Niekamp v. Niekamp

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

LARRY NIEKAMP, )
)
Appellant, )
)
v. ) Case No. 2D14-728
)
SUSAN NIEKAMP, )
)
Appellee. )
__________________________________ )

Opinion filed August 26, 2015.

Appeal from the Circuit Court for Lee
County; John S. Carlin, Judge.

Sam R. Assini and Matthew P. Irwin of
Men's Rights Law Firm, Cape Coral, for
Appellant.

Luis E. Insignares of Luis E. Insignares,
P.A., Fort Myers, for Appellee.

NORTHCUTT, Judge.

Larry Niekamp raises multiple issues in his appeal from the amended final

judgment dissolving his marriage to Susan Niekamp. We reverse and remand for

further proceedings, as specified below.

The Niekamps were married for twenty-two years, and they have two

children. From early in their relationship, Ms. Niekamp has known that her husband has

mental health difficulties. Over the years, they have tried to address these issues with
professional help and medication, with only limited success. For the first half of the

marriage, Mr. Niekamp worked outside the home in a managerial position and then as a

computer programmer. Around 2002, the parties decided that Ms. Niekamp would open

a business and that Mr. Niekamp henceforth would take care of the children and keep

the business's books. This arrangement prevailed until the parties separated in 2011.

By the time the marriage was dissolved in 2013, Mr. Niekamp had been out of the

workforce for more than a decade.

In her divorce petition, Ms. Niekamp requested sole parental responsibility

for the children, which Mr. Niekamp opposed. Apparently due to his mental health

problems, Mr. Niekamp's relationship with the children was strained. During the divorce

proceedings Mr. Niekamp was denied a temporary timesharing schedule, but the court

granted his motion for a parenting evaluation and appointed a psychologist. In her

testimony and written report to the court, the psychologist recounted that she evaluated

Mr. Niekamp and diagnosed him with major depressive disorder, anxiety, and an

avoidant personality disorder. She observed that his largely untreated condition had

damaged his relationships with the children. But she also attributed some of the

damage to Ms. Niekamp's animosity toward Mr. Niekamp and to her penchant for

inappropriately telling the children about details of the divorce case. The court later

granted Mr. Niekamp's motion for a therapeutic reunification with the children. It

designated Jason Sabo, Ph.D., to coordinate that process.

In the final judgment the court awarded sole parental responsibility to Ms.

Niekamp, finding that shared responsibility would be detrimental to the children. The

court further determined that it was in the children's best interests to deny Mr. Niekamp

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contact with them for the time being. He was not granted so much as a weekly phone

call with either child, although Ms. Niekamp testified that she had no objection to phone

or email contact. The final judgment then provided:

The parties are ORDERED to continue to work with their
respective therapists and Dr. Jason Sabo on a therapeutic
reunification plan, should he find that it is in the best
interests of the children. The Court reserves jurisdiction to
readdress this timesharing schedule upon notice by Dr.
Sabo that the reunification process has commenced or by
Motion of either party. The Court has considered all criteria
in Florida Statutes 61.13 in making this decision.

Mr. Niekamp contends that the trial court improperly delegated its

authority over timesharing to the therapists. His argument finds support in Grigsby v.

Grigsby, 39 So. 3d 453 (Fla. 2d DCA 2010), in which this court affirmed an award of

sole parental responsibility to the father and a suspension of the mother's timesharing.

But we reversed in part because the circuit court failed to delineate what was required

of the mother in order to reestablish her timesharing.

Essentially, the court must give the parent the key to
reconnecting with his or her children. An order that does not
set forth the specific steps a parent must take to reestablish
time-sharing, thus depriving the parent of that key, is
deficient because it prevents the parent from knowing what
is expected and prevents any successor judge from
monitoring the parent's progress.

Id. at 457. See also Perez v. Fay, 160 So. 3d 459 (Fla. 2d DCA 2015) (holding that a

final judgment was legally deficient when it failed to advise a parent of the necessary

steps to regain contact with the children). We reverse the amended final judgment

insofar as it fails to prescribe any schedule or benchmarks for reestablishing Mr.

