Ramos v. Ramos
| Decision Date | 29 November 2017 |
| Docket Number | No. 4D16–4028,4D16–4028 |
| Parties | Gilbert RAMOS, Appellant, v. Paula RAMOS, Appellee. |
| Court | Florida District Court of Appeals |
Chet E. Weinbaum, Fort Pierce, for appellant.
No appearance for appellee.
Appellant Gilbert Ramos ("Former Husband") appeals the trial court's final judgment of dissolution of marriage. He argues that the trial court committed several errors, including labeling his vending machine business and truck as marital assets for purposes of equitable distribution, incorrectly valuing his coin collection, and ordering him to obtain life insurance. We agree, in whole or in part, with each of Former Husband's arguments on appeal and accordingly reverse and remand for the trial court to take appropriate action consistent with this opinion.
On February 28, 2014, Former Husband filed a petition for dissolution of marriage. He and appellee Paula Ramos ("Former Wife") married on December 3, 2000, making the marriage a little more than thirteen years old at the time of filing. In his petition, Former Husband requested equitable distribution, that Former Wife purchase life insurance for the benefit of their two minor children, and that she pay his attorney's fees. In particular, he argued that his vending machine business was exempt from equitable distribution because he had started the business prior to the marriage. In her response, Former Wife denied, among other things, that the vending machine business was exempt.
At trial, the parties first discussed the vending machine business. Former Husband testified that he started the business ten years before the parties were married. Then, he testified that during the course of the marriage, the value of the business went Before he was married, he had "eighty plus machines, both snack and soda," and that all but one or two of those machines were "making money." Former Wife did not disagree, and testified that the business had multiple machines across thirty locations. But then, Former Husband noted, the business had only "twenty-three machines, [at] seventeen locations" at the time of dissolution. Former Wife agreed that there were now only about twenty-three machines.
The parties next discussed the value of a marital coin collection. Former Wife introduced a hand-written list previously made by Former Husband noting that he had about $36,000 in coins. She explained he created the list around 2011. Former Wife also admitted some pictures she took of the coins during this period of time. Former Husband disputed that he ever had $36,000 in coins. Regardless, he testified that their value at the time of filing the petition for dissolution was "about ten, twelve thousand dollars total," and, at the time of trial, the value of the coins was "zero." Former Husband explained that, since 2014, he had to use the coins "to supplement and pay for house bills," "buy[ ] my own food, pay[ ] electric, water, TV, phone, et cetera," and buy a Dodge truck. The truck cost $9,000. Former Wife disagreed that Former Husband spent the coins. Still, she noted she used them to buy an $800 cruise ticket.
The trial court entered its final judgment of dissolution of marriage. The court equitably distributed the vending machine business, finding that it was marital "in that it comingled [sic] marital funds during the party's marriage." The court also equitably distributed the coin collection, finding that it was worth $36,000: Next, to protect its award of child support, the court ordered Former Husband to "obtain within 30 days of this order a life insurance policy in the amount of $25,000.00, with the children listed as beneficiaries." The court further found that the Dodge truck was marital property, subject to equitable distribution.
Berg v. Young, 175 So.3d 863, 867 (Fla. 4th DCA 2015) (alteration in original) (quoting Bell v. Bell, 68 So.3d 321, 328 (Fla. 4th DCA 2011) ).
Former Husband first argues on appeal that the trial court erred in classifying his vending machine business as a marital asset, and thus equitably distributing it. The business was a premarital asset, and so only its enhanced value during the marriage should have been distributed. Below, however, the court determined that the whole business was a marital asset and subject to equitable distribution because it was commingled with marital funds during the marriage.
The trial court erred. As a preliminary matter, we note that there was no evidence of commingling, and so our review turns to whether there was any enhancement of value to the premarital business. Section 61.075(6)(a)1.b., Florida Statutes (2016), states that only the enhanced value of non-marital assets resulting from the efforts of either party during the marriage will become marital. Our case law is reflective of the statute. See Pereboom v. Pereboom, 959 So.2d 1205, 1206 (Fla. 4th DCA 2007) ; Anson v. Anson, 772 So.2d 52, 55 (Fla. 5th DCA 2000) ; Hanks v. Hanks, 553 So.2d 340, 341–42 (Fla. 4th DCA 1989). Here, pursuant to Pereboom, Former Husband satisfied his initial burden at trial of proving that he owned the business ten years before the marriage. Pereboom, 959 So.2d at 1206. Thus, as Pereboom next mandates, the burden shifted to Former Wife to prove that the premarital business in some way became partly marital through an enhancement of value. Id. However, just like the former wife in Pereboom, she failed to do so. Id. Accordingly, we reverse the court's equitable distribution of the vending machine business.
We note that, if anything, the admitted evidence appears to show that the business actually decreased in value throughout the marriage. Former Husband testified that during the marriage, the value of the business declined, and, ultimately, Former Wife agreed that at the time of dissolution, the business had only twenty-three machines, considerably less from the "eighty plus machines" that Appellant testified he had at the time of marriage. Thus, it appears that the value of the business decreased over time, such that no part of it became a marital asset subject to equitable distribution.
This Court reviews the trial court's valuation of a marital asset for purposes of equitable distribution for an abuse of discretion. Dorworth v. Dorworth, 176 So.3d 336, 338 (Fla. 5th DCA 2015). "A valuation not supported by competent substantial evidence fails." Banton v. Parker–Banton, 756 So.2d 155, 156 (Fla. 4th DCA 2000).
Former Husband contends that the trial court erred in its valuation of the marital coin collection for purposes of equitable distribution. At trial, Former Wife presented evidence that the value of the coins in 2011 was $36,000. In its final judgment, the court decided to adopt this $36,000 valuation. However, Former Husband argued below and on appeal, there was clear, uncontradicted evidence that by the time of filing the petition for dissolution in 2014, the value of the coins was "about ten, twelve thousand dollars total." Moreover, by the time of trial, the value of the coins was "zero." As noted above, Former Husband testified that he used the coins to pay his living expenses. Although Former Wife denied these assertions of depletion, she appeared to contradict herself by stating that she herself took $800 in coins to buy a cruise ticket.1
A final judgment of any distribution of marital assets or liabilities "shall be supported by factual findings in the judgment or order based on competent substantial evidence ...." § 61.075(3), Fla. Stat. The appropriate date for determining assets "to be identified or classified as marital assets" in this case is "the date of the filing of a petition for dissolution of marriage." § 61.075(7), Fla. Stat. Moreover, "[a]s a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings." Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008).
The evidence indicates that the coin collection was significantly less than $36,000 as of the commencement of the dissolution proceedings, and was further depleted during the course of the dissolution. Former Husband maintains that none of the depletion/dissipation was a result of marital misconduct. We recognize that the trial court could have valued the coins based on an express finding of dissipation. However, "[t]o include a dissipated asset in the equitable distribution scheme, there must...
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