Decision Date17 November 2010
Docket NumberNo. 4D08-4525.,4D08-4525.
Citation47 So.3d 389
PartiesRodney James MONDELLO, Appellant, v. Maria Marcela TORRES, Appellee.
CourtFlorida District Court of Appeals




Eddie Stephens of Law Office of Eddie Stephens, P.A., West Palm Beach, for appellant.

Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for appellee.

On Motions for Rehearing and Clarification


We deny Husband's motion for rehearing, grant Wife's motion for clarification, and substitute the following for our July 21, 2010, opinion.

Rodney James Mondello (Husband) appeals the final judgment dissolving his marriage. Maria Marcela Torres (Wife) cross-appeals. We affirm in part and reverse in part.

Husband challenges the trial court's determination that certain accounts/funds were nonmarital, and the trial court's alleged sua sponte award of attorney's fees. He also claims the trial court erred in awarding interest to Wife not previously requested. On cross-appeal, Wife argues the trial court erred in failing to designate two of Wife's separately titled accounts as nonmarital, in failing to require Husband to repay a loan to Wife within the equitable distribution schedule, and in failing to value Husband's life insurance policy. Both parties challenge the alimony award, as well as the trial court's allocation of responsibility for Husband's debts.

Wife was born in Colombia and had two children with her first husband. When her first husband died in 1987, she inherited all of his assets. Husband and Wife married in October of 1991. At that time, Wife had a net worth of approximately $2 million, while Husband had no assets. At the time of trial, Husband was 66 years old; Wife was 43. Husband is retired and receives $1,245 per month in social security, plus approximately $2,000 in interest from a promissory note on a loan to a friend. Wife is a software designer for Pratt & Whitney and has a gross monthly income of $6,590. Wife worked intermittently, and raised her children for much of the marriage. Husband worked in construction for awhile, and owned a garment business in New York until 1993, when he converted his building into a low-income housing project. Wife commenced divorce proceedings in March of 2007. The disputed issues at trial were the categorization of certain assets and liabilities and Husband's request for permanent periodic alimony.

[1] First, we find no error in the trial court's categorizing the proceeds of Wife's Smith Barney account as nonmarital property.

[2] A trial court's legal conclusion that an asset is marital or nonmarital is subject to de novo review. Gaffney v. Gaffney, 965 So.2d 1217, 1220 (Fla. 4th DCA 2007); Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007).

Husband argues that the proceeds of Wife's Smith Barney account should have been designated as marital property, because these monies originated from a refinance of the marital home; Wife's accountant treated the funds as marital at trial; and there was uncontroverted evidence that the account was commingled with at least $25,000 of marital funds. Wife responds and we agree that the evidence demonstrates the account was derived from inherited funds, and there was no intent on Wife's part to create a marital asset.

[3] “In evaluating assets that come to one spouse by inheritance, the task for the trial court in a dissolution proceeding is to determine whether the recipient intended that the assets remain non-marital or whether the recipient's conduct during the marriage gives rise to the presumption of a gift to the other spouse.” Lakin v. Lakin, 901 So.2d 186, 190 (Fla. 4th DCA 2005) (affirming trial court's decision to treat accounts as marital where inherited funds were first deposited into joint account).

Wife's accountant testified that the Smith Barney account was a marital asset, and treated it as such in his report. However, Wife later introduced evidence that she inherited $2 million in assets from her late husband. She then set up accounts in Panama (at Merrill Lynch and BNP Paribas), which were worth nearly $1 million by 1998. She later transferred these proceeds to Smith Barney in the United States. The account remained titled in Wife's name through the parties' marriage, creating a presumption that it was a nonmarital asset. See § 61.075(6)(b) 1.-2., Fla. Stat. (2008) (“ ‘Nonmarital assets' ... include: 1. Assets acquired ... by either party prior to the marriage, ...; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.”).