Niekamp's parenting of the children, and we remand for the trial court to do so.

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 Mr. Niekamp also challenges the trial court's equitable distribution

scheme. He correctly argues that the court erred by classifying Ms. Niekamp's business

as a nonmarital asset. See § 61.075(6)(a), Fla. Stat. (2012) (defining marital assets).

Ms. Niekamp concedes the error, but she asserts that it is harmless because there was

no evidence of value. Beyond that, she contends that the business is based entirely on

her goodwill and personal services. Certainly, the business—a music studio primarily

offering various types of instruction—depends heavily on Ms. Niekamp's personal

expertise and goodwill. But as noted by Mr. Niekamp, the business also has other

assets, including tangible assets such as funds in bank accounts and two instructional

books that it sells, and perhaps even some enterprise goodwill. See Schmidt v.

Schmidt, 120 So. 3d 31, 33 (Fla. 4th DCA 2013) (describing difference between

enterprise goodwill, which is a distributable marital asset, and personal goodwill, which

is nonmarital).

We reverse on this issue and remand for the trial court to properly

characterize the business as marital and to value it for purposes of the equitable

distribution, excluding any personal goodwill attributable to Ms. Niekamp. See id.;

Walters v. Walters, 588 So. 2d 47, 48-49 (Fla. 2d DCA 1991) (reversing equitable

distribution when court awarded business, a marital asset, to husband without assigning

a value). In so doing, the court may take additional evidence and readjust other aspects

of the equitable distribution if necessary to achieve an equitable result. Given Ms.

Niekamp's argument about the lack of evidence regarding the value of the business in

the current record, we point out that the failure to present such evidence might well

have been to her detriment. When, as here, an asset is acquired during the marriage, it

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is presumed to be marital unless specifically established as nonmarital. § 61.075(8). If

the trial court had properly classified the business as marital but lacked evidence of its

value or of how much of that value might have been attributable to Ms. Niekamp's

personal goodwill, the court simply might have granted each party a one-half interest.

Mr. Niekamp further contends that the trial court erred by assigning to his

share of the equitable distribution a $25,000 asset that no longer existed. Early in the

dissolution proceedings, he withdrew approximately that sum from retirement accounts,

which he said that he spent primarily on his attorney's fees. The court ordered him to

restore the funds to the accounts, but he never did so. Mr. Niekamp brought a nonfinal

appeal challenging the court's refusal to dissolve the temporary injunction, and this court

affirmed. Niekamp v. Niekamp, 119 So. 3d 1259 (Fla. 2d DCA 2013) (table decision).

Ms. Niekamp maintains that our decision in Mr. Niekamp's nonfinal appeal

forecloses his challenge to this disposition under the law of the case doctrine. She is

incorrect for two reasons. First, the prior appeal concerned a temporary injunction.

[T]he law of the case doctrine will not be employed to give
preclusive effect to a decision or determination that was
based on a less-than-full hearing. . . . Because a decision
based on a less-than-full hearing—such as the issuance or
denial of a preliminary injunction—is by its very nature
provisional, it would be nonsensical to give it binding effect
on the subsequent proceedings in the same case. This is
true, of course, even where the tentative determination of a
trial court has been the subject of interlocutory appellate
review.

Klak v. Eagles' Reserve Homeowners' Ass'n, 862 So. 2d 947, 952 (Fla. 2d DCA 2004)

(citations and internal quotation marks omitted). Second, Mr. Niekamp did not appeal

the injunction itself; he appealed only the trial court's denial of his motion to dissolve the

injunction. See Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d DCA

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1997) (explaining that motion to dissolve temporary injunction required party to show

change of circumstances and, absent such proof, denial of motion would not be abuse

of discretion), disagreed with by Minty v. Meister Fin. Grp., Inc., 132 So. 3d 373 (Fla. 4th

DCA 2014).

