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Date: 07-09-2022
Case Style:
OSCAR O. OLGUIN vs ANIEN Y. OLGUIN, ET A
Case Number: 21-3577
Judge:
Morris Silberman
Court:
DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
On Appeal From The Circuit Court for Hillsborough County
Emily A. Peacock
Judge
Plaintiff's Attorney:
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Defendant's Attorney: John R. Lonergan of John R. Lonergan, P.A.
Description:
Tampa., Florida - Divorce lawyer represented Appellant with seeking review of the final judgment dissolving his marriage.
Oscar O. Olguin (the Former Husband) seeks review of the
final judgment dissolving his marriage to Anien Y. Olguin (the
Former Wife).1
The Former Husband also appeals an order granting
a directed verdict that disposes of the case as to Manuel Torrecilla,
who is the Former Wife's father and a third-party respondent, on a
claim for resulting trust. The Former Husband raises three issues
on appeal. He has failed to show error on issue three, and we do
not discuss it further. As to issue one, we reverse the final
judgment concerning the durational alimony, child support, and the
failure to attach a complete equitable distribution worksheet to the
judgment and remand for further proceedings. As to issue two, we
reverse the order directing a verdict in favor of Torrecilla on the
claim for a resulting trust and remand for further proceedings.
Otherwise, we affirm the final judgment as to the dissolution of the
parties' marriage and all other determinations in the final judgment
not discussed below.
1 The Former Wife's counsel filed a notice that the Former Wife
would not be filing a brief "due to her financial inability to afford
appellate counsel."
3
On December 19, 2017, the Former Husband filed a petition
for dissolution of marriage. This was a moderate-term marriage of
fourteen years and nine months. During the marriage, the Former
Husband and the Former Wife resided at 613 Clayton Avenue (the
marital home). Torrecilla financed the purchase of the marital
home, and the Former Husband and the Former Wife have an
outstanding mortgage on the home with payments due to Torrecilla
of $850 per month. At the time of the final hearing, the parties had
three minor children. The parenting plan is not at issue. The
Former Wife sought durational alimony of $1,000 per month for ten
years.
The Former Husband filed an amended petition that added a
second count for resulting trust against Torrecilla concerning a
rental property located at 2903 44th Street West (the rental
property) that Torrecilla had purchased in 2011. The Former
Husband alleged that Torrecilla purchased the rental property "with
the intent that Husband and Wife would pay the full balance of the
property" in order to acquire title from Torrecilla. The Former
Husband further alleged that he and the Former Wife had
contributed substantial marital funds to the rental property and
4
that the trial court should declare the rental property to be marital
property and that it should be subject to equitable distribution.
Torrecilla denied these allegations.
The trial court conducted a three-day trial. Regarding the
claim for a resulting trust, the Former Wife testified that she had
helped her father manage the rental property for nine months in
2011. She denied that she and the Former Husband ever paid any
marital funds to her father toward the rental property.
Before the Former Husband completed his case-in-chief and
before he testified regarding his claim for a resulting trust on the
rental property, the trial court sua sponte questioned the Former
Husband's counsel regarding the law applicable to resulting trusts.
The trial court acknowledged that the Former Husband had not yet
testified on the issue but asked what the Former Husband's
testimony would be. The Former Husband's counsel provided a
brief summary. Both parties then presented argument to the court.
At one point the Former Husband's counsel asserted that
Torrecilla's argument was based on the Former Wife's testimony
and reiterated that the Former Husband had not yet testified. The
court expressed doubt that the Former Husband could establish a
5
resulting trust based on the applicable law. Torrecilla's counsel
subsequently asked if she could "move for summary judgment at
this time." The trial court orally granted the motion for summary
judgment on count two at the final hearing.
In its written order, the trial court stated that it was treating
the ore tenus motion for summary judgment as a motion for
directed verdict because "trial had commenced and evidence on the
subject was received." In granting the motion, the trial court used
words of finality, stating that the Former Husband "shall take
nothing by this action" and that "Torrecilla shall go hence without
day." In the Former Husband's motion for rehearing on the order
granting a directed verdict, he asserted that he "was not allowed to
present his complete case" on a resulting trust. The trial court
denied the motion.
