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Smith v. Smith

Florida Court of Appeals, Fourth District

August 30, 2017

GARY L. SMITH, Appellant,
v.
VERNIA SMITH, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; David E. French, Judge; L.T. Case No. 502013DR008333.

          Lane Weinbaum of Weinbaum P.A., Plantation, for appellant.

          Vernia Smith, Boca Raton, pro se.

          Forst, J.

         Appellant 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.

         Background

         On 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.

         At the 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.[1] 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.[2] 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.

         The 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.

         The 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.

         After 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 of $300.

         Former Husband filed a motion for rehearing, alleging substantially the same arguments he now makes on appeal. The ...


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