Opinion
Case No. 2D19-1268
07-10-2020
Cremilde Grilo Nobre GILES, Appellant, v. Jason GILES, Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant. Mark A. Neumaier, Tampa, for Appellee.
Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.
Mark A. Neumaier, Tampa, for Appellee.
BLACK, Judge.
Cremilde Giles, the former wife, appeals from the final judgment of dissolution of her marriage to Jason Giles, the former husband. The former wife seeks reversal of the judgment with respect to alimony, child support, and equitable distribution determinations made by the trial court. We agree with the former wife's arguments regarding several of these issues and therefore reverse the final judgment in part.
The parties were married in September 2000, and they have one child together. The former husband filed the petition for dissolution of marriage in August 2017, one month before the marriage reached the long-term marriage mark of seventeen years. The former wife filed her counterpetition in October 2017.
The parties were married in Germany and lived there until 2009. The former wife worked in the restaurant industry, and the former husband was in the military. At the time of the parties’ marriage, the former wife owned an apartment in Germany and a property in Portugal. Within a year of the marriage, upon the birth of the parties’ child, the former wife became a stay-at-home parent. From 2001 through 2004 the former wife did not work outside of the home; the former wife returned to full-time work in the restaurant industry in 2005. In 2009 the parties moved to Florida. The former husband's income increased, and the former wife no longer worked with regularity. Although the former wife has several medical conditions which impact her physical abilities, she indicated that she wished to further her education and, upon completion of a collegiate program, obtain employment. However, the former wife did not provide evidence regarding the costs of such education or the likelihood of employment upon completion of her education.
The former husband stipulated that at the time of the dissolution the former wife owned an apartment in Portugal which was nonmarital. Four other properties in Portugal are held in the former wife's name alone, but the status of those properties was disputed at the final hearing. The value of the parties’ marital residence in Florida was also disputed.
The former wife sought permanent alimony and contended that the marriage should be viewed as a long-term marriage. The former husband asserted that the former wife should receive no alimony and argued that the marriage was of moderate term. The final judgment of dissolution was rendered December 21, 2018. At that time, the former husband was forty-six and the former wife was fifty-six. I. Alimony
The former wife sought permanent alimony in her counter-petition; the former husband contested the request and argued that the former wife should receive no alimony. The trial court found that rehabilitative alimony coupled with durational alimony was appropriate and that permanent alimony was not appropriate. The court also found that the former wife had presented a rehabilitation plan via her deposition testimony indicating a desire to go back to school in order to obtain specific employment. The first issue presented by the former wife is whether the trial court erred in failing to award permanent alimony.
In awarding alimony, "the trial court must determine '(1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award.’ " Shaver v. Shaver, 203 So. 3d 932, 935 (Fla. 2d DCA 2016) (quoting Taylor v. Taylor, 177 So. 3d 1000, 1002 (Fla. 2d DCA 2015) ). Section 61.08, Florida Statutes (2018), provides that "[p]ermanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the [statutory] factors [or] following a marriage of moderate duration if such an award is appropriate based upon clear and convincing evidence after consideration of the [statutory] factors." § 61.08(8). The statute also provides that "there is a rebuttable presumption that ... a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years, and long-term marriage is a marriage having a duration of 17 years or greater." § 61.08(4). Additionally, "[i]n awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties." § 61.08(8).
Here, the marriage length was sixteen years and eleven months. It is therefore presumably a moderate-term marriage. The former wife argues that because the trial court stated, without elaboration, that the marriage was a moderate-term marriage for alimony purposes, the court failed to recognize that it had discretion to determine that this was a long-term marriage. We disagree. Nothing in the statute requires the trial court to make findings as to why it determined the presumption of a moderate-term marriage was not rebutted, and the former wife argued to the trial court that it could determine that the marriage was long-term.
