Michael Carman Byers v. Brantley Dubose Byers , 149 So. 3d 161 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
MICHAEL CARMAN BYERS, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D14-368
BRANTLEY DUBOSE BYERS,
Appellee.
_____________________________/
Opinion filed October 21, 2014.
An appeal from the Circuit Court for Bay County.
Peter Mallory, Judge.
Jerome M. Novey, Shannon L. Novey, and Christian F. Gonzalez of Novey Law,
Tallahassee, for Appellant.
Russell S. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.
PER CURIAM.
Michael Carman Byers, the former husband, appeals the final order of
dissolution of marriage, raising three issues. Specifically, he challenges the trial
court’s adoption of the proposed final order submitted by counsel for his former
wife, Brantley Dubose Byers; the award of $1.00 in permanent periodic alimony to
his former wife; and the valuation and distribution of certain marital assets. We
affirm.
Most of Mr. Byers’s arguments regard a claimed lack of factual findings by
the trial court, but our review fails to find that the issues were raised and preserved
below, precluding their consideration on appeal. See Owens v. Owens, 973 So. 2d
1169, 1170 (Fla. 1st DCA 2007) (former wife failed to preserve claim that final
judgment lacked sufficient factual findings where she failed to seek rehearing or
bring error to trial court’s attention); see also Mize v. Mize, 45 So. 3d 49 (Fla. 1st
DCA 2010) (adequacy of factual findings unpreserved where former husband
failed to challenge their sufficiency by a motion for rehearing or other post-
judgment pleading).
Regarding his claim that the trial court erred by adopting, verbatim, his
former wife’s proposed final order, we note that Florida law does not preclude a
trial court from doing so, provided the adopted judgment does not substitute for
thoughtful and independent analysis of the facts, issues, and law by the trial judge.
See Perlow v. Berg-Perlow, 875 So. 2d 383, 390 (Fla. 2004); M.D. v. Dep’t of
Children & Fam. Servs., 924 So. 2d 827, 830 (Fla. 2d DCA 2005). While a
verbatim adoption of a party’s submission might raise a caution flag, it is lowered
if the record shows that the trial court exercised independent judgment in entering
the order. David v. David, 58 So. 3d 336, 338 (Fla. 5th DCA 2011). Here, the
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proposed final order appears to reflect the rulings that the trial court made, so we
find no error.
Regarding Mr. Byers’s challenge to the award of $1.00 per month in
permanent periodic alimony, our review of the record show the trial court’s rulings
are supported by clear and convincing evidence after consideration of the factors
set forth in subsection 61.08. The court first determined that Mr. Byers has the
ability to pay his former wife, who has a need for alimony. See Walker v. Walker,
85 So. 3d 553, 554 (Fla. 1st DCA 2012) (“In order to award permanent alimony,
the trial court must make specific factual determinations with regard to actual need
on the part of the former spouse seeking an alimony award.”). During the marriage,
Mr. Byers was the primary breadwinner, working as a bank executive often
earning well into six-figures of income each year. By contrast, his former wife was
mostly a stay-at-home mom; when the parties separated, she worked as a part-time
teacher, a factory worker, and home cleaner. After Mr. Byers stopped temporary
child support and alimony payments, his former wife had to go on foodstamps and
other government assistance to make ends meet for herself and the parties’ three
minor children. After evaluating all the other relevant statutory factors, all of
which are supported by the record evidence, the trial court awarded the former
wife the nominal alimony amount at issue. This nominal award is likely based on
the fact that Mr. Byers had filed bankruptcy, is currently working in a job paying
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far less than his prior bank positions, but that his financial position is likely to
change in the future; this ruling was wholly permissible. See Liebrecht v.
Liebrecht, 58 So. 3d 415, 417 (Fla. 2d DCA 2011) (finding nominal alimony award
appropriate to preserve wife’s right to seek larger amount upon a change in
financial conditions); Biske v. Biske, 37 So. 3d 970, 971 (Fla. 1st DCA 2010)
(reversing denial of permanent periodic alimony based on husband’s twenty
percent reduction in income, because nominal award more appropriate as parties’
financial circumstances likely to change in the future).
Finally, Mr. Byers challenges the valuation of certain assets and the
inclusion of certain assets in the marital estate. We find no abuse of discretion.
Stough v. Stough, 18 So. 3d 601, 604. (Fla. 1st DCA 2009). The issues concern the
inclusion of two bonus checks of $17,000 and $29,000, respectively, which he
received while he worked at Regions Bank. He essentially claims those funds were
depleted by the time of the final hearing on the divorce petition, because he used it
to pay, among other things, the mortgage, child support, alimony, and so on. But
his former wife was able to show that not only did he not list the amounts on his
amended financial affidavits, he also ceased making any mortgage payments on the
residence at least a year before receiving those checks, and stopped making child
support and alimony payments thereafter. Additionally, at the time he received
those bonus checks, he was earning $143,989.88 in salary from Regions Bank,
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from which he could have paid his financial obligations to his family. Thus, the
trial court had sufficient evidence from which to conclude that the check amounts
should be included in the marital estate.
AFFIRMED.
CLARK, WETHERELL, and MAKAR, JJ., CONCUR.
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