On October 15, 2020, the trial court entered the final
judgment which provided for an equal equitable distribution, with
the parties agreeing to the sale of the marital home. The court
ordered the parties to list the marital home for sale with a realtor
within two weeks of the date of the final judgment. The trial court
determined the incomes and expenses of the Former Wife and the
6
Former Husband, as discussed below in issue one, and awarded
durational alimony to the Former Wife. The trial court found that
the Former Wife had the need for and the Former Husband had the
ability to pay $500 per month for seven years. The trial court also
awarded child support and retroactive child support to the Former
Wife for a variety of time periods based on their incomes.
The Former Husband filed a motion for rehearing and for relief
from judgment under Florida Family Law Rule of Procedure
12.540(b). The trial court denied the motion, and this timely appeal
ensued.
I. ALIMONY, CHILD SUPPORT, AND EQUITABLE DISTRIBUTION
WORKSHEET
In issue one, the Former Husband makes arguments
concerning alimony, child support, and the lack of a complete
equitable distribution worksheet. We reverse the final judgment as
to these issues and remand for further proceedings, as explained
below.
A. Alimony
7
The Former Husband argues that the trial court erred in its
award of durational alimony by failing to properly consider the
factors in section 61.08(2), Florida Statutes (2017); by failing to
make sufficient findings on the amount of the award; and by
making findings that were not supported by competent, substantial
evidence. The trial court made findings concerning the factors in
section 61.08(2)(a)-(j), and the Former Husband does not
specifically argue any deficiency in these findings. The Former
Husband does argue that the trial court failed to explain its
calculations and make sufficient findings on the amount of alimony.
The court found that the Former Wife's gross monthly income
was $4,815 and that her net after deducting health insurance for
herself was $3,025. The court found that her stated monthly
expenses of $5,502 were inflated and that her reasonable expenses
were $4,500. Her August 17, 2020, financial affidavit showed a
deficit of $2,477.
As to her housing costs for the marital home and her monthly
deficit, the trial court found:
While Wife's expenses include a reasonable $850.00 per
month for housing (which is paid to her father), she
hasn't been able to afford to pay same since December
8
2016. Her father has not foreclosed on her, nor does this
Court believe he would. After the marital home is sold,
she will have a housing expense most likely significantly
more than $850.00 per month. She has a deficit of
$1,475.00 per month.
Thus, the trial court found that the Former Wife's reasonable
expenses were $1,002 less than that stated on her financial
affidavit, but the court did not set forth which expenses it had
deducted. It appears that even though the Former Wife was not
making the mortgage payments, the court considered the $850
monthly payment to her father, Torrecilla, as an expense. Because
the court ordered the marital home to be put on the market for sale
back in October 2020, it is highly likely that the Former Wife
currently has different housing with different expenses.
The court found that the Former Husband's gross monthly
income was $8,202 and that his net after deducting health
insurance for himself was $5,861. The court stated that it found
several errors in the Former Husband's financial affidavit of August
14, 2020, that showed a monthly deficit of $1,785. The court found
that the financial affidavit understated gross income by $463,
overstated a mandatory retirement expense by $770.34, and
overstated the cost of his individual health insurance by $97.10.
9
The financial affidavit also double counted an auto loan expense of
$588. Based on these changes, the court found the Former
Husband to have a surplus of $133 per month. The trial court
found that this was "before considering the overstatement of
monthly rent."
As to rent, the Former Husband testified that he lives with his
girlfriend and that they each pay $1,300 per month in rent, for a
total of $2,600. The Former Husband testified that the rent
included security, recreational amenities, lawn care, cable, and
internet. He admitted that the $118 on his financial affidavit for
cable television should be removed. The Former Husband testified
that he was renting a four-bedroom house so each child would have
a bedroom.
The trial court determined that the Former Wife had the need
for and the Former Husband had the ability to pay durational
alimony of $500 per month for seven years. See ยง 61.08(7) (stating
that a durational alimony award "may not exceed the length of the
marriage").
