorted the nonmarital assets and liabilities from the marital assets and liabilities, the trial court must then determine the value of the marital assets and liabilities. Keurst v. Keurst, 202 So.3d 123, 127 (Fla. 2d DCA 2016) ().
Finally, the trial court must distribute the marital assets as prescribed by statute. Id. Although there is a presumption in favor of an equal distribution, a trial court may unequally distribute the marital assets and liabilities after considering the ten factors set out in section 61.075(1)(a)-(j), Fla. Stat.
Here, the trial court erred at the outset, in the first step. It misclassified certain nonmarital assets as marital and included those assets in the distribution plan. The trial court's inclusion of nonmarital assets in the equitable distribution scheme was error. See Vinson v. Vinson, 282 So.3d 122, 140 (Fla. 1st DCA 2019) () ( that nonmarital property is not subject to equitable distribution). The court also misclassified certain marital liabilities as nonmarital and erroneously excluded them from the distribution plan. Further, the classification of the parties' assets and liabilities as marital and nonmarital in the final judgment was internally inconsistent and not supported by competent, substantial evidence.
The trial court erroneously classified two nonmarital assets as marital: Former Wife's Jax Federal Account and her Publix stock. The trial court determined that the Jax Federal Account was a marital asset even while acknowledging that the account contained funds from a nonmarital inheritance and had not been comingled with marital funds. See § 61.075(6)(b)2., Fla. Stat. (2018). The trial court also classified Former Wife's Publix stock as a marital asset even though Former Wife acquired the stock in her first divorce and no efforts were expended during the marriage to increase the value of the stock. Id. Because no competent, substantial evidence supports the trial court's treatment of these assets as marital, the trial court erred in including them in the equitable distribution plan. See Vinson, 282 So.3d at 140.
The trial court also misclassified several retirement and investment accounts as marital assets only even though those accounts included both nonmarital and marital portions. Former Husband and Former Wife entered the marriage with significant nonmarital assets consisting of retirement and investment funds. Although assets acquired before the marriage are generally nonmarital, "[t]he enhancement in value and appreciation of nonmarital assets resulting from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both" is considered a marital asset. § 61.075(6)(a)1.b., Fla. Stat. (2018); see also Yon v. Yon, 286 So.3d 322, 330 (Fla. 1st DCA 2019).
The trial court distributed...
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