The former wife also argues that her marriage should have been found to be long-term; that is, she contends that she rebutted the statutory presumption of a moderate-term marriage. Specifically, she contends that because the marriage was one month short of a long-term marriage and the marriage was "traditional" in terms of the parties’ roles, she rebutted the presumption of a moderate-term marriage and the trial court should have found that the marriage was long-term. We review this alleged error for an abuse of discretion. Cf. Rodriguez v. Lorenzo, 215 So. 3d 631, 632 (Fla. 3d DCA 2017) ("Because the standard of review is abuse of discretion, and the former wife has not provided this Court with a transcript of the relevant proceedings, the former wife has neither rebutted the presumption against permanent periodic alimony nor shown an abuse of the trial court's discretion." (citation omitted)). There is little guidance to assist us in determining whether the court abused its discretion in effectively determining that the former wife did not rebut the statutory presumption. There is no explanation in the statute, and none that we have found in case law, explaining how a party may rebut the presumption of a moderate- or long-term marriage.
Certainly this presents a close case; had the petition for dissolution been filed one month later than it was, the marriage would have presumptively been long-term. But the former wife relied only upon the nearly seventeen years the parties were married before the dissolution petition was filed and the evidence of the parties’ roles during the marriage to rebut the presumption of a moderate-term marriage. This evidence is insufficient to overcome the statutory presumption when coupled with the abuse of discretion standard. Cf. Dickson v. Dickson, 204 So. 3d 498, 503 (Fla. 4th DCA 2016) ("[N]either age nor a spouse's ability to earn some income alone rebuts the presumption [in favor of permanent alimony in a long-term marriage] .... [I]n almost every case [involving one spouse who has historically been the homemaker in a long-term marriage and a substantial disparity in income], courts have found that permanent alimony was appropriate." (first and fourth alteration in original) (first quoting Cerra v. Cerra, 820 So. 2d 398, 401 (Fla. 5th DCA 2002) ; and then quoting Motie v. Motie, 132 So. 3d 1210, 1213 (Fla. 5th DCA 2014) )). Further, because this was a moderate-term marriage, to award permanent alimony the trial court would have needed clear and convincing evidence. See Margaretten v. Margaretten, 101 So. 3d 395, 397 (Fla. 1st DCA 2012) ; cf. Valente v. Barion, 146 So. 3d 1247, 1249-50 (Fla. 2d DCA 2014) (reversing permanent alimony award in the absence of clear and convincing evidence and remanding for reconsideration).
The former wife argues that the overall alimony award, consisting of rehabilitative and durational alimony, is insufficient and that the former wife did not present the necessary rehabilitative plan in order for the court to award rehabilitative alimony. "The trial court's award of alimony is subject to an abuse of discretion standard of review; and where the record does not contain substantial, competent evidence to support the trial court's findings regarding the amount of alimony awarded, the appellate court will reverse the award." Farley v. Farley, 858 So. 2d 1170, 1172 (Fla. 2d DCA 2003) (internal citation omitted) (citing Wendroff v. Wendroff, 614 So. 2d 590, 594 (Fla. 1st DCA 1993) ).
In the final judgment, the trial court determined that the former wife's deposition testimony regarding the possibility of enrolling in either a translation or medical assistant program at Hillsborough Community College (HCC)—the financial information for which was provided by the former husband's counsel—was a valid rehabilitative plan for the former wife. Notably, there was no testimony regarding the former wife's employability were she to enroll in either program. Nor was there testimony regarding whether the former wife could enroll in either program given that her education level is equivalent to that of the ninth grade in the United States.
The trial court awarded alimony in the amount of $3900 per month, consisting of $1400 in rehabilitative plan costs and $2500 in durational alimony, for three years "as that represents sufficient time per the former wife's own admission [in deposition testimony] for her to be self-supporting and her employment and earnings history through 2009 [in Germany] supports that she is able to earn substantial income when she wants to." After three years, the former wife was to receive $2500 per month as durational alimony for an additional seven years.
Portions of the former wife's deposition testimony were read into the record during the final hearing. Those excerpts established that the former wife, while in Germany, worked as a restaurant or bar manager and earned around $50,000 annually; that the former wife speaks six languages; that the former wife believed that she could not easily obtain a job managing properties at her age; that she planned on going to school and "want[ed] to look in the medical field or translator field"; that the former husband's counsel supplied that the cost was $1200 per course; that the former husband's counsel supplied an "annual total price" of $16,666 for tuition, room and board, and books; that the former wife responded with "I don't know" and "yes" to the total cost statement; that the former wife testified that she did not know the cost of each course but that her plan was to go back to school; and that the former wife answered "yes" to the question of whether she felt that she could be self-supporting after obtaining either degree.