Section 61.08(2) requires the trial court to "make a specific
factual determination as to whether either party has an actual need
10
for alimony or maintenance and whether either party has the ability
to pay alimony or maintenance." When a trial court fails to make
specific findings on need and ability to pay, it "may preclude
meaningful appellate review." Horowitz v. Horowitz, 273 So. 3d
263, 267 (Fla. 2d DCA 2019) (quoting Ruberg v. Ruberg, 858 So. 2d
1147, 1155 (Fla. 2d DCA 2003)). And "even 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." Id. (quoting Ketcher
v. Ketcher, 188 So. 3d 991, 993, 994 (Fla. 1st DCA 2016)); see also
Giles v. Giles, 298 So. 3d 1277, 1283 (Fla. 2d DCA 2020) (quoting
Horowitz, 273 So. 3d at 267) (same). As to the calculation of the
Former Wife's income and the trial court's determination that her
expenses were overstated by $1,002, "without factual findings it is
impossible to tell which values the court accepted." Horowitz, 273
So. 3d at 268.
The Former Husband also contends that the trial court should
have considered as income the $850 per month that the Former
Wife was not paying her father for mortgage payments, citing
Cooper v. Kahn, 696 So. 2d 1186 (Fla. 3d DCA 1997). In Cooper,
11
the wife's mother paid the wife's living expenses in a "continuing
and ongoing nature," and the appellate court affirmed the
imputation of income on that basis. Id. at 1188. Here, Torrecilla
has not paid the Former Wife's expenses out-of-pocket. Rather, he
has not sought to foreclose on the mortgage loan he made to both
parties. He testified that he expected to be paid in full when the
property sold. In any event, it appears that the situation is likely to
be different now if the property has sold and the Former Wife has
found other housing.
Further, although the court found that the Former Wife had a
$1,475 deficit, it found that she had a need of $500. This may be
due to the trial court's finding that the Former Husband had an
ability to pay $500, but the findings as to the Former Husband's
ability to pay are insufficient for us to conduct a meaningful
appellate review.
The Former Husband specifically argues that no competent,
substantial evidence supports the trial court's finding that $2,600
was not a reasonable rental amount for his residence. The trial
court did not explain in its order how it came to this determination
except to say that "$2,600.00 per month for rent is very high and
12
not reasonable." The trial court did not state what amount it
considered reasonable. No evidence was presented on reasonable
rental values in the area for a four-bedroom home that included
security, recreational amenities, lawn care, cable, and internet.
After adjusting amounts on the Former Husband's affidavit,
the trial court determined that the Former Husband had a monthly
surplus of $133 but found that he had an ability to pay $500 a
month in alimony. We note that the trial court did not reduce the
Former Husband's monthly expenses by the $118 per month for
cable television that the Former Husband admitted at trial was a
mistake on his affidavit because that amount was included in his
rent. Even then, the Former Husband's surplus would be only
$251 and still not enough to support an ability to pay $500 per
month. We assume that the trial court must have determined some
lesser amount was reasonable for rent but did not set forth
findings. The failure to make such findings hampers our review.
Moreover, none of the evidence presented would support a finding
that $2,600 per month was an unreasonable rent.
Therefore, we reverse and remand for the trial court to
reconsider the award of durational alimony to the Former Wife and
13
to make detailed factual findings on need and ability to pay. See
Horowitz, 273 So. 3d at 268. Because, among other things, the
Former Wife's housing expenses have likely changed, the trial "court
should 'consider the parties' then-current circumstances in
determining the amount of alimony.' " Id. (quoting Ruberg, 858 So.
2d at 1155).
B. Child Support
The Former Husband correctly argues that alimony should
have been considered in determining income for calculation of child
support.
Pursuant to section 60.30(2)(a)9 and (3)(g), Florida
Statutes (1997), the trial court must add to a party's
income any alimony received and subtract alimony paid.
Thus, in a case in which one party is paying alimony to
the other party, alimony, if ordered, must be determined
before child support can be calculated under the
guidelines.
Cornett v. Cornett, 713 So. 2d 1083, 1085 (Fla. 2d DCA 1998); see
also Mobley v. Mobley, 18 So. 3d 724, 728 (Fla. 2d DCA 2009)
(recognizing that a spouse's payment or receipt of alimony is
factored into determining a party's net income for child support
purposes); Storey v. Storey, 979 So. 2d 1057, 1058 (Fla. 2d DCA
2008) (recognizing that alimony must be considered as income in
14
determining the amount of child support). Therefore, we reverse as
to the child support ordered and remand for a recalculation that
considers the receipt and payment of alimony under sections
61.30(2)(a)9 and (3)(g), Florida Statutes (2017).
