Tate v. Tate
| Decision Date | 15 June 2012 |
| Docket Number | No. 2D11–1811.,2D11–1811. |
| Citation | 91 So.3d 199 |
| Parties | Carmen A. TATE, Appellant, v. Scott R. TATE, Appellee. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Virginia R. Vetter, Tampa, for Appellant.
Gary E. Williams and Matthew W. Wilson of The Law Firm for Family Law, Clearwater, for Appellee.
Carmen A. Tate (the Wife) appeals the final judgment that dissolved her marriage to Scott R. Tate (the Husband). The Wife raises four issues. She challenges the financial arrangements regarding the parties' beach condominium unit, various provisions of the equitable distribution scheme, the trial court's omission to address the prepaid college funds established for the parties' three minor children, and the calculation of the child support award. There is no cross-appeal. We affirm in part, reverse in part, and remand for further proceedings.
The parties were married in 1999. They had three minor children. The Husband filed a petition for dissolution of marriage on March 31, 2009, and the Wife filed a counterpetition.
At the time of the final hearing, the Husband was employed as an information technology manager for a national company. He earned approximately $8900 per month. The Hillsborough County School Board employed the Wife as a school nurse. She earned approximately $2830 per month.
The parties owned a home in Valrico in Hillsborough County. They also owned a condominium unit located on the beach in Treasure Island in Pinellas County. The parties used the condominium as a rental. Before the dissolution proceeding began, the parties had several investment and deferred compensation accounts. The parties exhausted most of the assets in these accounts during the course of the dissolution proceeding with living expenses, the purchase of a new automobile by the Husband, and the cost of the litigation.
The trial court heard the case over three days in October 2010. In its final judgment, the trial court ordered the parties to observe an alternating weekly time-sharing arrangement for the children. The Husband was obligated to pay the Wife child support of $95 per month. The trial court also ordered the Husband to pay the Wife durational alimony of $1900 per month for a period of ten years.
The trial court ordered the parties to sell the condominium and to divide the net proceeds but directed that the Wife would be responsible for the payment of the mortgage and other expenses of the condominium until it sold. The parties' remaining assets—with the exception of prepaid college funds for the children—were equitably distributed. The trial court declined the Wife's request for the exclusive use of or title to the marital home. Instead, the trial court allocated that asset to the Husband in the equitable distribution scheme, along with the responsibility for payment of the first mortgage and a home equity line of credit.
The Wife filed a motion for rehearing raising numerous issues. The trial court subsequently entered an amended final judgment that addressed matters not pertinent to this appeal and denied the motion in all other respects. The Wife's appeal followed.
We find no reversible error in the calculation of the child support award. This issue does not warrant further discussion. We do find merit in the other three issues raised by the Wife. We turn now to a discussion of these issues.
The parties owned the condominium located on the beach in Treasure Island as tenants by the entireties. Before the separation, they had used the condominium as a short-term rental unit. The production of income from the condominium was contingent on the parties' ability to keep it rented to suitable tenants.
The condominium was subject to a mortgage. The monthly payment on the mortgage was initially $1800. The Wife testified—without contradiction by the Husband—that the condominium had never generated a positive cash flow. The parties' income tax returns for 2008 and 2009 confirmed that the rental of the condominium operated at a loss.
After the parties separated, the Husband lived briefly in the condominium. He soon relocated to a residence closer to the marital home where the Wife continued to reside with the children. After the Husband vacated the condominium, the Wife assumed responsibility for renting it and for paying the mortgage and other expenses of the property. Because the partieshad not paid the property taxes for 2009, the holder of the first mortgage required an escrow to cover the taxes. This requirement resulted in an increase in the amount of the monthly mortgage payment from $1800 to $2993.
