GARY L. SMITH v. VERNIA SMITH , 226 So. 3d 948 ( 2017 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GARY L. SMITH,
Appellant,
v.
VERNIA SMITH,
Appellee.
No. 4D16-2969
[August 30, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; David E. French, Judge; L.T. Case No. 502013DR008333.
Lane Weinbaum of Weinbaum P.A., Plantation, for appellant.
Vernia Smith, Boca Raton, pro se.
FORST, J.
Appellant Gary Smith (“Former Husband”) raises four issues on appeal
of the trial court’s final judgment of dissolution of the parties’ marriage.
We find merit with respect to Former Husband’s contention that the trial
court erred in awarding appellee Vernia Smith (“Former Wife”) $7,501 in
attorney’s fees, in valuing the marital pension to be worth $102,000 at the
time of filing the complaint, and equitably distributing $50,000 from the
marital pension to Former Wife. Accordingly, we reverse the dissolution
order in part and remand these issues to the trial court, as set forth below.
We affirm without further discussion the other issue raised on appeal.
Background
On September 13, 2013, Former Wife filed her amended petition for
dissolution of marriage. She and Former Husband had been married for
thirteen years. The parties had no children. In her petition, Former Wife
requested alimony, equitable distribution, and attorney’s fees. She also
alleged that Former Husband dissipated a certain marital asset, his
retirement pension, throughout the marriage. Former Husband answered,
in turn requesting the same relief: alimony, equitable distribution, and
attorney’s fees. He denied dissipating the pension.
At the bench trial, the parties first discussed the possible equitable
distribution of Former Husband’s retirement pension. Former Wife,
appearing pro se, alleged that Former Husband dissipated the pension he
received from his former employer, which was worth approximately
$102,000 by the time Former Husband’s employment was terminated in
2012. Former Wife admitted exhibit thirteen, which she explained showed
Former Husband withdrawing money from his bank accounts months
before the dissolution petition. On some days, she noted, Former Husband
withdrew thousands of dollars. Later at trial, Former Husband explained
he made these withdrawals to pay various litigation costs associated with
the marriage dissolution, as well as living expenses. 1 Moreover, he
referenced an agreement between himself and Former Wife, in which
Former Wife agreed to allow Former Husband to withdraw half of the
pension, which was apparently $52,397.07. 2 Former Wife countered,
explaining that on one occasion, she overheard a phone call in which
Former Husband and his sister talked about opening a joint bank account,
presumably so that Former Husband could “hide” the pension funds.
The parties then discussed exhibit five, which Former Wife argued
showed the existence and value of the pension at the time she filed for
dissolution. Former Husband’s counsel admitted that there was a pension
and that it was a marital asset. However, Former Husband disputed the
pension’s value, explaining that at the time of the dissolution petition, the
pension was worth significantly less than $102,000. Former Wife
disagreed—even though she had earlier said that Former Husband
dissipated the pension before the filing of the complaint. She told the trial
court, “I have given you evidence [of] what the value [of the pension] was
on the date of filing. It was $102,000.” Former Husband’s counsel then
stated, “Your Honor, I have not seen $102,000 anywhere.” At that point,
Former Wife directed the trial court to “the documents before you, your
Honor. It should have his separation date and it has that. . . . There it
is.” Former Wife was referring to exhibit five, which appeared to be a
summary of Former Husband’s pension sent to him by his former
employer’s human resources department. The document estimated the
1 Former Husband’s counsel summarized: “The testimony by the Respondent
[Former Husband] was that it wasn’t dissipation, it was depletion. There was
$40,000 in attorney’s fees. This is a long divorce case. Aside from the attorney’s
fees, there are living expenses that the Respondent has to pay for.”
2 Former Husband explained in an answer to an interrogatory: “The $57,000
distribution I took from my 401K Fidelity account in 2013 was approved by my
Wife. She signed a Waiver authorizing me to take my half of my pension amount.
The signed Waiver is on file with [my employer].”
2
value of Former Husband’s pension to be approximately $102,000
beginning May 1, 2012.
The parties also discussed attorney’s fees at trial. Former Wife was
represented by an attorney for part of the marriage dissolution
proceedings. The attorney had previously filed a motion for entry of a
charging lien in the amount of $7,344.71, and explained in her motion
that she would submit an affidavit detailing her attorney’s fees and costs.
