Rehearing Denied March 30, 2012.
Robin Bresky and Sophia Blair of Law Offices of Robin Bresky, Boca Raton, for appellant.
Gene Reibman, Plantation, for appellee.
The wife appeals the trial court's final judgment of dissolution, claiming the court erred in dividing the assets, calculating income of the husband, awarding an inadequate amount of alimony, calculating child support payable by the wife, and including overly restrictive parenting provisions. Almost all of the determinations are not an abuse of discretion due to the credibility determinations made by the trial court. Nevertheless, the court did err in calculating stock due to the wife based upon its determination that a portion of the stock was marital property. It also erred in failing to determine whether property the husband owned in Jamaica was marital or non-marital property. Finally, it abused its discretion in parts of the parenting plan. On these issues we reverse.
This case involved a highly contentious divorce of a sixteen-year marriage involving three children, ages ten, five and four. The wife has a C.P.A. license but stayed home with the children after their birth, doing only some contract work. The husband traded and managed properties. The parties owned multiple properties, either individually or jointly, throughout the marriage, which were the subject of equitable distribution.
When the husband filed for divorce, things became very ugly between the parties. At a temporary hearing, the court ordered the father to be the custodial parent, with supervised visitation with the mother. Both parties took various parenting classes and anger management courses. The court appointed a guardian ad litem to investigate and report to the court. In her first report at trial, the guardian ad litem recommended shared parental responsibility with the husband having the ultimate decision-making authority. She initially recommended that
the wife have unsupervised visitation. When the trial stretched on over several trial days spanning four months, the wife's conduct toward the husband made the guardian ad litem change her recommendation to supervised visitation between the wife and the children. Nevertheless, the evidence also showed that the children loved their mother very much, and it was extremely stressful to them to have their visits with their mother so limited.
In its final judgment the court commented that much of the evidence was conflicting and facts were disputed. Thus, the court's findings were based upon its conclusions as to the credibility of the witnesses. Several times during the court's lengthy recitation of the facts as presented at trial, the court made observations of inappropriate reactions by the wife to the testimony. The court divided the various assets, after lengthy discussion of the evidence applicable to each. It awarded modest bridge-the-gap alimony and ordered the wife to pay child support, reduced from the guidelines amount.
The court ordered sole parental responsibility with the father, finding that the parties were " toxic" together. It also found that the mother's behavior was " out of control" and the court was extremely concerned for the children's welfare if visitations were to occur without supervision. It then ordered visitation to the wife for a maximum of four hours per week, plus a few hours on major holidays. The court also ordered that visitation would be forfeited if the assigned supervisor could not come, and no one from that particular agency was available. The court further limited the wife to two telephone calls per week of no more than fifteen minutes each (five minutes per child) and prevented her from attending any of the children's activities and events. It prohibited her from petitioning for modification of the parenting plan unless she completed: (1) fifty-two weeks of individual psychological therapy; (2) another twenty-six weeks of joint psychological therapy with the children; (3) five additional sessions on child discipline; and (4) two eight-week sessions in parental effectiveness training.
With respect to the distribution of assets, we review the trial court's equitable distribution of assets for abuse of discretion but accord a presumption of correctness to those findings where credibility is a factor, as it is here. See Rafanello v. Bode, 21 So.3d 867, 869 (Fla. 4th DCA 2009). A trial court's legal conclusion that an asset is marital or non-marital is reviewed de novo. Mondello v. Torres, 47 So.3d 389, 392 (Fla. 4th DCA 2010).
In its equitable distribution, the trial court made many credibility determinations. Therefore, its determinations are presumed correct. Based upon the court's findings, the court did not abuse its discretion in the awards it made, save for its conclusions with respect to the Grace Kennedy stock held by the husband in Jamaica.
As to the Grace Kennedy stock, the husband testified that he acquired 500,000 shares of stock by gift in 1996 but that by the time of the divorce he did not own any stock. The records custodian for the company testified at the hearing, however, and refuted that assertion. Copies of the records of the company, together with copies of transfer forms for the stock, were admitted into evidence. The books and records of the company showed that the husband owned 1,963,119 shares of stock as of the date of trial. The transfer form for the original 500,000 showed that consideration in excess of $5.5 million (Jamaican dollars) was paid for the transfer. After ...