final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; David E. French, Judge;
L.T. Case No. 502014DR003949.
Cynthia L. Greene of Greene Smith & Associates, P.A.,
Coral Gables, and Jeffrey P. Wasserman of Shapiro, Blasi,
Wasserman, Herman, P.A., Boca Raton, for appellant.
R. Laing of Laing & Weicholz, P.L., Boca Raton, for
Ellen Rosaler ("the wife") appeals the final
judgment of dissolution of marriage, raising numerous issues
related mainly to equitable distribution and alimony.
Appellee Joseph Rosaler ("the husband")
cross-appeals with respect to equitable distribution. We find
merit in two issues raised by the wife and reverse and remand
on those issues. We otherwise affirm.
a pre-trial hearing on the wife's motion for temporary
support and attorney's fees and costs, her attorney
suggested the parties sell a yellow diamond: "[The
proceeds don't] have to be equitably divided, but it can
be utilized, and then you can make the division at the end of
the case." Thereupon the trial court directed the
parties to sell the diamond and use $60, 000 of the proceeds
to pay the wife's attorney's and accountant's
fees. The court stated that it would "defer [on] whether
or not it will be [treated as] equitable distribution after I
see what's going on." The wife's attorney did
not object. The husband's attorney argued that the
wife's accountant's fee was unreasonable, as
"[t]hey have spent $70, 000 on accountant fees, yet they
haven't analyzed anything going back more than a year and
a half, and it's basically just a book about the
financial affidavit." The court indicated that it would
determine the reasonableness of all requested fees at
"the end" of the case.
written temporary support order, the court found that the
husband had been voluntarily paying the parties'
household expenses as well as $2, 000 a month in temporary
alimony. The court required the husband to continue doing so.
The court directed the wife to sell the yellow diamond and to
use the proceeds to pay $30, 000 to her forensic accountant
and $30, 000 to her attorney. The balance would be divided
equally between the parties. The temporary support order
further provided that the court "defers until trial on
the issue of whether the payment of the foregoing fees will
be deemed as equitable distribution or assessed in some other
manner." The order contains no findings on need and
ability to pay and the reasonableness of the fees and costs.
respect to the diamond, the final judgment ultimately
provided as follows:
i. The Parties' yellow diamond was sold for $142, 000
pursuant to a Court order to pay for Wife's
attorney's fees and costs. Of the proceeds from the sale,
Wife's attorney received $30, 000 and Wife's forensic
accountant received $30, 000. The Parties split the remainder
of the funds, each receiving $41, 000. Therefore, $101, 000
is attributed to the Wife and $41, 000 is attributed to the
Husband from the sale of the yellow diamond.
appeal, the wife argues that it was error for the trial court
to treat the $60, 000 she used for fees and costs as part of
the trial court's equitable distribution scheme rather
than just a stand-alone element of temporary support. She
relies on cases holding that, absent misconduct, an asset
that has been diminished or depleted during the dissolution
proceedings cannot be included in the equitable distribution
scheme. See Winder v. Winder, 152 So.3d 836, 838-39
(Fla. 1st DCA 2014); Zvida v. Zvida, 103 So.3d 1052,
1055 (Fla. 4th DCA 2013); Tradler v. Tradler, 100
So.3d 735, 740 (Fla. 2d DCA 2012).
find that this case is different. Here, the parties
essentially stipulated that the diamond could be sold and the
sale proceeds used for the wife's attorney's fees and
costs, and that the trial court would defer on the wife's
motion for temporary fees and costs. When the trial court
ultimately "charged" the wife with the proceeds
used for her attorney's fees and costs, it implicitly
found that the wife was not entitled to temporary
attorney's fees and costs. It may be that the use of the
sale proceeds by the wife should have been treated as
temporary support, but there were never any findings
regarding the wife's entitlement to temporary fees and
costs. The wife acknowledges in her reply brief that the
trial court did not make the findings necessary to support a
temporary attorney's fees order. See Duncan v.
Duncan, 642 So.2d 1167, 1168-69 (Fla. 4th DCA 1994)
(recognizing that an award of temporary attorney's fees
and costs is based on an assessment of need and ability to
pay as well as the reasonableness of the fees and costs).
Accordingly, we reverse and remand for the trial court to
either make findings justifying its treatment of some or all
of the proceeds as equitable distribution rather than
temporary support or, if it determines that some or all of
the $60, 000 should be treated as support, revisit the issue
of equitable distribution.
also find that the trial court erred in not considering the
tax implications of the alimony award. Section 61.08(2)(h),
Florida Statutes (2014), requires the court to consider the
"tax treatment and consequences to both parties of any
alimony award, including the designation of all or a portion
of the payment as a nontaxable, nondeductible payment."
The final judgment provided that the alimony award was
taxable to the wife and deductible by the husband, but it did
not make it clear whether the court considered the impact of
this provision before determining the appropriate amount to
award. For that reason, we reverse and remand for the trial
court to make findings regarding the tax consequences of the
alimony award and to revisit the amount of the alimony
obligation if necessary. See Kelley v. Kelley, 177
So.3d 292, 294 (Fla. 4th DCA 2015) (reversing for findings on
tax treatment and consequences of alimony where a lack of
findings made it impossible for the court to determine the
appropriateness of the alimony award); Gilliard v.
Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015)
(reversing where trial court failed to make specific findings
on all the factors recited in section 61.08(2), including the
tax treatment and consequences of awarding alimony).
we reverse the final judgment with respect to the inclusion
in the equitable distribution scheme of $60, 000 in funds
used by the wife for fees and costs, and for consideration of
the tax consequences of the alimony award. On remand, the
trial court should make the required findings as to both
issues and reconsider the equitable distribution scheme if
necessary. The trial court should also ...