Filed: May 02, 2016
Latest Update: Mar. 02, 2020
Summary: IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED GUILLERMO SALAZAR, Appellant, v. Case No. 5D15-2065 CLAUDIA M. GIRALDO, Appellee. _/ Opinion filed May 6, 2016 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge. Jeffrey A. Conner, Winter Garden, for Appellant. Brian M. Monk, of Boyette, Cummins & Nailos, PLLC, Clermont, for Appellee. PER CURIAM. Guillermo Salazar (“For
Summary: IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED GUILLERMO SALAZAR, Appellant, v. Case No. 5D15-2065 CLAUDIA M. GIRALDO, Appellee. _/ Opinion filed May 6, 2016 Appeal from the Circuit Court for Lake County, Mark J. Hill, Judge. Jeffrey A. Conner, Winter Garden, for Appellant. Brian M. Monk, of Boyette, Cummins & Nailos, PLLC, Clermont, for Appellee. PER CURIAM. Guillermo Salazar (“Form..
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
GUILLERMO SALAZAR,
Appellant,
v. Case No. 5D15-2065
CLAUDIA M. GIRALDO,
Appellee.
________________________________/
Opinion filed May 6, 2016
Appeal from the Circuit Court
for Lake County,
Mark J. Hill, Judge.
Jeffrey A. Conner, Winter Garden,
for Appellant.
Brian M. Monk, of Boyette, Cummins
& Nailos, PLLC, Clermont, for Appellee.
PER CURIAM.
Guillermo Salazar (“Former Husband”) appeals the amended final judgment
dissolving his marriage to Claudia M. Giraldo (“Former Wife”) following trial. Former
Husband raises five issues. We agree with Former Husband that the trial court erred in
failing to consider whether he is entitled to credits or setoffs for his payment of certain
expenses incurred in maintaining the former marital home, owned by the parties,
pending the sale of the home. We affirm on all other issues without further discussion.
The amended final judgment directed that the former marital home be
immediately placed on the market by the parties and listed for sale at a mutually
agreeable price, provided that if the parties could not agree on a price, then the home
would be listed at a “reasonable” price as determined by a qualified real estate
professional. Upon the sale of the home, the parties were to equally divide the net
proceeds. Pending sale, Former Husband was awarded exclusive use and possession
of the home and was ordered to pay: (1) the monthly mortgage payment; (2) the real
estate taxes; and (3) “all other financial obligations pertaining to the home until the
home sells.” Former Husband was also directed to keep the home in a “show-ready
condition” until it sells.
Former Husband argues that the trial court erred in failing to award him credits or
reimbursements from the sale proceeds resulting from his payment of Former Wife’s
share of the aforementioned expenses associated with the former marital home.
Section 61.077, Florida Statutes (2015), provides:
A party is not entitled to any credits or setoffs upon
the sale of the marital home unless the parties’ settlement
agreement, final judgment of dissolution of marriage, or final
judgment equitably distributing assets or debts specifically
provides that certain credits or setoffs are allowed or given at
the time of the sale. In the absence of a settlement
agreement involving the marital home, the court shall
consider the following factors before determining the issue of
credits or setoffs in its final judgment:
(1) Whether exclusive use and possession of the
marital home is being awarded, and the basis for the award;
(2) Whether alimony is being awarded to the party in
possession and whether the alimony is being awarded to
cover, in part or otherwise, the mortgage and taxes and
other expenses of and in connection with the marital home;
2
[I]n my view, a specific pleading for partition of the marital
home should not be required for a trial court to dispose of
that home. Given the equitable distribution statute, section
61.075, Florida Statutes (2013), and the fact that, in many
cases, the marital home is the only asset of significant value,
the requirement is outdated and unnecessary. . . . In
situations where a trial court is likely to order the sale or
other distribution of the marital home, the parties have been
unable to resolve the issue of ownership of the homestead
and accompanying debt and are in need of the trial court’s
intervention. No one is surprised when the court does so as
part of the equitable distribution scheme.
128 So. 3d at 191 (Cohen, J. concurring)4 (citation omitted); see also Riley v. Edwards-
Riley,
963 So. 2d 829, 830–31 (Fla. 3d DCA 2007) (holding that the equitable
distribution statute renders it “no longer necessary to seek partition as part of a
dissolution action to divide or distribute a parcel of property owned by a husband and a
wife”). In the present case, no one should have been surprised that the marital home
needed to be sold to facilitate and accomplish the equitable distribution of all of the
parties’ marital assets and marital liabilities.
