Mills v. Mills

• Court: Florida District Court of Appeals
• Writing for the Court: KELLY, Judge.
• Citation: Mills v. Mills, 62 So.3d 672 (Fla. App. 2011)
• Decision Date: 13 June 2011
• Docket Number: No. 2D09–4541.,2D09–4541.
• Parties: Mary Elizabeth MILLS, Appellant,v.Darrell John MILLS, Appellee.

62 So.3d 672

Mary Elizabeth MILLS, Appellant,

v.Darrell John MILLS, Appellee.

No. 2D09–4541.

District Court of Appeal of Florida, Second District.

May 6, 2011.Rehearing Denied June 13, 2011.

Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, and Robert L. Valentine, Lakeland, for Appellant.Stephen R. Senn of Peterson & Myers, P.A., Lakeland, for Appellee.KELLY, Judge.

Mary Elizabeth Mills, the former wife, appeals the final judgment dissolving her marriage to Darrell John Mills, the former husband. We reverse because the trial court erred in valuing and dividing the marital assets, in setting the amount of permanent alimony, and in failing to make proper findings regarding attorney's fees.

Equitable Distribution

Shortly before the parties separated, the former husband sold a portion of his business for a total payout of $1,355,796. The former wife argues the trial court's equitable distribution award must be reversed because the court distributed only a portion of the sale proceeds. She also contends the trial court erred when it awarded her funds that were depleted during the dissolution proceeding. We agree that the trial court erred in both respects and accordingly, we reverse the equitable distribution award.

The parties offered the trial court two different methods for valuing the proceeds from the sale of a portion of the former husband's business. The former wife's accountant valued the net proceeds of the sale as a whole without taking into account assets acquired with a portion of the sale proceeds. He arrived at the net proceeds figure of $1,296,496 by taking the sale price, adding in interest earned on the sum, and deducting taxes and money that he calculated had been used in operating the former husband's business.

In contrast, the former husband's accountant started with the net proceeds, and then deducted the money the parties had used to buy a condominium and the funds the former husband had used to pay income taxes, build an office building, purchase office furniture, a company automobile, and software for his business. Additionally, he testified that during the course of the parties' separation, the former husband had made payments totaling $444,246 to the former wife. The remaining proceeds were in a money market account valued at $218,040 at the time of the final hearing.

Because the former wife's accountant valued the sale proceeds as a whole rather than by accounting for assets purchased with the proceeds, he calculated that the former husband's business was worth $60,000. That figure represented the corporate assets less liabilities, but it did not include any assets purchased with proceeds from the sale. In contrast, the former husband's accountant valued the business at $593,000, a figure that included the assets purchased with the sale proceeds. The former husband's accountant agreed with the $60,000 value if the assets acquired with the sale proceeds were valued separately.

The parties' equitable distribution proposals reflected their different approaches to valuing the sale proceeds. In his equitable distribution plan, the former husband proposed that the $444,246 he had paid to or on behalf of the former wife be allocated to her along with the condominium. He allocated the money market account to himself. He allocated his business to himself and valued it at $60,000, which was the figure suggested by both parties' accountants, provided the assets purchased with the sale proceeds were valued separately. His proposal did not include any of those assets, however.

In her equitable distribution scheme, the former wife included as a marital asset the proceeds of the sale, plus interest, less taxes and money that her accountant determined was used in the operation of the former husband's business. That resulted in a figure of $1,214,050, which she allocated to herself. Consistent with her approach of valuing the sale proceeds as a whole rather than valuing the assets purchased with the proceeds, the former wife's proposal did not include a value for the money market account, the condominium, or the assets acquired by the business.

The trial court did not accept either party's proposal in its entirety. It did not value the sale proceeds in the manner proposed by the wife, but instead distributed the money market account, the condominium, and the husband's business. It valued the former husband's business at $60,000, which was the value of the business if the assets purchased with the sale proceeds were valued separately. The court did not, however, include those assets in its distribution scheme. The result was a distribution plan that did not identify and distribute all the marital assets. This was error. See § 61.075(3)(a), Fla. Stat. (2006); Lanier v. Lanier, 861 So.2d 457, 458 (Fla. 2d DCA 2003) (holding that in contested marriage dissolution proceedings the trial court is required to enter written findings of fact identifying and valuing marital assets).

Nor did the trial court allocate the $444,246 to the former wife as suggested by the former husband. The trial court found that those funds were used to pay the mortgage and upkeep on the marital residence, health insurance for the former wife, attorney's fees for the former wife, and “other miscellaneous and personal expenses of the former wife.” Based on this, the trial court stated that it considered the payments to be part temporary spousal support, part attorney's fees and costs, and the balance to be a partial prejudgment marital asset distribution. However, it made no finding specifying how much of the $444,246 should be allocated to these various categories.

The absence of this finding is significant here because the trial court's distribution plan favored the former husband by approximately $74,000, and the trial court looked to the $444,246 the former wife had already received and found that a portion of that sum was a “partial prejudgment marital asset distribution,” and that it “more than equalizes the difference” in the amounts allocated to the parties. Because the court did not specify how much of the $444,246 constituted prejudgment asset distribution, we are unable to determine if the trial court's conclusion that the distribution equalized the parties' positions is supported by the evidence. Id. (noting that written findings of fact identifying and valuing marital assets are necessary so that “the parties or reviewing court may discern the rationale for the distribution scheme employed”). Nor can we determine whether, as the former wife contends, the court included in the distribution assets that were used for support, living expenses, or litigation expenses. If it did, this would be error because marital assets used to pay for support, living expenses, and litigation expenses should not be included in an equitable distribution scheme in the absence of misconduct. See Austin v. Austin, 12 So.3d 314, 316–17 (Fla. 2d DCA 2009).

Given the forgoing, we must reverse the equitable distribution...