There is little evidence to support the amounts of alimony awarded. See Lovell v. Lovell, 14 So. 3d 1111, 1116 (Fla. 5th DCA 2009). The trial court found that the former wife's financial affidavit was "inflated," claiming a need of $4500 per month. The court appears to have utilized the room and board figures for HCC provided by the former husband's counsel to determine that the former wife's actual expenses will be "substantially less" than claimed on the affidavit. This was error. Counsel's statements are not evidence. See Pena v. Rodriguez, 273 So. 3d 237, 240 (Fla. 3d DCA 2019) ("[T]he argument or proffer of counsel, not rendered under oath, absent a clear stipulation, does not constitute admissible evidence."). And the former wife's testimony during her deposition was not a clear stipulation to the cost of attending HCC. But even if the former husband's counsel's statements during the deposition could be considered evidence because of the former wife's affirmative responses to them, the trial court's alimony award is still not supported by sufficient evidence. The former wife did not expressly request rehabilitative alimony; had she, "detailed evidence regarding the cost of 'the education, the prospects of subsequent employment, and the time it [would] take the receiving spouse to reach an appropriate income level’ " would have been necessary. See Weintraub v. Weintraub, 864 So. 2d 22, 23 (Fla. 2d DCA 2003) (quoting Campbell v. Campbell, 685 So. 2d 61, 62 (Fla. 1st DCA 1996) ). Moreover, the final judgment fails to include the "specific and defined rehabilitative plan" as required by section 61.08(6)(b).
We note, too, that the trial court's rehabilitative award does not consider the fact that for the first of the three years, the parties' minor child would be spending fifty percent of his time with the former wife such that HCC housing may not be sufficient. And although the court found the former wife's financial affidavit to be inflated, it provided no justification other than the lower cost of housing and food at HCC to reduce the former wife's stated need by $600 per month.
As in Lovell, the former wife believes additional education is necessary but has made no effort to apply for such schooling. See 14 So. 3d at 1116. And while information regarding costs was presented by the former husband's counsel, there were insufficient details for the trial court to set a rehabilitative alimony figure, including a lack of evidence as to whether or how much additional education would increase the former wife's earning potential. See id. Accordingly, the rehabilitative alimony award must be reversed; "[o]n remand, the trial court may reconsider not only the dollar amount of the award, but also the length of the award and the impact of the [former] wife's education expenses." See Shaver, 203 So. 3d at 936 ; see also Hann v. Hann, 629 So. 2d 918, 920 (Fla. 2d DCA 1993) (noting that a longer period of rehabilitative alimony may be necessary to cushion the wife's reintroduction into the work force).
The durational alimony award must also be reversed and remanded for reconsideration. There was no evidence presented as to what salary the former wife might make if she were employed in either field following graduation from HCC or what her salary might be if she were employed as a restaurant or bar manager. In Germany, as of 2001, her income equated to roughly $50,000. The trial court effectively imputed income from the former wife's Portugal rental properties by determining that she "has a monthly income" from those properties, but it did not quantify that income, and there was no evidence upon which to base an income figure. Conversely, evidence established that the former husband's salary was $136,600, that his salary had increased over the years, and that the former husband anticipated that his earnings would continue to increase. And while the trial court found that the former wife had a need and the former husband had the ability to pay, the court failed to determine the amount of the former wife's need. See Woelk v. Woelk, 251 So. 3d 359, 359 (Fla. 5th DCA 2018) ; see also Horowitz v. Horowitz, 273 So. 3d 263, 267 (Fla. 2d DCA 2019) ("[E]ven when the court makes findings regarding each of the section 61.08(2) factors, its failure to make findings ‘to allow for meaningful review of the amount of alimony awarded’ constitutes reversible error." (quoting Ketcher v. Ketcher, 188 So. 3d 991, 993-94 (Fla. 1st DCA 2016) )); Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012) (reversing alimony award where the trial court failed to address the parties’ need and ability to pay in terms of net income).