4 Then Chief Judge Torpy joined in Judge Cohen’s concurring opinion.
10
On remand, the trial court may take additional evidence on this issue as
necessary.
AFFIRMED, in part; REVERSED, in part; and REMANDED for further
proceedings.
ORFINGER and EDWARDS, JJ., concur.
LAMBERT, J., concurs, with opinion.
4
LAMBERT, J., concurring. 5D15-2065
I concur with the opinion of the court, but write to address Former Husband’s
argument that the trial court erred in ordering the sale of the parties’ marital home.
In June 2014, Former Husband filed a petition for dissolution of marriage.
Pertinent to this appeal, Former Husband alleged that, during the course of their
marriage, the parties had acquired certain assets and liabilities, including the marital
home, and he requested that these assets and liabilities be equitably distributed by the
court. Former Husband did not specifically allege in his petition that the marital home
should be distributed solely to him. Former Wife timely answered the petition in which
she agreed that the parties had acquired marital assets and liabilities that should be
equitably distributed.
On December 1, 2014, the court entered an order setting the case for a pretrial
conference. Pursuant to this order, both parties were ordered to file pretrial compliance
statements in which each party was to list for the court the assets and debts to be
divided, the value of each asset, and the proposed distribution of each asset and
liability. The parties filed their respective pretrial memoranda; however, neither party
provided to the court their proposed disposition of the marital home. Thus, at this point
in the litigation, neither party had filed a pleading or document seeking either the sale of
the marital home or the specific distribution of the home to one party or the other.
Following the pretrial conference, the court entered an order scheduling trial for
early March 2015. Shortly before trial, Former Wife changed counsel. Former Wife’s
new counsel moved for a continuance of the trial and separately moved for leave to
amend Former Wife’s answer and to file a counterpetition for dissolution of marriage.
5
Former Wife attached to her motion a copy of the proposed amended answer and
counterpetition. Among other things, Former Wife now pleaded for the former marital
home to be sold and that the net sale proceeds be equally divided between the parties.
Former Husband promptly filed a response, objecting to both Former Wife’s motion for
continuance and her request for leave to amend. Notably, Former Husband did not
state how he would be prejudiced by the amendment, but only that he would be
prejudiced by the continuance due to the additional costs that he would incur.
Neither party secured a ruling from the court prior to trial on Former Wife’s
motion to file an amended pleading. The trial, however, was not continued. During the
trial, Former Wife orally reiterated her pretrial request for leave to amend her pleadings
for the marital home to be sold and the net sale proceeds divided equally. At the
conclusion of the trial, the court provided the parties with the opportunity to file written
closing arguments. In his closing argument, Former Husband requested that the court
distribute the marital home and the indebtedness on the home to him. Former Husband
suggested that, if the court granted his requested relief and further agreed with the
values he attributed to the marital assets and liabilities and his proposed distribution of
these assets and liabilities, the court should also order him to pay to Former Wife the
sum of $15,648.50 to balance the distribution of the assets and liabilities.
In her closing argument, Former Wife requested that the marital home be sold
and that the net proceeds from the sale be equally divided between the parties. Former
Wife argued that Florida Rule of Civil Procedure 1.190(b)1 provided the court with the
1 Florida Rule of Civil Procedure 1.190(b) provides in pertinent part:
6
authority to order this sale by allowing her pleadings to be amended to conform to the
evidence at trial. The trial court agreed with Former Wife and, in the amended final
judgment, granted her motion to amend her pleadings to conform with the evidence,
and it ordered that the marital home be sold and the net sale proceeds equally divided.
On appeal, Former Husband first argues that the trial court erred in ordering the
sale of the marital home because the issue of the partition and sale of the marital home
was not tried by the express or implied consent of the parties as evidenced by his
objections at trial to testimony on this issue. See Todaro v. Todaro, 704 So. 2d 138,
139–40 (Fla. 4th DCA 1997) (finding issues were not tried by implied consent where
wife objected at hearing). Second, Former Husband contends that this court’s recent
opinions in Richeson v. Richeson,
170 So. 3d 842 (Fla. 5th DCA 2015), and Hodges v.
Hodges,
128 So. 3d 190 (Fla. 5th DCA 2013), in which we held that the trial courts erred
in directing the sale of marital real property, absent a pleading seeking partition of the
property, compels reversal. Neither argument is persuasive.
