Full Opinion

Third District Court of Appeal State of Florida Opinion filed March 18, 2020. Not final until disposition of timely filed motion for rehearing. ________________ No. 3D19-493 Lower Tribunal No. 15-12978 ________________ Humberto Diaz, Appellant, vs. Genoveva Diaz, Appellee. An Appeal from the Circuit Court for Miami-Dade County, David H. Young, Judge. Buchanan Ingersoll & Rooney, PC, and Robert F. Kohlman, for appellant. Capriles Law, P.A., and Claudia R. Capriles, for appellee. Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ. FERNANDEZ, J. The former husband, Humberto Diaz, appeals the trial court's final judgment of dissolution of marriage. We affirm the portion of the final judgment that dissolves the parties’ marriage but reverse the equitable distribution plan because the trial court failed to make the requisite findings listed in section 61.075(1), Florida Statutes (2015). I. Background The husband and the former wife, Genoveva Diaz, were married in Havana, Cuba in 1967 and lived together as husband and wife in Miami-Dade County, Florida until about May 6, 2015, when they separated and stopped living together. There were no minor children of the marriage. 1 The husband filed a petition for dissolution of marriage on May 26, 2015, to dissolve the long-term marriage. At that time, the wife was seventy-nine-years old, and the husband was seventy-one-years old. The husband worked as a mechanic for First Transit Shuttle Services, MIA, Inc., earning $762.60/week. His financial affidavit showed that in 2015 his monthly income was comprised of $3,304.58 in gross salary, $1,534.40 in social security benefits, and $1,811.81 in rental income. The wife was retired from her job at MCCI Humana in Miami Beach, Florida. The wife's October 27, 2016 financial affidavit showed she was retired from her 1 The wife died during the pendency of this appeal. Thus, the husband's issue on appeal regarding alimony is moot. 2 employment at Humana in May 2015. The husband claims the wife was employed at Humana since 1986 and was earning approximately $57,000.00/year. The husband alleges the wife voluntarily left her employment in May 2015 in anticipation of the divorce because she believed she would not be able to collect alimony if she was employed. Both parties received social security income. In addition, the parties also had joint savings and checking accounts at Bank of America. The husband claims that shortly before he filed the petition for dissolution of marriage, in order for the wife to remain in the marital home, the parties used $63,000.00 from their marital accounts to pay off the mortgage on the marital home, leaving a balance of approximately $42,000.00 in the parties' Bank of America accounts. The husband alleged that the wife intended to deprive the husband of his share of the marital funds and took out the entire $42,000.00 from their accounts and opened new accounts in her sole name on May 5, 2015. Furthermore, during the marriage, the parties acquired several properties, which included: 1. 1340 West 5th Court, Hialeah, Florida - the former marital home (appraised at $370,000.00) 2. 858 East 21st Street, Hialeah, Florida - the East Hialeah property (appraised at $257,900.00) 3. 1800 N.W. 19th Street, Apt. #10, Miami, Florida 33125 - the Allapattah property (appraised at $80,000.00) 3 4. 2496 S.W. 17th Avenue, Apt. #5207, Miami, Florida 33145 - the US1 property (appraised at $155,000.00) The husband requested that these four properties held as tenants by the entireties be sold and the net proceeds be divided according to section 61.075, and further asked the trial court to take into consideration the wife’s bad faith actions. The wife answered and counterpetitioned. She requested equitable distribution of all marital assets and liabilities, alimony, and a “special equity” in the distribution of marital assets because the husband had dissipated marital assets by: 1) spending marital money to rehabilitate real property the husband stood to inherit; 2) spending money in an extra-marital affair; and 3) failing to collect rents from his paramour who was a tenant in one of the properties the husband jointly owned with the wife. The trial court held the hearing on the petition and counterpetition on October 18, 2018, October 22, 2018, and December 18, 2018. There was no court reporter at the hearings; thus, there is no transcript. After hearing the testimony of witnesses and counsels' arguments, the trial court made no oral rulings. Both parties were instructed to submit their proposed final judgments to the court by a deadline set by the trial court. The wife submitted hers before the deadline, but the husband did not. Thereafter, the trial court entered its Final Judgment of Dissolution of Marriage on February 11, 2019, essentially mirroring the wife's proposed Final Judgment. II. The Final Judgment 4 In its Final Judgment, the court found that there was personal property of the