GARY L. SMITH, Appellant,
VERNIA SMITH, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; David E. French, Judge; L.T. Case No.
Weinbaum of Weinbaum P.A., Plantation, for appellant.
Smith, Boca Raton, pro se.
Gary Smith ("Former Husband") raises four issues on
appeal of the trial court's final judgment of dissolution
of the parties' marriage. We find merit with respect to
Former Husband's contention that the trial court erred in
awarding appellee Vernia Smith ("Former Wife") $7,
501 in attorney's fees, in valuing the marital pension to
be worth $102, 000 at the time of filing the complaint, and
equitably distributing $50, 000 from the marital pension to
Former Wife. Accordingly, we reverse the dissolution order in
part and remand these issues to the trial court, as set forth
below. We affirm without further discussion the other issue
raised on appeal.
September 13, 2013, Former Wife filed her amended petition
for dissolution of marriage. She and Former Husband had been
married for thirteen years. The parties had no children. In
her petition, Former Wife requested alimony, equitable
distribution, and attorney's fees. She also alleged that
Former Husband dissipated a certain marital asset, his
retirement pension, throughout the marriage. Former Husband
answered, in turn requesting the same relief: alimony,
equitable distribution, and attorney's fees. He denied
dissipating the pension.
bench trial, the parties first discussed the possible
equitable distribution of Former Husband's retirement
pension. Former Wife, appearing pro se, alleged that Former
Husband dissipated the pension he received from his former
employer, which was worth approximately $102, 000 by the time
Former Husband's employment was terminated in 2012.
Former Wife admitted exhibit thirteen, which she explained
showed Former Husband withdrawing money from his bank
accounts months before the dissolution petition. On some
days, she noted, Former Husband withdrew thousands of
dollars. Later at trial, Former Husband explained he made
these withdrawals to pay various litigation costs associated
with the marriage dissolution, as well as living
expenses. Moreover, he referenced an
agreement between himself and Former Wife, in which Former
Wife agreed to allow Former Husband to withdraw half of the
pension, which was apparently $52, 397.07. Former Wife countered, explaining that on
one occasion, she overheard a phone call in which Former
Husband and his sister talked about opening a joint bank
account, presumably so that Former Husband could
"hide" the pension funds.
parties then discussed exhibit five, which Former Wife argued
showed the existence and value of the pension at the time she
filed for dissolution. Former Husband's counsel admitted
that there was a pension and that it was a marital asset.
However, Former Husband disputed the pension's value,
explaining that at the time of the dissolution petition, the
pension was worth significantly less than $102, 000. Former
Wife disagreed-even though she had earlier said that Former
Husband dissipated the pension before the filing of the
complaint. She told the trial court, "I have given you
evidence [of] what the value [of the pension] was on the date
of filing. It was $102, 000." Former Husband's
counsel then stated, "Your Honor, I have not seen $102,
000 anywhere." At that point, Former Wife directed the
trial court to "the documents before you, your Honor. It
should have his separation date and it has that. . . . There
it is." Former Wife was referring to exhibit five, which
appeared to be a summary of Former Husband's pension sent
to him by his former employer's human resources
department. The document estimated the value of Former
Husband's pension to be approximately $102, 000 beginning
May 1, 2012.
parties also discussed attorney's fees at trial. Former
Wife was represented by an attorney for part of the marriage
dissolution proceedings. The attorney had previously filed a
motion for entry of a charging lien in the amount of $7,
344.71, and explained in her motion that she would submit an
affidavit detailing her attorney's fees and costs.
However, she never did. Still, Former Wife submitted a
billing statement, which showed that her attorney charged
$350 an hour, and which described the kinds of services
rendered to account for 1.70 hours, or for $595 charged. The
statement did not provide any information for why the
attorney charged $6, 749.71 as a "Past Due
Balance." Former Wife, who is an attorney, then
testified as to the reasonableness of the fees.
trial, the court entered its final judgment of dissolution of
marriage. The court found that "[t]he Husband's
pension is valued at $102, 000 as of the date of
filing." Then, in a separate section, the court ordered
Former Husband to pay Former Wife $2, 000 a month for a
period of twenty-five months. The court did not specifically
state that the pension was the source of these payments, or
that the pension was even a marital asset. Instead, the court
stated that it was distributing a "retirement
account." Still, earlier at trial, the court explained
that Former Husband owed Former Wife "$50, 000 for her
half of the pension." In its final judgment, the court
also ordered Former Husband to pay Former Wife's former
counsel $7, 501 in attorney's fees, in monthly increments
Husband filed a motion for rehearing, alleging substantially
the same arguments he now makes on appeal. The ...