II. Portugal properties
The former wife next argues that the trial court erred in classifying four properties in Portugal as marital assets and including them in the equitable distribution scheme. "We review de novo the characterization of an asset as marital or nonmarital." Tradler v. Tradler, 100 So. 3d 735, 738 (Fla. 2d DCA 2012). There is no dispute that the four properties in question were purchased after the parties were married. "As the spouse trying to show that [real property] acquired during the marriage is a nonmarital asset, [the former wife] had the burden of proof." See Smith v. Smith, 971 So. 2d 191, 193 (Fla. 1st DCA 2007).
The former wife contends that there was no dispute that she purchased the first of the properties, the commercial property in Portimao, with proceeds from the sale of her nonmarital apartment in Germany. The former wife testified at the final hearing that she purchased the four Portugal properties with nonmarital funds therefore making the properties nonmarital. The trial court found her testimony not credible, particularly in light of the former wife's apparent refusal to produce the deeds and other record documentation for the properties. However, the former husband's testimony supports the former wife's contention that the commercial property was purchased with nonmarital funds. The former husband testified that the former wife purchased an apartment and a commercial property in Portimao with the money from the sale of the former wife's nonmarital apartment.
The court's determination that all four of the Portugal properties are marital assets subject to equitable distribution is not supported by the evidence. The former wife rebutted the presumption that two of the properties are marital with evidence establishing that those properties were purchased with nonmarital funds; she established through the former husband's testimony they were "assets acquired ... in exchange for [nonmarital] assets." See § 61.075(6)(b)(1). The remaining two properties in Portugal were properly found to be marital assets.
III. Marital residence valuation
The former wife correctly contends that the trial court abused its discretion in valuing the marital residence because competent substantial evidence does not support the value assigned by the trial court. See Augoshe v. Lehman, 962 So. 2d 398, 402-03 (Fla. 2d DCA 2007). In setting the value of the marital residence at $307,000, the trial court appears to have averaged the value presented by the former wife ($325,000) and the value presented by the former husband ($289,000). "This is an improper method of valuation." Id. at 403. The trial court cannot determine valuation by "split[ting] the difference" or averaging the values presented by the parties. Solomon v. Solomon, 861 So. 2d 1218, 1221 (Fla. 2d DCA 2003) ; accord Vanzant v. Vanzant, 82 So. 3d 991, 992-93 (Fla. 1st DCA 2011). As in Augoshe, Solomon, and Vanzant, there is no evidence supporting the trial court's valuation of the marital residence; we must therefore reverse and remand for the trial court to enter a valuation supported by evidence presented at the final hearing and to adjust the equitable distribution award accordingly. See Augoshe, 962 So. 2d at 403 ; Solomon, 861 So. 2d at 1222 ; Vanzant, 82 So. 3d at 993.
IV. Child support
The final judgment includes $30.84 per month in child support payable by the former husband. The former wife contends that the child support calculation is incorrect.
The parties agreed to equal time-sharing with their then seventeen-year-old child. The former wife claims that in calculating child support the trial court included several figures and credits to the former husband which are not supported by evidence and which reduced his income for child support purposes.
The former wife is correct that despite finding that the former husband's gross income is $152,070.19, the court used $145,083.96 as the gross income for child support calculations. There is also no support for the $1872.52 deducted from the former husband's monthly gross income in the worksheet for "taxes, Social Security and Medicare." These discrepancies require reversal. Cf. Carmack v. Carmack, 277 So. 3d 185, 186 (Fla. 2d DCA 2019). Ultimately, and regardless of the errors in calculating child support, remand for reconsideration and recalculation of the alimony awards necessitates recalculation of the child support.
V. Conclusion
The final judgment of dissolution of marriage is affirmed insofar as it dissolves the parties' marriage and as to all determinations not discussed herein; the final judgment is reversed and remanded for further proceedings as discussed herein as it concerns alimony, equitable distribution, and child support.
Affirmed in part; reversed in part; remanded.
ROTHSTEIN-YOUAKIM and ATKINSON, JJ., Concur.