On the merits, then, we conclude that the trial court erred by distributing

this nonexistent asset to Mr. Niekamp. "When a spouse depletes marital assets during

the pendency of dissolution proceedings to pay for support, living expenses and

litigation expenses, it is error to include the assets in the equitable distribution scheme

in the absence of misconduct." Austin v. Austin, 12 So. 3d 314, 316-17 (Fla. 2d DCA

2009). "[T]here must be a specific finding of intentional misconduct based on evidence

showing that the marital funds were used for one party's 'own benefit and for a purpose

unrelated to the marriage at a time when the marriage is undergoing an irreconcilable

breakdown.' " Belford v. Belford, 51 So. 3d 1259, 1260 (Fla. 2d DCA 2011) (quoting

Roth v. Roth, 973 So. 2d 580, 585 (Fla. 2d DCA 2008)). Here, there was no evidence

or finding of misconduct by Mr. Niekamp. Accordingly, we reverse on this issue and

direct the trial court to omit this asset from the equitable distribution and rebalance the

distribution accordingly.

We now turn to the support provisions of the judgment. On the question of

alimony, a twenty-two-year marriage is presumed to be long term, § 61.08(4), and there

is a presumption in favor of alimony when warranted by one party's need and the other

party's ability to pay. Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008). Ms.

Niekamp's counsel acknowledged below that at least a nominal amount should be

awarded. But the trial court denied Mr. Niekamp's request for alimony altogether.

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 When considering the evidence of Mr. Niekamp's need, we note that the

psychologist testified that Mr. Niekamp was currently unable to work due to his mental

health issues. See § 61.08(2)(c), (e) (requiring consideration of parties' physical and

emotional condition and employability in alimony determination). There was ample

evidence to support that opinion and none to contradict it. But, remarkably, the trial

court concluded that Mr. Niekamp's unemployment was voluntary. Contrary to that

finding, there was no evidence to show that this party to a long-term marriage—who had

been unemployed for a decade and whose mental health issues were severe enough

that the trial court considered him incapable of parenting his children—had the current

ability to become gainfully employed, let alone at an income level approaching that

required to live at the marital standard.

The trial court pointed to a previous denial of Mr. Niekamp's application

for Social Security disability benefits. "Husband applied for Social Security Disability

benefits," the court wrote, "however [the application] was denied as the Administration

found husband to be capable of becoming gainfully employed." It is true that Mr.

Niekamp testified that his Social Security disability application had been denied. But

there was no evidence about the reason for the denial. And the court did not otherwise

explain how the standards for granting or denying Social Security disability benefits

might relate to the purposes of the various forms of alimony contemplated in Florida law

or to the criteria for awarding them. In the absence of evidence to support them, we

reject the trial court's determinations that Mr. Niekamp was voluntarily un- or

underemployed and that he did not establish a need for alimony. Ms. Niekamp's ability

to pay alimony was not fully addressed in the final judgment, which observed only that

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she could not afford to continue paying some of Mr. Niekamp's expenses under the

temporary support order. We reverse and remand with directions to award alimony to

Mr. Niekamp in a form and amount commensurate with his need and Ms. Niekamp's

ability to pay.

Having concluded that Mr. Niekamp was voluntarily unemployed, the trial

court imputed income to him for purposes of calculating child support under section

61.30. For the reasons just described, the imputation of income was error. See G.V.W.

v. L.M.W., 785 So. 2d 533 (Fla. 2d DCA 2001). We reverse the child support award and

the resulting arrearage determination, and we remand for further proceedings on the

issue of child support in light of this opinion.

Mr. Niekamp last argues that the trial court erred in denying his motion for

attorney's fees. Because we are reversing on the alimony and equitable distribution, we

reverse on this issue as well. See Crick v. Crick, 78 So. 3d 696, 699 (Fla. 2d DCA

2012) (directing trial court to reconsider fee issue after recalculating equitable

distribution and alimony awards).

In conclusion, we reverse the timesharing in part; we reverse the equitable

distribution, denial of alimony, award of child support, and denial of attorney's fees; and

we remand for further proceedings.

Reversed and remanded.

VILLANTI, C.J., and KHOUZAM, J., Concur.

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