marriage that the parties had already equitable divided. This ostensibly included $42,000.00 the parties had in their joint savings account, although the trial court did not mention this in the Final Judgment. With respect to the four properties owned by the parties, the trial court found that the properties were owned free of any liens or encumbrances and were subject to equitable distribution. The trial court heard the testimony of the appraiser hired by the husband to value the parties' properties, and the trial court accepted into evidence the appraiser's reports. The court further adopted the appraiser's valuations to use in the court's equitable distribution award. The court found that from the time the parties separated on May 6, 2015, the wife resided in the former marital home and collected rents from the US1 property. The wife paid the maintenance costs, including insurance, and the real estate taxes on both these properties. The court further found that since the parties' separation, the husband had been collecting rent from the Allapattah property and the East Hialeah property and that the husband did not share the rental incomes from those properties with the wife. The trial court also found that the husband had recently moved to the East Hialeah property. The court found that during the marriage, the husband inherited an income-producing property at 3620 N.W. 101st Street, Miami, Florida 33142, and that the husband receives rental income from the property. The court found that the inherited property was not subject to equitable distribution. 5 The trial court found that the wife was entitled to a “special equity” regarding the distribution of marital assets because the husband dissipated marital assets by admitting he spent at least $6,000.00 in marital funds from the marital savings account and a few thousand more on charges to the Home Depot account which was paid from marital funds to rehabilitate the husband’s inherited property; by spending money on a cruise to Mexico and the Caribbean, and trips to Cuba with his paramour during their extra-marital relationship; by failing to collect rent from his paramour who was a tenant for many months at the East Hialeah property which was jointly owned by the parties; and by purchasing a bedroom set for his paramour. The trial court granted the petition for dissolution of marriage, dissolved the marriage, and made each party responsible for their own attorney's fees and costs. In equitably distributing the parties’ real property, the trial court considered the wife's special equity and awarded the husband the East Hialeah property, where he was living. The trial court awarded the wife the former marital home, the Allapattah property, and the US1 property. The trial court ordered the husband to execute and deliver quit claim deeds for these three properties to the wife within thirty days and ordered the wife to execute and deliver quit claim deeds for the East Hialeah property to the husband within thirty days. The trial court ordered that the husband would retain the inherited property in his sole name. 6 Thereafter, the husband filed a Motion to Vacate Final Judgment and in the Alternative for Rehearing and/or Reconsideration. The trial court denied the motion, but ordered the wife's counsel to amend the Final Judgment to include the values of the real properties. The husband then filed this appeal. The Final Judgment was never amended to include the values of the real properties. II. Equitable Distribution On appeal, the husband contends that there is fundamental error in the Final Judgment with regard to the equitable distribution award because the trial court failed to make the required findings for the award in its Final Judgment, failed to include certain marital assets in the trial court's equitable distribution scheme, and failed to identify all marital assets. Specifically, the husband claims the trial court made an unequal distribution in favor of the wife for $347,100.00. Although there is no transcript of the final hearings before the trial court, we agree with the husband that there is reversible error on the face of the Final Judgment regarding the equitable distribution award, and reversal is warranted. We review the trial court’s equitable distribution rulings under an abuse of discretion standard. Watson v. Watson, 124 So. 3d 340, 342 (Fla. 1st DCA 2013). However, where there is no trial transcript or a proper substitute for the transcript does not appear in the record on appeal, an “appellate court is authorized to reverse 7 a judgment as a matter of law where an error of law is apparent on the face of the judgment.” Hirsch v. Hirsch, 642 So. 2d 20, 21 (Fla. 5th DCA 1994). Section 61.075(1)(a)-(j), Florida Statutes (2015), lists the following factors that must be considered when a trial court makes its equitable distribution award: (a) The contribution to the marriage by each spouse, including contributions to the care and education of the children and services as homemaker. (b) The economic circumstances of the parties. (c) The duration of the marriage. (d) Any interruption of personal careers or educational opportunities of either party. (e) The contribution of one spouse to the personal career or educational opportunity of the other spouse. (f) The desirability of retaining any asset, including an interest in a business, corporation, or professional practice, intact and free from any claim or interference by the other party. (g) The contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties. (h) The desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party, when it would be equitable to do so, it is in the best interest of the child or that party, and it is financially feasible for the parties to maintain the residence until the child is emancipated or until exclusive possession is otherwise terminated by a court of competent jurisdiction. In making this determination, the court shall first determine if it would be in the best interest of the dependent child to remain in the marital home; and, if not, whether other equities would be served by giving any other party exclusive use and possession of the marital home. (i) The intentional dissipation, waste, depletion, or destruction of marital assets after the filing of the Petition or within 2 years prior to the filing of the Petition. (j) Any other factors necessary to do equity and justice between the parties. 8 Here, in its Final Judgment, the trial court did not cite to the factors required under section 61.075(1)(a)-(j), to substantiate making the $347,100.00 unequitable distribution to the wife. “[I]n distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” in the statute. § 61.075(1)(a)-(j). The total value of the wife’s award was $605,000.00. The husband was awarded only the home at 858 E. 21st Street, Hialeah, which the appraiser valued at $257,900.00. This resulted in an unequal distribution in favor of the wife of $347,100.00. As a result of the trial court not making the factual findings necessary under the statute to allow the unequitable distribution, the husband received $173,550.00 less than he would have if the trial court had equitably distributed the properties. Rodriguez v. Rodriguez, 994 So. 2d 1157, 1160 (Fla. 3d DCA 2008) (“The distribution of marital assets and liabilities must be supported by ‘factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in [section 61.075(1)].’”). Moreover, even when there is no transcript, a final judgment is “fundamentally erroneous on its face” when it includes a trial court’s distribution scheme that is “grossly unequal.” Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003); see also Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th DCA 2005) 9 (“Furthermore, ‘[e]ven when no trial transcript is provided to the reviewing court, ‘[f]ailure to make sufficient findings regarding value of property and identification of marital assets and debts constitutes reversible error and requires remand for appropriate findings to be made.’ ”). In a similar case, Voronin v. Voronin, 975 So. 2d 1228 (Fla. 2d DCA 2008), the Second District Court of Appeal reversed the trial court’s equitable distribution plan even though there was no trial transcript. The appellate court found that the record, which included the trial exhibits, was enough for the appellate court to decide that the trial court had made an inequitable distribution award without a supporting explanation. Id. at 1229. In the case before us, as in Voronin, there is no trial transcript, but the husband introduced exhibits into evidence, which included the appraisals of all four real properties owned by the parties, his financial affidavits, the wife’s financial affidavit, and the bank statements indicating the balance of the marital savings account as of May 2015, the time the dissolution action was filed. These exhibits evidence the trial court’s error in making the unequitable distribution award. That was sufficient in Voronin, as it is here, to review the equitable distribution scheme and reverse, as there was no justification for the unequal distribution of $347,100.00 to the wife under this set of facts. In addition, the husband further alleges that the trial court erred when it relied on a “special equity” to give the wife an unequal award. In her counter-petition, the 10 wife raised the issue of “special equity” and requested an equitable distribution of the marital assets and liabilities under section 61.075, as well as a “special equity” to repay her for her husband’s alleged bad acts. In the final judgment, the trial court ordered that the “parties’ Real Property shall be equitably distributed, considering Wife’s Special Equity…” The trial court found the wife had a “special equity” because the husband had dissipated marital assets by admitting he spent at least $6,000 in marital funds from the marital savings account and several thousand more on charges to the Home Depot account; by spending money on a cruise to Mexico and the Caribbean and trips to Cuba with his paramour during their extra-marital relationship; by failing to collect rent from his paramour who was a tenant for many months at the East Hialeah property which was jointly owned by the parties; and by purchasing a bedroom set for his paramour. As a result, the wife was awarded three of the parties’ four real properties, which gave her $347,100.00 more than what the husband received. However, in 2008, special equity was abolished by the legislature. See Ch. 2008-46, § 1, Laws of Fla.; Lopez v. Hernandez, 252 So. 3d 266, 268 (Fla. 4th DCA 2018); § 61.075(11), Fla. Stat. (2015). Therefore, the Second District Court of Appeal’s opinion in Keurst v. Keurst, 202 So. 3d 123 (Fla. 2d DCA 2016), is applicable here and requires reversal. In Keurst, the trial court made an unequal distribution to the wife based on her request for a special equity in the parties’ marital 11 home and beachfront condominium they owned together. Id. at 125. The Second District Court of Appeal reversed because special equity had been abolished and because the trial court did not consider the required factors outlined in section 61.075(1) to justify its unequal distribution. Id. at 125-26. Similarly, the trial court in the case before us erred when it relied on a “special equity” to give the wife an unequal award. In addition, the trial court failed to identify all significant marital and non- marital assets of the parties in its Final Judgment, as required under section 61.075(3)(b). Both parties’ financial affidavits in the record list marital assets other than the four rental properties the parties owned. The additional marital assets included: 1. Accounts at Bank of America and Coastline Credit Union totaling $1,700.00. 2. A mausoleum at Vista Memorial Gardens, valued at $8,000.00. 3. Two burial caskets at Woodlawn Memorial Park, valued at $4,800.00. 4. 2003 Chevrolet Silverado, valued at $4,000.00. 5. 2001 Honda Odyssey, valued at $2,500.00. 6. Furniture and furnishings kept by the wife in the marital home, valued at $3,000.00. 7. Furniture and furnishings in the husband’s apartment, valued at $500.00. 8. A car the wife listed on her Financial Affidavit a car valued at $1,500.00. 9. A bank account with a balance of $1,100.00 the wife listed on her Financial Affidavit. 12 Furthermore, the Final Judgment mentions a “marital savings account” but did not include these monies in its equitable distribution award. The husband introduced into evidence a statement from the parties’ joint Bank of America money market savings account that showed a balance of $44,732.91 on April 24, 2015. From this amount, $2,700.00 was withdrawn via an ATM on April 27, 2015. The remaining $42,034.08 was withdrawn on May 5, 2015 by the wife, and different amounts were transferred into a savings account, a checking account, and a CD, all controlled by the wife. Florida Statutes section 61.075(7) states: The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date of filing of the husband’s petition was May 26, 2015. Thus, the Bank of America marital savings account was improperly left out of the equitable distribution award, and the trial court awarded the wife an extra $42,034.08 in equitable distribution, half of which the husband was entitled to. Regarding these marital assets, the Final Judgment simply stated: The Court finds that during the course of the parties’ 51 year marriage, they acquired personal property which has already been equitably divided by the parties and no longer subject to equitable distribution. Section 61.075(3), Florida Statute (2015), states: (3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital 13 assets or marital liabilities 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). The distribution of all marital assets and marital liabilities, whether equal or unequal, 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. There is no equitable distribution schedule or anything in the record indicating these assets had been divided. Accordingly, the trial court erred in not following section 61.075(3) in identifying and including as part of its equitable distribution scheme all the marital assets identified by the parties in their financial affidavits or in the exhibits introduced at trial. Such findings were required by section 61.075(3) because this was a contested dissolution action in which “a stipulation and agreement has not been entered and filed.” Accordingly, for these foregoing reasons, we affirm the dissolution of marriage but reverse the unequitable distribution plan in the final judgment and remand the case for the trial court to readdress the equitable distribution scheme and make the requisite findings by applying the factors listed in section 61.075(1), Florida Statutes (2015). 14 Affirmed in part; reversed in part; and remanded with instructions. 15