On appeal from The Circuit Court for Escambia County ">

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Date: 06-19-2022

Case Style:

Janett Maxine Smith vs George Andrew Wellington Smith

Case Number: 20-2419

Judge:

Harvey L. Jay, III


Thomas Dannheisser

Court:

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA

On appeal from The Circuit Court for Escambia County

Plaintiff's Attorney:





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Defendant's Attorney: Laura E. Keene of Beroset & Keene

Description:

Tallahassee, Florida - Divorce lawyer represented Appellant with appealing the judgment of Dissolution of Marriage.


A trial court in a dissolution matter must make specific
findings of fact that are tailored to the relevant statute—whether
it be for alimony, the equitable distribution of marital assets, or
child support. See § 61.08, Fla. Stat. (alimony); § 61.075, Fla. Stat.
(equitable distribution); § 61.13, Fla. Stat. (child support). Because
dissolution proceedings are in equity, the trial court has significant
discretion, and its factual findings are entitled to much deference
from an appellate court. Rosen v. Rosen, 696 So. 2d 697, 700 (Fla.
1997) (“The legislature has given trial judges wide leeway to work
equity in chapter 61 proceedings.”); Herzog v. Herzog, 346 So. 2d
56, 58 (Fla. 1977) (reaffirming that in an appellate proceeding, “the
trial court’s findings of fact are shielded from attack and are
clothed with a presumption of validity” unless they lack
substantial evidentiary support).
However, there is appellate review to be done, and we
typically review dissolution judgments to ensure that the statutory
factors have been addressed and that there is sufficient evidence
to support the trial court’s factual determinations. Specific factual
findings by the trial court facilitate an appellate court’s review in
this respect. But the absence of those findings makes that review—
in any meaningful sense—nearly impossible. Thus, the trial court’s
findings of fact are indispensable to the appellate process. McCarty
v. McCarty, 710 So. 2d 713, 715 (Fla. 1st DCA 1998) (requiring the
trial court to make factual findings “serves the laudatory goals of
avoiding arbitrary outcomes and facilitating efficient appellate
review”). Or, more practically speaking, if the trial court fails to
make these necessary findings, it can frustrate appellate review.
Id.; see also Miller v. Miller, 589 So. 2d 317, 317 (Fla. 1st DCA
1991) (“[B]ecause the trial court failed to include specific findings
with respect to the alimony, asset distribution, child support,
imputed income, retirement plan and attorney fee issues,
meaningful appellate review of the judgment appealed from is
precluded.”).
II.
The alimony statute requires the trial court to “first make a
specific factual determination as to whether either party has an
actual need for alimony or maintenance and whether either party
3
has the ability to pay alimony or maintenance.” § 61.08(2), Fla.
Stat. If the court finds that alimony is warranted under this
standard, it must then determine the appropriate type and amount
of alimony based on “all relevant factors, including, but not limited
to:
(a) The standard of living established during the
marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of
each party.
(d) The financial resources of each party, including the
nonmarital and the marital assets and liabilities
distributed to each.
(e) The earning capacities, educational levels, vocational
skills, and employability of the parties and, when
applicable, the time necessary for either party to acquire
sufficient education or training to enable such party to
find appropriate employment.
(f) The contribution of each party to the marriage,
including, but not limited to, services rendered in
homemaking, child care, education, and career building
of the other party.
(g) The responsibilities each party will have with regard
to any minor children they have in common.
(h) The tax treatment and consequences to both parties
of any alimony award, including the designation of all or
a portion of the payment as a nontaxable, nondeductible
payment.
(i) All sources of income available to either party,
including income available to either party through
investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice
between the parties.”
4
Id. Without the benefit of this statutory analysis, an appellate
court is unable to determine if the moving party proved his or her
need for alimony. See Dal Ponte v. Dal Ponte, 692 So. 2d 283, 284
(Fla. 1st DCA 1997) (“Without proper statutory findings, we
cannot determine if Former Wife proved need for the alimony
awarded.”).
Similarly, the equitable distribution statute states that any
“distribution of marital assets . . . shall be supported by factual
findings in the judgment or order based on competent substantial
evidence with reference to the factors enumerated in subsection
(1).” § 61.075(3), Fla. Stat. Pointedly, it directs that the
distribution of assets “shall include specific written findings of fact
as to the following:
(a) Clear identification of nonmarital assets and
ownership interests;
(b) Identification of marital assets, including the
individual valuation of significant assets, and
designation of which spouse shall be entitled to each
asset;
(c) Identification of the marital liabilities and designation
of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or
the reviewing court of the trial court’s rationale for the
distribution of marital assets and allocation of liabilities.”
Id. “Without such findings, the appellate court is unable to conduct
a meaningful review of the distribution ordered by the trial court.”
Navarro v. Navarro, 209 So. 3d 74, 75 (Fla. 1st DCA 2016) (citing
Shoffner v. Shoffner, 744 So. 2d 1157, 1157–58 (Fla. 1st DCA
1999)); see also Williams v. Williams, 133 So. 3d 605, 606 (Fla. 1st
DCA 2014) (the trial court “must make specific written findings of
fact identifying marital assets and individually valuing significant
assets”).
In the present case, the trial court’s judgment includes only
cursory and conclusory factual determinations (e.g., simply stating
that it considered all the factors). This was error, and the former
5
wife preserved the issue for appeal in her Motion for
Rehearing/Reconsideration. See Owens v. Owens, 973 So. 2d 1169
(Fla. 1st DCA 2007). Because a proper review of the trial court’s
decision evades us, remand is necessary for the trial court to
reevaluate its award of alimony and the equitable distribution of
marital assets by making the necessary findings of fact. See
Fulmer v. Fulmer, 961 So. 2d 1081, 1082 (Fla. 1st DCA 2007).
Those findings should be tailored to the statutory factors set out in
sections 61.08(2) and 61.075(1) and (3), Fla. Stat.
III.
The former wife also argues the trial court failed to address
her claim that the former husband must obtain life insurance to
secure an award of alimony. “To the extent necessary to protect an
award of alimony, the court may order any party who is ordered to
pay alimony to purchase or maintain a life insurance policy or a
bond, or to otherwise secure such alimony award with any other
assets which may be suitable for that purpose.” § 61.08(3), Fla.
Stat.; Ruberg v. Ruberg, 858 So. 2d 1147, 1156 (Fla. 2d DCA 2003).
Generally, when life insurance is ordered to secure an award of
permanent alimony, the trial court must make findings that the
required life insurance is reasonably available and reasonably
affordable to the obligor. See Payton v. Payton, 109 So. 3d 280, 283
(Fla. 1st DCA 2013); Norman v. Norman, 939 So. 2d 240, 241 (Fla.
1st DCA 2006). In the present case, even though the former wife
requested life insurance during the final hearing and again in her
Motion for Rehearing/Reconsideration, the trial court failed to
acknowledge the plea in the Amended Final Judgment. This
omission was error, and remand is required for the court to address
whether the former husband must secure any alimony award with
life insurance. See Duffey v. Duffey, 972 So. 2d 290, 292 (Fla. 5th
DCA 2008).

Outcome: To summarize, we reverse the Amended Final Judgment to
the extent it (1) lacks the necessary findings of fact concerning the
award of alimony and the equitable distribution of the parties’
assets and (2) fails to address the former wife’s life insurance
claim.* We remand the case to the trial court to address these
omissions in a manner consistent with this opinion.

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