However, she never did. Still, Former Wife submitted a billing statement,
which showed that her attorney charged $350 an hour, and which
described the kinds of services rendered to account for 1.70 hours, or for
$595 charged. The statement did not provide any information for why the
attorney charged $6,749.71 as a “Past Due Balance.” Former Wife, who is
an attorney, then testified as to the reasonableness of the fees.
After trial, the court entered its final judgment of dissolution of
marriage. The court found that “[t]he Husband’s pension is valued at
$102,000 as of the date of filing.” Then, in a separate section, the court
ordered Former Husband to pay Former Wife $2,000 a month for a period
of twenty-five months. The court did not specifically state that the pension
was the source of these payments, or that the pension was even a marital
asset. Instead, the court stated that it was distributing a “retirement
account.” Still, earlier at trial, the court explained that Former Husband
owed Former Wife “$50,000 for her half of the pension.” In its final
judgment, the court also ordered Former Husband to pay Former Wife’s
former counsel $7,501 in attorney’s fees, in monthly increments of $300.
Former Husband filed a motion for rehearing, alleging substantially the
same arguments he now makes on appeal. The trial court summarily
denied the motion.
Analysis
1. Attorney’s fees
“The standard of review of an award of attorneys’ fees is abuse of
discretion.” Diwakar v. Montecito Palm Beach Condo. Ass’n., 143 So. 3d
958, 960 (Fla. 4th DCA 2014). The award must be supported by
competent, substantial evidence. Id.Former Husband first argues on appeal that the trial court erred for
three reasons in awarding $7,501 in attorney’s fees to Former Wife’s
former counsel. We find merit in all of his arguments.
3
First, the trial court failed to address Former Husband’s ability to pay
the fees award. Section 61.16(1), Florida Statutes (2016), requires the trial
court to “consider[] the financial resources of both parties” when ordering
attorney’s fees. This means that “[w]hen determining entitlement to
attorney’s fees and costs in a dissolution of marriage proceeding, in order
‘to ensure that both parties have similar access to competent legal counsel,
the trial court must look to each spouse’s need for suit money versus each
spouse’s respective ability to pay.’” Patterson & Maloney v. Gumberg, 828
So. 2d 403, 405 (Fla. 4th DCA 2002) (quoting Rosen v. Rosen, 696 So. 2d
697, 699 (Fla. 1997)).
Here, the trial court noted in its final judgment that Former Husband’s
net monthly income was $7,419.09, and that his gross monthly expenses
were $6,168.56. Elsewhere, the trial court also ordered Former Husband
to pay a monthly $2,000 equalizing payment to Former Wife. It is unclear
how Former Husband, who only has $1,250.53 remaining each month as
surplus after subtracting his gross monthly expenses from his net monthly
income, could pay the attorney’s fees award on top of the equalizing
payment. Like in Beckstrom v. Beckstrom, 183 So. 3d 1067 (Fla. 4th DCA
2015), “the trial court found the former wife was in need of attorney’s fees,
but did not make a finding as to the former husband’s ability to pay. We
therefore reverse the judgment on this issue and remand the case to the
trial court to make the requisite written findings.” Id. at 1069; see also
DeLillo v. DeLillo, 848 So. 2d 454, 454 (Fla. 4th DCA 2003) (similar).
Second, there was also no evidence to support part of the fees award.
We begin by noting that Former Husband never argued below that there
was insufficient evidence to support the award. However, he did so on
appeal, and could raise this issue at this stage of the case pursuant to
Florida Rule of Civil Procedure 1.530(e). See also Diwakar, 143 So. 3d at
961 (citing Rule 1.530(e) to explain that an “argument that there was
simply no competent, substantial evidence to support the [attorney’s fees]
award may be raised for the first time on appeal”).
At trial, there was competent, substantial evidence supporting $595 of
the $7,501 in attorney’s fees Former Wife sought: the billing statement
detailing 1.70 fee hours at a $350/hour rate. 3 However, the statement did
not provide any information regarding why Former Wife’s counsel charged
3See Brewer v. Solovsky, 945 So. 2d 610, 611 (Fla. 4th DCA 2006) (“Competent
evidence includes invoices, records and other information detailing the services
provided.”).
