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[W] Ava G. Byrne v. Daniel R. Byrne

January 18, 2012; withdrawn and opinion filed March 21, 2012

AVA G. BYRNE, APPELLANT/CROSS-APPELLEE,
v.
DANIEL R. BYRNE, APPELLEE/CROSS-APPELLANT.



An Appeal from the Circuit Court for Miami-Dade County, Paul Siegel, Judge. Lower Tribunal No. 09-23857

The opinion of the court was delivered by: Rothenberg, J.

Not final until disposition of timely filed motion for rehearing.

Before CORTINAS, ROTHENBERG and LAGOA, JJ.

Ava G. Byrne ("Ava") appeals from a final judgment of dissolution of marriage and order denying her post-trial motions. Daniel R. Byrne ("Dan") cross-appeals. Both parties challenge specific aspects of the trial court's equitable distribution and award of permanent alimony. We reverse and remand for proceedings consistent with this opinion.

EQUITABLE DISTRIBUTION

The trial court erred by distributing the entirety of the negative value of the marital residence solely to Ava.

Ava and Dan purchased a condominium which is now underwater by approximately $76,000.*fn1 The trial court classified the condominium as marital property. In its equitable distribution, the trial court assigned the marital residence and the negative value associated with it entirely to Ava, and awarded Dan half of the remaining valuable marital assets. Ava argues that by assigning to her the entirety of the condominium's negative value without offsetting it in the remainder of the equitable distribution, the trial court fashioned an unequal distribution without sufficient legal justification. We agree.

Section 61.075(1), Florida Statutes (2010), states, in pertinent part: "[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 . . . ." Any justification for fashioning an unequal distribution must be "legally sufficient." Foley v. Foley, 19 So. 3d 1031, 1032 (Fla. 5th DCA 2009). Relying on the "equity" factor articulated in section 61.075(1)(j), the trial court justified its decision not to assign half of the condominium's debt to Dan by stating that, although Ava wished to preserve her reputation by preventing foreclosure, "most homeowners in the circumstances of the parties would simply abandon the residence and/or return the keys to the banks holding the indebtedness." The trial court therefore concluded that it would be inequitable to require Dan to pay half of the condominium's negative value solely because Ava desired to protect her own reputation.

The trial court's justification was not "legally sufficient" because it erroneously assumed that the negative value associated with the condominium would simply vanish if the parties were to "abandon the residence" or "return the keys to the banks holding the indebtedness." It is well settled Florida law that, absent contractual agreement, debtors remain liable for the portion of their debt not satisfied in a foreclosure sale. See Webber v. Blanc, 22 So. 655, 656 (Fla. 1897) ("The fact that a mortgage was taken to secure the note did not deprive the holder thereof of the legal remedy to collect it, nor is there any legal obstacle in the way of his suing at law for the balance due on the note after the sale under the foreclosure decree in equity, if no judgment for the deficiency was entered in such proceedings."); see also Clements v. Leonard, 70 So. 2d 840, 844 (Fla. 1954). Consequently, even if Ava and Dan agreed to surrender the property to the bank, absent a contractual release, the $76,000 outstanding debt on the property would survive. Thus, the sole justification provided by the trial court in fashioning an unequal distribution was without merit, and, consequently, the trial court erred in failing to add the condominium's negative value to the marital liabilities.

The trial court erred in distributing the entire value of the TD Ameritrade account to Dan without crediting Ava for her loss.

The trial court classified Dan and Ava's jointly owned TD Ameritrade account, which was worth $50,467 at the time of filing, as marital property. After their separation, Dan, without Ava's permission, withdrew all of the TD Ameritrade account proceeds and used them to fund his living expenses. In an attempt to account for Dan's malfeasance, the trial court awarded the entire TD Ameritrade account, which was worthless, as an offsetting distribution to Dan. In doing so, however, the trial court failed to properly consider and compute the TD Ameritrade account in its equitable distribution.

Because the trial court determined that the TD Ameritrade account was marital property, Ava was entitled to one half of the proceeds, or $25,233.50. Therefore, the trial court's attempt to offset Dan's unauthorized expenditure by awarding him the worthless account was insufficient because Dan spent Ava's half of the TD Ameritrade proceeds. Ava should have been credited with an additional $25,233.50 in the equitable distribution.

ALIMONY

We next turn to the trial court's alimony award. The trial court awarded Dan $1,500 per month as permanent periodic alimony based on the following factors: Dan and Ava's marriage lasted "nine" years, and therefore was of moderate duration; Dan became disabled from working during the course of the marriage; Ava earns approximately "$10,000" per month; and Dan, based on his Sprint and Social Security disability income, earns approximately $44,000 per year, and does not have sufficient money to pay for his living or medical expenses. The trial court, in its order regarding Ava's post-trial motions, awarded Dan an additional $18,000 in ...


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