The amended final judgment included the following provision concerning the condominium:
The condominium owned by the parties ... shall be sold and the net seller's proceeds shall be divided between the parties. Until the condominium is sold, the Wife shall be responsible for the management and leasing of the condominium.... During the period of time between the Final Judgment and the closing of the sale of the condominium, the Wife shall be solely responsible for the mortgage(s) and for the Home Owner's Association dues and fees and for all other costs and expenses related to her ownership of the condominium. The Wife will indemnify the Husband against any losses he may suffer as a result of the Wife's failure to make payment on said mortgage(s) or Home Owner's assessments.
Thus the trial court did not grant possession of the condominium unit to either of the parties. In effect, the trial court continued the Wife in her role as the manager of the condominium. However, the trial court required the Wife to pay the mortgage and all other expenses of the property pending its sale. Notably, the trial court made no provision for the Wife to receive credits for any shortfall from the net sales proceeds. The Wife argues that this provision is erroneous as a matter of law. We agree.
The trial court erred in requiring the Wife to bear all of the expenses of the condominium pending its sale. Upon the entry of the final judgment of dissolution of marriage, the parties became tenants in common of the condominium. See§ 689.15, Fla. Stat. (2010); Johnson v. Johnson, 902 So.2d 241, 243 (Fla. 1st DCA 2005). As we have noted, the trial court did not give either of the parties exclusive possession of the condominium. Under these circumstances, the parties are entitled to their proportionate share of the actual income, less their proportionate share of the expenses until they sell the condominium. See Kelly v. Kelly, 583 So.2d 667, 668 (Fla.1991); Hughes v. Krueger, 67 So.3d 279, 282 (Fla. 5th DCA 2011); Green v. Green, 16 So.3d 298, 300 (Fla. 1st DCA 2009). Upon the sale of property held as a tenancy in common, a party who has paid more than his or her proportionate share of the expenses is entitled to a credit against his or her share of the net proceeds. Kelly, 583 So.2d at 668;McFall v. Trubey, 992 So.2d 867, 869 (Fla. 2d DCA 2008). Accordingly, we reverse the provision in the amended final judgment regarding the disposition of the condominium. On remand, the trial court shall enter an amended final judgment addressing the disposition of the condominium in a manner consistent with this opinion.
The Wife asserted various errors in the equitable distribution scheme fashioned by the trial court. We will address these issues separately.
On the last day of the three-day final hearing, the parties did not have sufficient time to present their closing arguments. The parties agreed to submit proposed final judgments for the trial court's consideration in lieu of submitting their closing arguments in written memoranda. Each of the proposed final judgments contained a detailed equitable distribution schedule.
The Wife challenges the trial court's inclusion of various credit card liabilities in the equitable distribution scheme and the allocation of those liabilities between the parties. However, the trial court's treatment of these items is substantially in accordance with the equitable distribution schedule included in the Wife's proposed final judgment. Thus, to the extent that the trial court's treatment of the credit card liabilities is in error, the Wife invited that error.1 “It is well settled that under the invited error rule ‘a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make.’ ” Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654, 655 (Fla. 4th DCA 1996) (quoting Gupton v. Village Key & Saw Shop, 656 So.2d 475, 478 (Fla.1995)). Accordingly, with one exception, we decline to hold that the trial court's handling of the credit card liabilities in the equitable distribution scheme amounted to reversible error.
We do find reversible error with regard to one item. In the Wife's proposed final judgment, she listed Capital One account # 0677 for $15,304.25 as the Wife's liability and Capital One account # 0947 for $19,237.25 as the Husband's liability. The trial court allocated these items in accordance with the Wife's proposal: the $15,304.25 item was assigned to the Wife, and the $19,237.25 item was assigned to the Husband. However, Capital One renumbered account # 0677 as account # 0947 in March or April 2010. There was only one account, and this account was in the Wife's name. The $19,237.25 liability includes the lesser amount. Therefore, the $15,304.25 item assigned to the Wife in the amended final judgment is a duplicate of the $19,237.25 item assigned to the Husband. Although the Wife bears substantial responsibility for causing this error, the trial court must correct it on remand. A trial court cannot properly make an equitable distribution of the same liability twice.
In the amended final judgment, the trial court assigned to the Wife three Chase bank accounts that...
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