FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Brevard County, Charlie Crawford,
Elizabeth Siano Harris, of Harris Appellate Law Office, Mims,
Elizabeth R. McHugh and J. Garry Rooney, of Rooney &
Rooney, P.A., Vero Beach, for Appellee.
Erdman ("Former Wife") appeals the second amended
final judgment of dissolution dissolving her marriage to
Robert D. Erdman ("Former Husband"). Former Wife
argues that the trial court: 1) erred in unequally
distributing the marital home; 2) abused its discretion in
valuing the marital home; and 3) abused its discretion in
establishing a payment scheme for Former Husband's
equalizing payment. We affirm in part and reverse in part.
parties married in June 2007. In January 2016, Former Husband
filed a petition for dissolution. At that time, the
parties' assets included one jointly owned property,
which served as the marital home. In his petition, Former
Husband requested an unequal distribution of the marital
home, alleging that he purchased it with nonmarital funds.
began in May 2017. Former Husband testified that he provided
$80, 000 for the down payment on the marital home using funds
he gratuitously received during the marriage from his former
employer as a reward for his services prior to the marriage.
The record reflects that the seller transferred the deed to
the marital home to Former Husband and Former Wife in
September 2008. Former Wife argued that the $80, 000 was
presumptively "a gift to the marriage" because
Former Husband used the funds to purchase the home for the
parties as tenants by the entireties, thus qualifying the
entire marital home as a marital asset. Former Husband did
not provide testimony or evidence explaining why the funds
were not intended as a gift to Former Wife. In the second
amended final judgment, the trial court classified $80, 000
of the value of the marital home as a nonmarital down
payment. On appeal, Former Wife argues that Former Husband
failed to overcome the marital gift presumption. We agree.
real property held by the parties as tenants by the
entireties, whether acquired prior to or during the marriage,
shall be presumed to be a marital asset." §
61.075(6)(a)2., Fla. Stat. (2016). To overcome this
presumption, the party asserting that the subject property,
or a portion thereof, is a nonmarital asset has the burden of
proving that no gift to the other party was intended. See
id.; Robertson v. Robertson, 593 So.2d 491, 494
(Fla. 1991). "[S]tanding alone, evidence that one spouse
provided nonmarital funds to purchase a marital home is
insufficient to prove that the spouse did not intend a
gift." David v. David, 58 So.3d 336, 338 (Fla.
5th DCA 2011) (citing Cintron v. King, 961 So.2d
1010 (Fla. 4th DCA 2007)). If the subject property is jointly
titled, and the parties' conduct during the marriage
demonstrates joint ownership, the party asserting that no
gift was intended must do more than make an
"unsubstantiated claim, raised for the first time during
a dissolution proceeding." Cattaneo v.
Cattaneo, 803 So.2d 889, 890-91 (Fla. 5th DCA 2002)
(quoting Rutland v. Rutland, 652 So.2d 404, 406
(Fla. 5th DCA 1995)). Further, "[i]t is irrelevant how
the funds were received or how much each party
contributed." Jurasek v. Jurasek, 67 So.3d
1210, 1212 (Fla. 3d DCA 2011) (citing David, 58
So.3d at 336).
Former Husband failed to prove that the $80, 000 down payment
on the jointly titled marital home was not intended as a gift
to Former Wife. His testimony alone that the down payment was
made with nonmarital funds was insufficient to overcome the
marital gift presumption. David, 58 So.3d at 338;
see also Jurasek, 67 So.3d at 1212 (reversing
unequal distribution award in favor of former husband who
used funds from inheritance to purchase marital home but
"never explained why or how the act of jointly titling
the home purchased with those funds constituted anything
other than a gift from him to the [former] wife").
Accordingly, we find that the trial court erred in awarding
Former Husband an $80, 000 credit in the marital home.
Wife also argues that the trial court abused its discretion
in valuing the marital home based on a May 2016 appraisal
rather than a February 2017 appraisal because the home
passively appreciated after Former Husband filed his petition
date for determining value of assets and the amount of
liabilities identified or classified as marital is the date
or dates as the judge determines is just and equitable under
the circumstances." § 61.075(7), Fla. Stat. (2018).
"[W]hen marital assets have appreciated passively since
the filing date, the date of the final hearing generally
should be used. When marital assets have appreciated due to
the work efforts of either party since the filing date, the
filing date should be used." Parry v. Parry,
933 So.2d 9, 14 (Fla. 2d DCA 2006) (quoting Victoria M. Ho
& James Rhett Brigman, A Seven-Step Analysis of
Equitable Distribution in Florida Part I: Classification and
Valuation of Marital Property, 73 Fla. Bar. J. 62, 67
2016, the marital home was appraised at $192, 000, but in
February 2017, three months before trial, it was appraised at
$220, 000. The record does not reflect that this $28, 000
increase arose from any source other than market forces. The
trial court awarded Former Husband the marital home, and thus
he received the entire value of the passive appreciation. We
find that this resulted in an inequitable benefit to Former
Husband, such that the trial court abused its discretion in
valuing the home based on the May 2016 appraisal rather than
the February 2017 appraisal, which was completed closer to
the date of trial.
Accordingly, we remand for a recalculation of the equitable
distribution award in light of this opinion. Because we must
remand, we decline to address Former Wife's claim
regarding the ...