IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
GEORGE C. HARRIS,
Appellant,
v. Case No. 5D15-3993
ANITA HARRIS,
Appellee.
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Opinion filed December 2, 2016
Appeal from the Circuit Court
for Marion County,
Anthony M. Tatti, Judge.
Barry P. Burnette, of Barry P. Burnette,
P.A., Tavares, for Appellant.
No Appearance for Appellee.
EDWARDS, J.
George C. Harris (“Former Husband”) appeals the final judgment of dissolution of
marriage from Anita Harris (“Former Wife”). Former Husband raises two issues. First,
he argues that the trial court erred by considering Former Wife’s voluntary support of her
grandson and daughter from another relationship as part of Former Wife’s need for
alimony. Second, Former Husband argues that the trial court erred by failing to properly
consider the marital portion of the appreciation of Former Wife’s house. We find the
issues raised by Former Husband have merit. Accordingly, we reverse and remand.
First, the trial court erred by basing Former Wife’s alimony award on a statement
of expenses that included the voluntary financial support Former Wife provided to her
daughter, who was not Former Husband’s child, and grandchild. The daughter and minor
grandchild lived with Former Wife, who paid all of the household expenses. The daughter
was unemployed and did not contribute financially to the household expenses. Neither
Former Wife nor Former Husband provided any evidence of the expenses attributable to
Former Wife alone, rather than those attributable to her daughter and grandchild.
The trial court correctly stated, at one point, that it could not consider voluntary
payments made by Former Wife to support her adult daughter and grandchild. See
Quinones v. Quinones, 84 So. 3d 1101, 1104 (Fla. 3d DCA 2012) (holding that the trial
court erred in considering the former husband’s voluntary college tuition and car
payments for the former couple’s adult son as an expense for former husband). However,
the trial court later stated, incorrectly, that “some consideration must be given to the
[Former Wife’s] voluntary support of her adult daughter and minor grandson in
determining [her] needs.” We reverse the award of alimony and remand for the trial court
to make a determination of Former Wife’s individual need, which must be based upon
competent substantial evidence. See § 61.08(2), Fla. Stat. (2015); Zinovoy v. Zinovoy,
50 So. 3d 763, 766 (Fla. 2d DCA 2010). Former Wife, as the party seeking alimony, bears
the burden of proof. Demont v. Demont, 67 So. 3d 1096, 1101 (Fla. 1st DCA 2011).
Second, the trial court erred by considering one-half of the marital portion of the
appreciation in value of Former Wife’s house as an asset of Former Husband, when
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Former Wife was awarded sole ownership of the home.1 During their marriage, the
parties lived in a house Former Wife purchased nine years before the marriage. Former
Husband does not dispute that, in general terms, the house should be awarded to Former
Wife as a nonmarital asset. Marital assets include “[t]he enhancement in value and
appreciation of nonmarital assets resulting either from the efforts of either party during
the marriage or from the contribution to or expenditure thereon of marital funds or other
forms of marital assets, or both.” § 61.075(6)(a)1.b., Fla. Stat. (2015). Here, evidence
was presented that the parties used marital funds to pay a few mortgage payments and
to make improvements to the house, including a new roof, an air conditioning system,
new kitchen appliances, and a remodel of the garage.
The trial court determined that the total appreciation of the house was $45,850.50.
The trial court then assigned $35,000 of the passive appreciation as a nonmarital asset
of Former Wife. The trial court found that the improvements discussed above, financed
with marital funds, added $850.50 to the house’s value and assigned $10,000 in passive
appreciation as a marital asset. Former Husband argues that the trial court erred in the
equal distribution calculations because the court concluded that Former Husband and
Former Wife benefitted equally, so that each was considered to have a $5,425.25 marital
asset representing the marital portion of the house’s appreciated value, despite the fact
that Former Wife was awarded sole ownership and possession of the house.
1 The trial court repeatedly describes this appreciation as “passive.” While the
majority of appreciated value was passive in nature, the court did find that a small portion
of the increased value of the home was due to enhancements or improvements made to
the house (non-passive).
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In Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), the Florida Supreme Court addressed
a case with similar facts. In Kaaa, the former husband purchased a home prior to the
couple’s marriage. 58 So. 3d at 869. The couple lived in the home throughout their
twenty-seven-year marriage. Id. During the marriage, the couple used marital funds to
pay the mortgage and undertake home improvements, thus, increasing the value of the
home. Id. Upon the couple’s divorce, the trial court found that the total enhanced value
of the home was $36,679 and ordered the former husband, the homeowner, to pay the
former wife, the nonowner, half of that amount as an equalizing payment. Id. The former
wife appealed, arguing that the trial court should also have awarded her a distribution for
the passive appreciation of the home, not just the enhancement value. The Florida
Supreme Court held that the trial court erred in not awarding the former wife one-half
payment of passive appreciation, explaining that “principles of equity do not allow an
owner spouse to receive the full benefit of the passive appreciation when the nonowner
spouse contributed to the property.” Id. at 871.
In the present case, Former Husband argues that the trial court did not equalize
the parties’ marital assets and liabilities because it awarded sole ownership of the marital
home to Former Wife but only credited her with one-half of the $10,850.50 marital portion
of the appreciation. Husband is correct. As in Kaaa, the trial court should have either
ordered Former Wife, the homeowner, to make a one-half payment of the marital portion
of the appreciation of the house to Former Husband, the nonowner, or it should have
credited the entire marital portion of the appreciation of the house to Former Wife when
calculating equitable distribution. Therefore, we reverse and remand for the trial court to
credit Former Wife with the entire marital portion of the appreciation of the house’s value
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and to recalculate any equalizing payments between Former Wife and Former Husband.
An amended final judgment shall be entered to reflect changes in alimony and equitable
distribution.
REVERSED AND REMANDED.
SAWAYA and BERGER, JJ., concur.
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