We agree with Wife that the financial transactions that occurred just before the parties' dissolution did not overcome this presumption. Wife loaned $200,000 to Husband's friend, Maggie Skipper, using proceeds from her Smith Barney account. In September of 2006, the parties refinanced their marital residence and $417,000 was transferred into Wife's account at Third Federal. Three months later, Skipper repaid her loan and the funds were placed into the Third Federal account, along with an additional repayment of $419,000 from loans the parties jointly made to Skipper. Three months after that, Wife transferred $200,000 from the Third Federal account into her Smith Barney account.

Husband contends that some of the $200,000 transferred from Third Federal to Smith Barney was the proceeds from the refinance of the marital residence. However, Wife testified that the reason why exactly $200,000 was transferred into her Smith Barney account was because this was the exact amount of the loan she previously made to Skipper. Indeed, Wife returned to her account the exact amount of the loan she made months earlier to the third party.

[4] Even presuming that Wife made a gift to Husband, the trial court had discretion to determine that the presumption was overcome by the evidence. See Hay v. Hay, 944 So.2d 1043, 1046 (Fla. 4th DCA 2006). Where the evidence is conflicting as to whether one spouse intends to make a gift to the other, “it is the responsibility of the trial court to evaluate the weight and credibility of that testimony and to arrive at a determination.” See Marsh v. Marsh, 419 So.2d 629, 630 (Fla.1982); accord Francavilla v. Francavilla, 969 So.2d 522, 527 (Fla. 4th DCA 2007). Here, the trial court determined all credibility issues in favor of Wife. Wife testified that she kept the Smith Barney account in her name because it was inherited from her late husband and intended for her children. She claimed she intentionally kept the account separate because she feared Husband would claim the proceeds of the account. She said she did not tell Husband she had inherited any money until she had tax problems. Finally, Wife returned $200,000 to the Smith Barney account, the same figure she loaned to Skipper from this account. Wife's conduct reflects that no gift was intended.

Husband also contends that a May 2005 deposit of $25,000 from the parties' joint Washington Mutual account into the Smith Barney account requires a legal conclusion that the Smith Barney account is marital. However, Wife testified to no rebuttal that, two months earlier, she had loaned $25,000 from the Smith Barney account to Husband to pay bills. Wife testified that the May 2005 transfer was a repayment of the loan, for again, the exact amount of the loan was deposited back into her separate account. In any event, this court has held that, [u]sing some portion of non-marital funds to pay marital expenses does not convert the remaining non-marital funds into a marital asset.” Lakin, 901 So.2d at 191; see also Hamilton v. Hamilton, 758 So.2d 1213, 1214 (Fla. 4th DCA 2000) (money that husband inherited retained its non-marital status when he placed funds into a separate account, even though he used funds from this inheritance for marital bills).

In short, Wife overcame any presumption that a gift was intended, and thus, the trial court properly exercised its discretion in awarding Wife all of the proceeds of this account.

[5] We also reject Husband's contention that the trial court erred in categorizing funds from Wife's Panamanian account as nonmarital. Wife demonstrated that, after her late husband died and left her with nearly $2 million in assets, she opened an account at Merrill Lynch in Panama with an initial deposit of $250,000. When her financial advisor moved to BNP Paribas, Wife transferred the account to BNP. It is undisputed that only a few bank statements from the Panama accounts were able to be retrieved.

Husband contends that the trial court erred in determining the BNP account was nonmarital, where Wife produced only “partial and sporadic” statements on this account, most of which were not even identified with Wife's name. He further notes that Wife was unable to identify the source of four deposits into the account between 1995-96, while he testified and produced documentary evidence that these deposits came from the sale of tax credits and his premarital apartment complex. Wife conceded she was not certain of the source of these four deposits, but believed they were from other accounts she held overseas. Wife testified that she kept these accounts separate and a secret from Husband, because they were inherited from her late husband and intended to benefit her children, and because she was afraid that Husband would take the money. This court must defer to the trial court on issues of credibility, which were resolved in Wife's favor.

While Husband maintained that the account contained money he earned during the marriage, he produced no credible evidence to support this contention, or the transfer of his income into the account. The exhibit Husband relies on, Exhibit 12, is an IRS form reflecting a low-income housing credit allocation certificate. It does not show deposits into any bank account or that Husband received any funds. Husband also...

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