Smith Family Law Update: Week of March 13, 2017 (HAPPY ST. PATRICK'S DAY!)
Viscito v. Viscito: 3rd DCA, March 15, 2017:
On rehearing the 3rd DCA withdrew and replaced its pervious ruling of December 21, 2016 as follows:
Equitable Distribution: Marital Condo (good Kaaa discussion):
Wife and sister bought a condo prior to Wife being married. Upon being married, Wife and Husband bought sister's 50% share. The condo remained in Wife's name. At the time of marriage the fair market value was $225,000.00 with a mortgage of $133,000.00. At the time of trial the fair market value was $690,000.00 with a mortgage of $224,448.00. The passive appreciation was calculated properly by the trial court by taking the Loan-to-value ratio at time of marriage (.522) x Current fair market value ($699,000.00) = $360,180.00 - Current mortgage amount ($224,448.00) = Total passive appreciation ($135,732.00). Trial court did not abuse its discretion by only awarding Husband 50% of the passive appreciation ($67,866.00) for his entire share of the condo even though some marital funds had been used to acquire sister's 50% share and to make certain mortgage payments as Husband's voluntary unemployment and gambling losses had caused the aggregate mortgage debt to increase. Husband's argument that he should be awarded based on ½ of the net fair market value, plus one 1/2 of the passive appreciation on Wife's marital interest, plus certain mortgage payments from marital funds which reduced the mortgage debt on the non-marital debt was rejected. Husband's position did not take into consideration his gambling loss and unemployment ramifications nor did his calculation comply with the requirements of Kaaa.
Alimony:
Husband had only pled for permanent alimony (no other form or forms of alimony) based on the 21 year marriage. The trial court's rejection of this request was supported by the record as evidence existed to show that Husband was employable but voluntarily unemployed and Husband's gambling debts and misuse of marital funds adversely affected the family's financial position and lifestyle (Fla. Stat 61.08(2)). Further, Husband could not request other forms of alimony as he had only requested permanent alimony.
Pierre v. Jonassaint: 3rd DCA, March 15, 2017:
Trial court did not err in denying rehearing based on alleged fraud without an evidentiary hearing as Wife had failed to raise her allegations of fraud with sufficient specificity to raise a colorable claim of entitlement to relief. However, trial court did err by not including specific written findings of fact in the final judgment to "facilitate effective appellate review of the trial court's property distribution scheme." The court's referencing the parties' financial affidavits was inadequate as the final judgment did not correspond with either financial affidavit and the final judgment only specifically referenced two marital assets, neither being clearly identified or valued.
Posted by Roy Smith on Mar 17th 2017