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an additional $6,749.71 in fees. 4 Without any evidence for this portion of
the fees, we remand for an additional hearing to allow Former Wife the
opportunity to present evidence for it. See Diwakar, 143 So. 3d at 961
(“[W]hen the record contains some competent substantial evidence
supporting the fee or cost order, yet fails to include some [other] essential
evidentiary support . . . the appellate court will reverse and remand the
order for additional findings or an additional hearing, if necessary.”
(quoting Rodriguez v. Campbell, 720 So. 2d 266, 268 (Fla. 4th DCA 1998))).
Third, although we find the trial court erred in awarding the fees
because it failed to calculate them by using the lodestar method, 5 Former
Husband did not preserve the issue on appeal. However, because we are
remanding for a new hearing on fees, we take the opportunity to advise the
trial court to include a lodestar calculation in its new order should it again
decide to award fees. As we have explained, “[i]t is well-settled that an
award of attorney’s fees must . . . contain express findings regarding the
number of hours reasonably expended and a reasonable hourly rate for
the type of litigation involved.” Simhoni v. Chambliss, 843 So. 2d 1036,
1037 (Fla. 4th DCA 2003).
2. Valuation of the marital pension
“The valuation of an asset or debt in connection with equitable
distribution is generally reviewed for an abuse of discretion.” Dorworth v.
Dorworth, 176 So. 3d 336, 338 (Fla. 5th DCA 2015). The valuation must
be supported by competent, substantial evidence. Id.Former Husband argues that there was no evidence to support the trial
court’s valuation of the marital pension as being $102,000 at the time of
filing. Although we recognize the trial court’s discretion on this matter, we
agree that it erred in valuing the pension. A final judgment of any
distribution of marital assets or liabilities “shall be supported by factual
findings in the judgment or order based on competent substantial evidence
. . . .” § 61.075(3), Fla. Stat. (2016). “Specific factual findings underlying
4 See Faircloth v. Bliss, 917 So. 2d 1005, 1006 (Fla. 4th DCA 2006) (“Generally, a
fee award must be supported by competent evidence which must include
evidence detailing the services performed and the reasonableness of the fee.”).
5 Under the lodestar method, a trial court is required “to determine a ‘lodestar
figure’ by multiplying the number of hours reasonably expended on the litigation
by a reasonable hourly rate for the services of the prevailing party’s attorney.”
22nd Century Props., LLC v. FPH Props., LLC, 160 So. 3d 135, 142 (Fla. 4th DCA
2015) (quoting Ottaviano v. Nautilus Ins. Co., 717 F. Supp. 2d 1259, 1264 (M.D.
Fla. 2010)).
5
the court’s determinations are not required to be expressly stated where
the record contains competent evidence to support the trial court’s
findings.” Jordan v. Jordan, 127 So. 3d 794, 796 (Fla. 4th DCA 2013).
Here, the trial court stated in its final judgment that “[t]he husband’s
pension is valued at $102,000 as of the date of filing.” As such, the court
clearly indicated that it was valuing the pension at the date of filing, which
was either August 5, 2013, the date of filing the original complaint, or
September 13, 2013, the date of filing the amended complaint. However,
there was no evidence that the pension was worth $102,000 at either time.
In fact, the evidence showed the opposite: that the pension was worth
significantly less. 6 For one, both parties testified that the pension account
had less than $102,000 by the time of filing. Former Wife argued that
months before the dissolution petition, Former Husband purposefully
depleted the pension, stating, “[i]n anticipation of me filing the petition, he
dissipated all of the pension.” Id. Former Wife also relied on exhibit
thirteen, which showed Former Husband withdrawing thousands of
dollars from his bank accounts, which presumably contained money from
the pension, months before the petition. The exhibit showed that in
August of 2013, near the date of filing, the bank account’s balance was
$5,502.81. Reading from the same page of the exhibit, the court told
Former Wife, “Ma’am, as of the date of filing you said it was worth
approximately $5,500, the 401(k), okay.” Former Wife agreed.
Perhaps the trial court sought to value the pension based on its value
more than a year before the filing date, for which there was evidence to
support the $102,000 valuation. Pursuant to section 61.075(7), Florida
Statutes, the court certainly could have done this. However, we cannot
presume the trial court sought to do so in light of the trial court explicitly
writing in its final judgment that it valued the pension “as of the date of
filing” the petition. Moreover, the trial court gave no indication for why
picking an alternative date would have been “just and equitable under the
circumstances.” Id. On remand, the trial court must rectify the
inconsistency in findings related to the value of the pension.