C. Equitable Distribution
As the Former Husband argues, the equitable distribution
worksheet filed with the final judgment is incomplete. The page
with lines 14-31 appears to be missing, and another page is
duplicated. Thus, we direct the trial court to attach a complete
equitable distribution worksheet to the final judgment it enters on
remand.
II. RESULTING TRUST
The Former Husband contends that the trial court erred in
granting a "directed verdict" on count two for a resulting trust and
incorrectly ruled before the completion of the Former Husband's
case.2
Because the Former Husband had not completed his
2
"A resulting trust arises when one party pays the
consideration for the purchase of property but title is taken in the
name of another." Socarras v. Yaque, 452 So. 2d 992, 994 (Fla. 3d
DCA 1984) (citing Dep't of Revenue v. Zuckerman-Vernon Corp., 354
So. 2d 353, 356 (Fla. 1977)). As to timing, a resulting trust arises
"at the instant legal title vests and the alleged beneficiary must have
15
presentation of evidence on count two, the trial court erred in
granting a directed verdict on that count.
Torrecilla's motion for summary judgment on count two at
trial was inappropriate because a motion for summary judgment is
a pretrial mechanism. See Williams v. Washington, 120 So. 3d
1263, 1264 (Fla. 1st DCA 2013). Although the trial court stated
that it was granting a directed verdict, see Fla. R. Civ. P. 1.480, the
equivalent in a bench trial is an involuntary dismissal, see Fla. R.
Civ. P. 1.420(b); Fla. Fam. L. R. P. 12.420(b).
Rule 12.420(b) provides in pertinent part:
After a party seeking affirmative relief in an action has
completed the presentation of evidence, any other party
may move for a dismissal on the ground that on the facts
and the law the party seeking affirmative relief has
shown no right to relief, without waiving the right to offer
evidence if the motion is not granted.
Thus, "a trial court may not involuntarily dismiss an action before
the plaintiff has rested its case." Fischer v. Fischer, 195 So. 3d
paid the purchase price or bound himself by an absolute obligation
to pay it." Id.; see also Harnish v. Peele, 386 So. 2d 8, 10 (Fla. 5th
DCA 1980) (determining that there was no resulting trust when
"Peele had no binding obligation to pay the Harnishes").
16
1170, 1172 (Fla. 4th DCA 2016); see also Bank of N.Y. Mellon v.
Diaz, 232 So. 3d 435, 436 (Fla. 4th DCA 2017) ("[A] trial court may
not involuntarily dismiss a case during trial for insufficiency of
evidence prior to the completion of presentation of evidence by the
plaintiff."); Wells Fargo Bank, N.A. v. Gonzalez, 186 So. 3d 1092,
1096 (Fla. 4th DCA 2016) ("Granting a motion for involuntary
dismissal before the plaintiff has completed its case has due
process implications, because the constitutional guarantee of due
process requires that each litigant be given a full and fair
opportunity to be heard.").
Further, even if a plaintiff is permitted to proffer evidence, it is
error to order an involuntary dismissal before the plaintiff presents
his case-in-chief. See Deutsche Bank Nat'l Tr. Co. v. Altos Del Mar
(7701 Collins Ave) LLC, 187 So. 3d 930, 931 (Fla. 3d DCA 2016)
("We reject appellees' contention that the opportunity to make a
complete proffer prior to entering the involuntary dismissal satisfied
due process concerns and compels affirmance."). Thus, even
though the trial court asked the Former Husband's counsel what
the Former Husband's testimony would be, the trial court erred in
granting what was in effect an involuntary dismissal before the
17
Former Husband had completed the presentation of his case-inchief. Therefore, we reverse the order granting a directed verdict on
the Former Husband's claim for a resulting trust and remand for
the trial court to take evidence on count two.
Outcome: In summary, we reverse the order granting a directed verdict
that disposes of the case as to Torrecilla on the claim for resulting
trust and remand for further proceedings. We also reverse the final
judgment concerning the durational alimony, child support, and the
failure to attach a complete equitable distribution worksheet to the
judgment and remand for further proceedings. Otherwise, we
affirm the final judgment as to the dissolution of the parties'
marriage and all other determinations in the final judgment not
reversed herein.
Plaintiff's Experts:
Defendant's Experts:
Comments: