Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-2786 _____________________________ MARK JOSEPH PFLANZ, Former Husband, Appellant, v. CHARLA DENISE PFLANZ, Former Wife, Appellee. _____________________________ On appeal from the Circuit Court for Leon County. Anthony B. Miller, Judge. December 15, 2021 LEWIS, J. Mark Joseph Pflanz, Former Husband, appeals the trial court’s final judgment of dissolution of marriage, raising six issues. We agree with Former Husband that the trial court abused its discretion in allocating most of a now-empty $40,505 bank account to him after finding he diminished most of the monies for his own benefit. We further agree with Former Husband that the trial court abused its discretion in awarding Charla Denise Pflanz, Former Wife, $3,000 a month in durational alimony. We reject Former Husband’s remaining arguments without discussion. Accordingly, we affirm in part, reverse in part, and remand. Distribution of Joint Marital Bank Account I. When the parties separated in April 2017, a few months before Former Husband filed for dissolution in June 2017, they had a joint marital bank account with approximately $40,505 in it. Early in the litigation, Former Wife moved to prohibit Former Husband from dissipating assets and alleged he had nearly depleted this entire account. The parties co-owned a home on three acres of land (the marital home), and they co-owned with the Former Husband’s parents a barn and the seventeen acres on which it sat (the barn acreage). Former Husband maintained he spent $15,000 on repairs and renovations to the marital home, $20,505 on clearing land and replacing a roof on the barn acreage, and $5,000 on a down payment for a tractor for the barn acreage. Former Husband submitted receipts showing some of the expenditures. The court, after a two-day hearing, denied Former Wife’s motion, finding Former Husband spent the money on maintenance of marital assets and, thus, did not dissipate the $40,505 account. During trial, Former Wife again raised her dissipation argument. This time, a successor judge * agreed with Former Wife and, on the same evidence and arguments, found that Former Husband had dissipated $5,000 for the tractor down payment and $20,505 for the barn acreage repairs. The court reasoned the $5,000 was for a “brand new tractor that Husband just had to buy after the parties’ separation,” Former Husband did not obtain Former Wife’s consent for this post-separation expense, and the * Judge Marsh heard and ruled on the initial dissipation motion, and he presided over the first day of trial, but he was subsequently transferred to a different division. Judge Hobbs presided over the second day of trial, which occurred more than a year after the first day of trial, and she issued the final judgment of dissolution. Shortly after the final judgment, Judge Hobbs recused herself, and Judge Miller heard and denied Former Husband’s motion for rehearing. Judge Miller was then transferred, Judge Hawkes was assigned, and Judge Hawkes granted a stay of the final judgment pending this appeal. 2 $5,000 “benefited solely Husband as both the purchase and the associated financing obligation occurred post-filing.” As to the $20,505 for the barn acreage, the court found that Former Husband had not shown the reasonableness of the expenditures, whether they increased the value of the barn acreage, or how they could benefit non-income producing land. The court therefore allocated that money solely to Former Husband. On the other hand, the court found that the $15,000 spent on home repairs likely increased the value of the marital home, so it split that money equally, allocating $7,500 to each party. On appeal, Former Husband challenges the trial court’s allocation and argues that all the expenditures were for marital purposes. II. The trial court’s decision on diminishment, as with other aspects of its equitable distribution scheme, is reviewed for an abuse of discretion. Schroll v. Schroll, 227 So. 3d 232, 235–36 (Fla. 1st DCA 2017). “Sums that have been diminished during dissolution proceedings for purposes reasonably related to the marriage . . . should not be included in an equitable distribution scheme unless there is evidence that one spouse intentionally dissipated the asset for his or her own benefit and for a purpose unrelated to the marriage.” Ballard v. Ballard, 158 So. 3d 641, 642–43 (Fla. 1st DCA 2014). The court must, however, make a finding of intentional misconduct. Id. at 643. In the event of diminishment/dissipation, the diminished asset should be assigned against the party that diminished that asset. Winder v. Winder, 152 So. 3d 836, 838–39 (Fla. 1st DCA 2014). It is neither intentional misconduct nor a purpose unrelated to the marriage to use funds for attorney’s fees or to pay household bills and support the family. See Horton v. Horton, 257 So. 3d 1197, 1199–200 (Fla. 1st DCA 2018); Schroll, 227 So. 3d at 235– 36; Ballard, 158 So. 3d at 642–43. So too, “[s]imple mismanagement or squandering of an asset in a manner of which the other spouse disapproves does not constitute dissipation. Neither does an imprudent or unwise investment decision.” Buoniconti v. Buoniconti, 36 So. 3d 154, 163 (Fla. 2d DCA 2010) (internal citation omitted). 3 III. Analyzing Former Husband’s expenditures under these standards, the trial court abused its discretion as to each. First, Former Wife concedes that it was error to distribute equally the $15,000 spent on repairs and renovation of the marital home, and we agree. Having found that the asset was not dissipated, half of the non-remaining asset could not be distributed to each party as the asset no longer existed. Instead, the $15,000 should have been excluded from the marital estate and the court’s distribution scheme. Second, Former Wife also concedes that the court erred in finding that Former Husband dissipated $20,505 on barn acreage repairs. Her concession is well-taken. It was uncontroverted that the money was spent on repairs to marital land Former Husband and Former Wife jointly owned. There was no indication of intentional misconduct, and Former Husband’s expenditure was for “purposes reasonably related to the marriage.” Moreover, the trial court improperly focused on whether Former Husband showed a benefit to the barn acreage, which is not part of the diminishment test. Given such, the equitable distribution must be modified to exclude this $20,505 figure. Third, as to the $5,000 tractor down payment, the trial court improperly focused on the timing of the purchase and financing and Former Wife’s lack of consent. The applicable analysis concerns only whether the purchase was reasonably related to the marriage, not when it occurred or if there was consent to it. So long as there is no intentional misconduct and the expense is reasonably related to the marriage, there is no diminishment. Further, the tractor may have been an improvident purchase, and one Former Wife would not have made, but the barn acreage was part of the marriage, and the only evidence was that the tractor was for its upkeep. Thus, it was reasonably related to the marriage, regardless of whether Former Wife would have made the same purchase. Finally, there is no evidence the purchase was intentional misconduct. While Former Wife cites Former Husband’s financial affidavit, which lists the tractor as his non- marital property and the associated financing obligation as his non-marital debt, this alone cannot be determinative. Against that, there is no evidence of intentional misconduct or that Former 4 Husband used the tractor for anything other than the marital barn acreage—again, something “reasonably related to the marriage.” Therefore, the trial court abused its discretion in distributing the $40,505. Because the court’s distribution scheme as to the entire $40,505 was erroneous, we cannot accept Former Wife’s argument that the equal split of the $15,000 was harmless. On remand, the trial court should address the entirety of the $40,505 that was distributed in error. None of that money, used for the marriage, should have been a part of the estate to be distributed. Award of Durational Alimony I. The trial court awarded Former Wife $3,000 a month in durational alimony for fourteen years and five months. In doing so, the court credited Former Wife’s 2017 financial affidavit and her 2020 trial testimony related to her finances, and it discredited Former Husband’s 2018 amended financial affidavit. First, Former Wife’s financial affidavit listed rent/mortgage, cable, electricity, and other monthly expenses totaling $4,478 a month and resulting in a monthly deficit of $2,688. The affidavit specifically footnoted that the expenses were anticipated and estimated amounts and that Former Wife was presently paying much smaller amounts. Second, during the second day of the trial, in January 2020, Former Wife testified that she was presently living with her new boyfriend, who was also the owner of the restaurant where she worked; she gave her boyfriend $1,000 a month towards groceries, cable, utilities, and other household expenses; the boyfriend/employer paid for her cell phone (as a company perk) and let her use his car because her marital car was in need of repairs; and she would now need to pay for her own health insurance and maintenance of the parties’ numerous animals. She reaffirmed her financial affidavit expenses and her $2,688 monthly deficit, while again explaining that the numbers were estimates and anticipations. Third, the trial court discredited Former Husband’s amended financial affidavit, noted that his gross earnings presently exceeded $145,000 a year, and explained that Former Wife’s gross income of under $30,000 paled in comparison to his earnings. Consequently, the court awarded Former Wife $3,000 a month in durational alimony, as this covered 5 the need reflected in her financial affidavit and accounted for her new expenses. On appeal, Former Husband argues that Former Wife did not present competent, substantial evidence of need as some of her expenses were paid by her boyfriend/employer, she only paid $1,000 a month for rent/household expenses, and her expenses were “largely speculative and incredible.” II. We review the trial court’s award of alimony for an abuse of discretion and will not disturb the court’s award if it is supported by competent, substantial evidence. Abbott v. Abbott, 187 So. 3d 326, 327 (Fla. 1st DCA 2016). For the parties’ moderate-term marriage of fourteen years and five months, durational alimony is appropriate. See § 61.08(4), (7) (8), Fla. Stat. (2017). Durational alimony is meant to “provide a party with economic assistance for a set period of time following a marriage of short or moderate duration.” § 61.08(7), Fla. Stat. First, however, the trial court must make factual findings concerning one party’s need and the other party’s ability to pay. § 61.08(2), Fla. Stat. (2017); see also Ard v. Ard, 208 So. 3d 1288, 1288 (Fla. 1st DCA 2017) (explaining that alimony awards must be supported by competent, substantial evidence demonstrating one spouse’s need for support and the other spouse’s ability to pay). Then, the trial court may address the amount of alimony. § 61.08(2), Fla. Stat.; see also Johnson v. Johnson, 297 So. 3d 700, 703 (Fla. 1st DCA 2020). As to the amount of alimony, it cannot exceed what the recipient spouse actually needs, irrespective of the other spouse’s ability to pay. See Dorworth v. Dorworth, 176 So. 3d 336, 339 (Fla. 5th DCA 2015) (“An order awarding alimony in excess of the recipient spouse’s needs will be reversed as an abuse of discretion, absent special circumstances.”); Lin v. Lin, 37 So. 3d 941, 942–43 (Fla. 2d DCA 2010) (reversing the alimony award that included child expenses where the court also awarded child support because the award thus exceeded the wife’s actual need and “an award of alimony that exceeds the recipient spouse’s need constitutes an abuse of discretion”); Levine v. Levine, 964 So. 2d 741, 742–43 (Fla. 4th DCA 2007) (finding the alimony award an abuse of discretion because it included child expenses in addition to a separate child 6 support order, included “unnecessary personal expenses,” and exceeded the wife’s need); Johnson, 297 So. 3d at 703–04 (reversing the $2,000 monthly alimony award where the record showed a need of only $1,171). Further, the award cannot be based on “anticipated” expenses or events. See Ard, 208 So. 3d at 1288 (reversing a temporary alimony award that was “based, in significant part, on ‘anticipated’ household expenses” the wife testified she would incur upon leaving her mother’s house, where she had been living rent-free for almost four years, because there was no record evidence of when she would move and begin incurring the expenses); Nelson v. Nelson, 651 So. 2d 1252, 1254–55 (Fla. 1st DCA 1995) (rejecting the trial court’s acceptance of “potential rent or mortgage payments” because the date those payments might occur, if at all, was uncertain); Winn v. Winn, 669 So. 2d 1155, 1157 (Fla. 5th DCA 1996) (“Alimony awards should be based on current existing circumstances, and not on possibilities likely but as yet unrealized.”). III. The trial court’s $3,000 per month durational alimony award was an abuse of discretion. The expenses in Former Wife’s affidavit that the trial court relied upon were prospective; Former Wife noted in the affidavit and testified at trial that the numbers were anticipations and projections based on the marital standard of living and that her actual expenses were less. The trial court even acknowledged in the final judgment that the Former Wife’s expenses were “prospective.” Former Wife anticipated these expenses since August 2017, and as of January 2020, they remained only anticipated expenses. Former Wife’s trial testimony about her actual, present expenses reflected significantly lower expenses than what she had been anticipating for over two years: $1,000 for rent, utilities, and other household expenses; some car maintenance; and additional health insurance and monies. She did not have a cell phone bill and presently drove her employer’s car. Accordingly, the trial court used outdated, anticipated numbers that were not derived from any verifiable source and conflicted with Former Wife’s testimony that her actual expenses 7 were far less. Because the record does not contain competent, substantial evidence to support the trial court’s finding that Former Wife has $4,478 in monthly expenses, resulting in a $3,000 monthly deficit and need, the court abused its discretion in awarding her durational alimony in that amount. Conclusion Therefore, we reverse the final judgment in part and remand for further proceedings consistent with this opinion. AFFIRMED in part, REVERSED in part, and REMANDED. NORDBY and LONG, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Gena D. Fournier and Richelle M. Marsico of Fournier Law, PLLC, Tallahassee, for Appellant. Emilian “Ian” Bucataru of Bucataru Law Firm, PLLC, Tallahassee; Patrick R. Frank of Frank & Rice, P.A., Tallahassee, for Appellee. 8