6 Though Former Wife argued below that the pension was worth $102,000 at the
time of filing the complaint, the evidence relied on for that proposition—the
pension document—only estimated the value of the pension more than one year
before filing. We also note that the introduction of all the other evidence,
including Former Husband’s bank accounts, as well as a prior contract in which
Former Wife allowed Former Husband to withdraw half of the pension before the
instant lawsuit for purposes irrelevant on appeal, demonstrate that the pension
was worth considerably less than $102,000 at the time of filing.
6
3. Equitable distribution of the marital pension
“Decisions of the trial court concerning the equitable distribution of
marital assets are reviewed under an abuse of discretion standard.”
Pomeranz v. Pomeranz, 901 So. 2d 895, 896 (Fla. 4th DCA 2005).
Former Husband’s last argument on appeal is that the trial court
committed several errors in awarding $50,000 to Former Wife as part of
the equitable distribution scheme. For almost all of the reasons argued by
Former Husband, except one which was not preserved, we agree. 7 First
and foremost, because we are reversing since there was no evidence
supporting the valuation of the marital pension, we must reverse the
pension’s distribution. The trial court could not distribute $50,000 from
the pension unless it expressly chose to value the pension based on an
earlier date at which the pension was worth at least that amount, or unless
it expressly found that Former Husband dissipated the asset. We have
already dealt with the first scenario in our previous section, finding that
the court did not use a pre-petition date. Now, we deal with the second.
“[I]t is error to include in the equitable distribution scheme
assets or sums that have been diminished or depleted during
the dissolution proceedings unless the depletion was the
result of misconduct.” To include a dissipated asset in the
equitable distribution scheme, there must be evidence of the
spending spouse’s intentional dissipation or destruction of the
asset, and the trial court must make a specific finding that
the dissipation resulted from intentional misconduct.
Weymouth v. Weymouth, 87 So. 3d 30, 36 (Fla. 4th DCA 2012) (citation
omitted) (quoting Tillman v. Altunay, 44 So. 3d 1201, 1203 (Fla. 4th DCA
2010)). Here, the evidence was clear that the pension was worth
considerably less than $102,000 by the time of filing. Thus, in order to
award $50,000 to Former Wife, the court first needed to make a specific
finding of dissipation. Since the court made no such finding in its final
judgment, it erred in distributing the equalizing payment as it did.
The trial court also failed to consider Former Husband’s actual ability
to pay the equalizing payment. See Fortune v. Fortune, 61 So. 3d 441, 446
(Fla. 2d DCA 2011). In fact, as discussed above, it appears Former
Husband cannot pay the monthly $2,000 amount given that he only has
7 Former Husband never argued below or in his motion for rehearing that the
trial court failed to take into account any of the factors listed in section 61.075(1),
Florida Statutes, when equitably distributing the pension.
7
a surplus of $1,250.53 remaining each month after subtracting his gross
monthly expenses from his net monthly income. As the final judgment
also required Former Husband to pay $300 a month in attorney’s fees, his
ability to pay the $2,000 monthly is all the more doubtful. See Abramovic
v. Abramovic, 188 So. 3d 61, 64 (Fla. 4th DCA 2016).
As a final matter, we note the trial court failed to specifically identify in
its final judgment that the pension was the marital asset serving as the
source of the equalizing payments. See § 61.075(3), Fla. Stat. The court
only wrote that a “retirement account” was the source. A review of the
record makes it likely that the court was referring to the pension, but we
would rather not presume that fact on appeal.
Conclusion
We reverse and remand the final judgment of dissolution of marriage.
First, we reverse the award of attorney’s fees because the trial court failed
to find that Former Husband had an actual ability to pay the fees, and
because there was no competent, substantial evidence for part of their
amount. We remand for a new hearing to address these issues.
Second, we reverse because the trial court incorrectly valued the
pension at the time of filing, and, by way of such mistake, distributed
incorrect equalizing payments. In order for the trial court to distribute
$50,000, it should have explicitly made a finding that it was doing so based
on the pension’s value at an earlier date, or based on a finding of
dissipation. Since the trial court did neither, we reverse. In addressing
this issue on remand, the trial court must make a determination with
respect to whether Former Husband had the actual ability to pay the
equalizing payment.
Accordingly, we reverse and remand for further proceedings consistent
with this opinion.
Affirmed in Part, Reversed and Remanded in Part.
GERBER, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
8