Portuondo v. Portuondo

• Decision Date: 11 September 1990
• Docket Number: No. 89-2293,89-2293
• Citation: 570 So.2d 1338
• Parties: 15 Fla. L. Weekly D2296, 16 Fla. L. Weekly 72 Alina PORTUONDO, Appellant, v. Juan M. PORTUONDO, Appellee.
• Court: Florida District Court of Appeals

Page 1338

570 So.2d 1338

15 Fla. L. Weekly D2296, 16 Fla. L. Weekly 72

Alina PORTUONDO, Appellant, v. Juan M. PORTUONDO, Appellee.

No. 89-2293.

District Court of Appeal of Florida Third District.

Sept. 11, 1990.

On Motion for Rehearing

or Clarification Dec. 26, 1990.

Ackerman, Senterfitt & Eidson and Richard C. Milstein, and Paul Hampton Crockett, Miami, for appellant.

Fine, Jacobson, Schwartz, Nash, Block and England and Linda Ann Wells, Miami, for appellee.

Before SCHWARTZ, C.J., and COPE and GODERICH, JJ.

PER CURIAM.

Alina Portuondo [the wife] appeals a final judgment dissolving her marriage to Juan M. Portuondo [the husband]. We affirm in part, reverse in part and remand with directions.

In this appeal, the wife disputes the trial court's distribution of marital assets and the award of rehabilitative alimony. She also challenges the trial court's order finding that the husband had no duty to support his stepdaughter and directing that she pay her own attorney's fees and costs.

The husband and wife were married in 1975. The husband had already secured a masters degree in business administration. The wife had not yet completed college, and had a sixteen month old child, Ali, from a prior marriage. The husband never adopted Ali, but in all ways acted as though she were his daughter. The fourteen year marriage produced one child, Marisa, who is still a minor. In November 1988, the wife petitioned for a divorce.

The trial court entered the final judgment of dissolution of marriage on September 11, 1989. The trial court ordered shared parental responsibility of Marisa and ordered the husband to pay child support for Marisa. However, the court found that the husband had no obligation to pay child support or assume any other type of financial responsibility for Ali. The court equitably distributed the marital assets specifically giving the husband a special equity in the escrow account. The husband was awarded sixty percent of the escrowed funds and the wife was awarded the remaining forty percent. In addition, the husband was ordered to pay all outstanding credit card debts. The court found that the wife, who was thirty-seven years old and had worked both full time before and during the marriage, could become gainfully employed and, therefore, was not entitled to permanent alimony. But, the court did award her $60,000.00 as non-modifiable, lump sum, rehabilitative alimony for three years to enable her to effect her transition into the labor market. Finally, the court ordered each party to bear their own costs and fees.

First, we address the distribution of assets. We find that the trial court improperly found that the husband was entitled to a special equity in the parties' escrow account.

At the time of the marriage, the husband owned as his separate property a house known as the "Fernwood house" which was and remained titled solely in his name. The parties lived in this house until 1979. In 1979, as part of his parents' estate planning, the husband conveyed the Fernwood house to his parents in exchange for their house, which was known as the "Island Drive house". The parties took title to the Island Drive house as tenants by the entireties. At the time the parties acquired the Island Drive house, the parties executed a mortgage and note in the amount of $93,100.00 in favor of the husband's parents. However, the parties never made any payments on that mortgage and in 1983 the mortgage was entirely forgiven. A satisfaction of mortgage was executed on October 20, 1983. The husband's father testified that he intended this as a gift solely to his son. In 1988, the parties sold the Island Drive house, deposited the sale proceeds into a joint bank account, and moved into a rental residence. The husband contends that no other funds were deposited into that account and that, therefore, his separate funds were not intermingled with joint funds. The parties then withdrew money from that account to make the down payment on a vacant lot. The husband admits that after the down payment was made other funds were deposited into that account. The parties then sold the lot and placed the proceeds therefrom into a jointly titled bank account which is currently held in escrow. This escrow account which contained approximately $575,000.00 at the time of the final hearing is the only substantial marital asset subject to equitable distribution. The husband claimed a special equity in the escrow account.

