ROBERT W. HIGGINS, Appellant,
KATHY MUSSO HIGGINS n/k/a KATHY P. MUSSO, Appellee.
final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Laurie E. Buchanan, Judge;
L.T. Case No. 11000031DRAXMX.
William Klein of the Law Office of Troy W. Klein, West Palm
Beach, for appellant.
Benjamin T. Hodas of the Law Office of Benjamin T. Hodas,
LLC, West Palm Beach; and Tara S. Pellegrino of Broad and
Cassel LLP, West Palm Beach, for appellee.
appeal and cross-appeal arise from an amended final judgment
of dissolution of marriage. We agree with the former husband
that the trial court erred by (1) failing to assign a value
to a business which was deemed marital property, (2)
including a dissipated asset in equitable distribution, and
(3) failing to provide reasons for its finding that a boat
was a marital asset. We also agree with the former wife that
the trial court erred in designating as a marital asset all
of the proceeds from the sale of a nonmarital property. We
only issues raised at trial and on appeal relate to equitable
distribution. We review a trial court's determination of
equitable distribution for an abuse of discretion.
Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla.
4th DCA 2003). "Distribution of marital assets and
liabilities must be supported by factual findings in the
judgment or order based on competent substantial
evidence." Bardowell v. Bardowell, 975 So.2d
628, 629 (Fla. 4th DCA 2008) (citing § 61.075(3), Fla.
Stat.). "A trial court's legal conclusion that an
asset is marital or nonmarital is subject to de novo
review." Mondello v. Torres, 47 So.3d 389, 392
(Fla. 4th DCA 2010).
first issue on appeal, the former husband argues that the
trial court erred in awarding a marital asset, a business, to
the former wife based on a finding that the business's
value is based on personal goodwill of the former wife and
without assigning a value to the business (aside from the
former wife's goodwill). When there is evidence that a
marital business has value aside from one spouse's
goodwill, the court must make a finding regarding that value
for purposes of equitable distribution. See Niekamp v.
Niekamp, 173 So.3d 1106, 1108-09 (Fla. 2d DCA 2015)
(reversing and remanding to trial court to value marital
property, excluding any goodwill attributable to one party,
where there was evidence that the business had other assets).
there was evidence that the business had tangible assets, the
trial court inexplicably found that no such evidence was
offered. The former wife acknowledges that the business is a
marital asset, and she appropriately concedes that the asset
has a value aside from her goodwill. Accordingly, we reverse and remand to the
trial court to value the business for purposes of equitable
former husband next contends that the trial court erred in
including the parties' 2010 tax refund in its equitable
distribution scheme when the refund was dissipated before
trial and the trial court did not make a finding of
misconduct. We agree. See Tradler v. Tradler, 100
So.3d 735, 740 (Fla. 2d DCA 2012) (recognizing that it is
generally error to include assets in equitable distribution
which have been dissipated during the dissolution proceedings
in the absence of a finding of misconduct). Therefore, we
reverse and remand for the trial court to omit the tax refund
from its equitable distribution analysis.
former husband's final point on appeal relates to a boat
that he purchased during the marriage to replace one he owned
prior to the marriage. He argues that the trial court erred
in treating the new boat as a marital asset. During trial,
the former husband testified that he purchased the
replacement boat using insurance proceeds he received after
the premaritally-purchased boat was irreparably damaged. The
former wife did not dispute that insurance proceeds related
to the premarital boat were used to purchase the second boat.
Instead, she testified that the former husband gifted her the
new boat as a Christmas gift.
assets include "[a]ssets acquired . . . by either party
prior to the marriage, and assets acquired . . . in exchange
for such assets." § 61.075(6)(b)1., Fla. Stat.
(2011); see also Steiner v. Steiner, 746 So.2d 1149,
1151 (Fla. 2d DCA 1999) (recognizing that properties
purchased during the marriage with proceeds from the sale of
nonmarital property acquired before the marriage are
nonmarital assets "to the extent that their purchase
prices were paid with proceeds that are traceable" to
the party's sale of that premarital property).
deeming the new boat to be a marital asset, the trial court
stated that the former husband "claims he used"
insurance proceeds "to purchase the [new] boat, "
and it further found that the boat was titled in the former
husband's name but currently in the former wife's
possession. It is unclear from these findings why the trial
court designated the boat as a marital asset. The former wife
argues that the trial court made a credibility determination
and believed her, but the court did not make any findings
relating to the former wife's testimony that the former
husband gifted her the new boat. This lack of findings makes
review impossible. For that reason, we must reverse and
remand for the trial court to either make factual findings
that support designation of the new boat as a marital asset
or amend the equitable distribution scheme. See
§ 61.075(3)(d), Fla. Stat. (requiring trial court, with
respect to equitable distribution, to make "[a]ny other
findings necessary to advise the parties or the reviewing
court of the trial court's rationale for the distribution
of marital assets and allocation of liabilities").
former wife raises two issues in her cross-appeal. We affirm
on one issue and decline to further address it, but we
reverse with respect to her claim that the trial court erred
in treating as a marital asset ...