After considering the testimony and evidence, the trial court found that the husband had proven a special equity in the escrow account based upon the forgiveness of the mortgage by his parents and his ability to trace the funds constituting that gift into the escrow account. The trial court based its decision on the testimony of the husband's father that in forgiving the mortgage, it was his intention to gift the entire amount of the mortgage solely to his son. However, the evidence reveals that the parties held title to the Island Drive home as tenants by the entireties. Both the husband and the wife were legally obligated under the mortgage and note, and any forgiveness thereof flowed equally to both parties. In addition, the testimony of the husband's father itself undercuts the finding of a gift to the husband alone. The husband's father testified that he forgave the entire mortgage obligation over the course of four years. He further testified that under the advice of tax counsel, he and his wife gifted an annual amount of $3,000.00 each towards the reduction of the mortgage debt as a gift to their son. This would mean that the husband's parents gave him a gift of $6,000.00 for the years 1979 through 1981. However, in 1981, the Internal Revenue Code was amended and increased the gift tax exemption from $3,000.00 per donee to $10,000.00 per donee. As a result, the husband's parents would then have been able to gift an annual amount of $10,000.00 each towards the reduction of the mortgage debt as a gift to their son during 1982 and 1983. Under the tax code, the maximum amount of money that the son could have received during these years without either the husband's parents or the husband incurring tax liability was $58,000.00. The husband's father testified that he did not file any tax return, indicating that he was gifting any money to his son, "because it was tax-free." The only possible explanation for the satisfaction of the $93,100.00 in four years was that the husband's parents made gifts to both the husband and the wife.

"The question of donative intent is one of a preponderance of credible evidence". Merrill v. Merrill, 357 So.2d 792, 793 (Fla. 1st DCA 1978). Therefore, if there is no credible evidence of such intent below, the finding of the trial judge as to donative intent is not binding on the appellate court. See Laws v. Laws, 364 So.2d 798 (Fla. 4th DCA 1978); Bickerstaff v. Bickerstaff, 358 So.2d 590 (Fla. 1st DCA), cert. denied, 365 So.2d 709 (Fla.1978). In the present case, the evidence clearly and unequivocally shows that the husband's parents did intend to make a gift to both the husband and the wife. The husband's father's testimony that no gift was intended cannot be reconciled with his additional testimony that he forgave the entire mortgage debt as a gift over four years and that he did not report the gift to the Internal Revenue Service since there was no tax liability. "Passage of time and the interest to be served have a way of coloring or changing a person's recollections, but the documentary evidence is not subject to such imperfection and stands as immutable and irrefutable memorials to the true intent of the parties." Laws, 364 So.2d at 801. We conclude that there was no competent evidence in the record to support the trial court's judgment that the husband was entitled to a special equity. See Shaw v. Shaw, 334 So.2d 13 (Fla.1976) (appellate court has right to reject incredible and improbable testimony or evidence); Marrone v. Miami Nat'l Bank, 507 So.2d 652 (Fla. 3d DCA 1987) (appellate court will not disturb trial court's findings unless they are totally unsupported by competent and substantial evidence); Bowen v. Bowen, 347 So.2d 675 (Fla. 3d DCA 1977) (no competent evidence to support trial court's judgment that wife not entitled to special equity). Therefore, the part of the judgment awarding the husband a special equity is reversed.

The wife also attacks the trial court's equitable distribution of the marital assets on the grounds that the court abused its discretion by failing to establish a suitable residence for the wife and the children prior to effecting an equitable distribution. We disagree.

In essence the wife is asking this court to find a special equity or other basis to support a special award from the only marital asset, the escrowed funds. Absent a special equity or some other compelling legal or practical reason, one spouse is not entitled to the other spouse's share of the marital assets. Halberg v. Halberg, 519 So.2d 15, 17 (Fla. 3d DCA 1987); Wynn v. Wynn, 478 So.2d 380 (Fla. 5th DCA 1985). In this case, the wife has not established any justification for going beyond the equal division starting point. See Carroll v. Carroll, 471 So.2d 1358, 1361 (Fla. 3d DCA), rev. denied, 482 So.2d 347 (Fla.1985). The fact that the parties did not own a home in addition to the proceeds from the sale of the lot, does not entitle the wife to more than one-half of the proceeds from the lot. The wife is not being forced to deplete her assets for support; she is simply converting one asset to another if she buys a home. We have awarded the wife one-half of the marital assets, approximately $287,500.00. This is more than sufficient to obtain adequate housing. Cf. Teague v. Teague, 551 So.2d 1242, 1243 (Fla. 1st DCA 1989), rev. denied, 562 So.2d 347 (Fla.1990) (wife exhibited special need making invasion of husband's non-marital assets necessary for purpose of providing home to...