Partition actions are governed by chapter 64 of the Florida Statutes. Section
64.041, Florida Statutes (2015), provides that a complaint in partition “shall allege a
______________________
(b) Amendments to conform with the Evidence. When
issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. . . . . If
the evidence is objected to at the trial on the ground that it is
not within the issues made by the pleadings, the court may
allow the pleadings to be amended to conform with the
evidence and shall do so freely when the merits of the cause
are more effectually presented thereby and the objecting
party fails to satisfy the court that the admission of such
evidence will prejudice the objecting party in maintaining an
action or defense upon the merits.
7
description of the lands of which partition is demanded, the names and places of
residence of the owners . . . or other persons interested in the lands[,] . . . the quantity
held by each, and such other matters, if any, as are necessary to enable the court to
adjudicate the rights and interests of the party.”
Although Former Wife did not couch her request for the sale of the marital home
as a separate cause of action for partition, she did aver in her counterpetition that the
parties acquired the marital home during their marriage, that each owned an equal
interest in the real property, provided in this pleading both the legal description and the
parcel tax identification number for the property, and essentially requested that the
marital home be listed for sale and the net sale proceeds be distributed equally between
the parties. I see no meaningful difference between the statutory pleading requirements
of a partition action and the allegations contained in Former Wife’s pleading. To me,
Former Wife’s pleading substantially complied with section 64.041.2 Cf. Savage v.
Savage, 556 So. 2d 1213, 1214 (Fla. 2d DCA 1990) (finding that husband’s plea for
partition in his complaint, though lacking a legal description of the property, substantially
complied with section 64.041, and that it should have been granted).
The court acted well within its discretion by allowing the amendment to Former
Wife’s pleading under rule 1.190(b) because Former Husband has not shown how he
was prejudiced in presenting his case or how the merits of the case were not more
effectively presented by allowing the amendment. See Musso v. Musso, 670 So. 2d
122 (Fla. 4th DCA 1996) (affirming the trial court’s order of partition because the
2 In her proposed counterpetition, Former Wife did not allege the parties’ places
of residence. The evidence at trial established that Former Husband was residing in the
marital home.
8
appellant failed to show that the trial court abused its discretion in allowing the
amendment under rule 1.190(b)). Moreover, if, in the amended final judgment, the
court, rather than permitting the amendment to Former Wife’s pleading pursuant to rule
1.190(b) to conform with the evidence at trial, had simply granted Former Wife’s pretrial
motion to amend her pleadings, then Former Husband’s apparent concern regarding the
lack of a sufficient pretrial pleading from Former Wife would have been alleviated.
The need to sell the marital home to achieve an equal and, in this case, an
equitable distribution of the parties’ marital assets and liabilities was cogently
recognized by the trial court. If we were to agree with Former Husband and reverse this
case with directions that the trial court distribute the marital home and its indebtedness
to him, then, based on the values of the parties’ other assets and liabilities as
determined by the court in the amended final judgment,3 in order for the court to achieve
a true equitable distribution, the other assets previously distributed to Former Husband
would now have to be distributed to Former Wife. The court would have to redistribute
Former Husband’s car and his 401(k) to Former Wife and Former Wife’s credit card
liability would have to be redistributed to Former Husband. Furthermore, Former
Husband would still be required to pay Former Wife a cash sum, albeit less than
suggested by Former Husband in his closing argument, to achieve an equal, 50/50
division of the marital assets and liabilities. Resolving this case in such a manner
makes little sense.
Finally, I agree with Judge Cohen’s concurring opinion in Hodges where he
wrote, in pertinent part:
3 These valuations have not been challenged in this appeal.
9
[I]n my view, a specific pleading for partition of the marital
home should not be required for a trial court to dispose of
that home. Given the equitable distribution statute, section
61.075, Florida Statutes (2013), and the fact that, in many
cases, the marital home is the only asset of significant value,
the requirement is outdated and unnecessary. . . . In
situations where a trial court is likely to order the sale or
other distribution of the marital home, the parties have been
unable to resolve the issue of ownership of the homestead
and accompanying debt and are in need of the trial court’s
intervention. No one is surprised when the court does so as
part of the equitable distribution scheme.
128 So. 3d at 191 (Cohen, J. concurring)4 (citation omitted); see also Riley v. Edwards-
Riley,
963 So. 2d 829, 830–31 (Fla. 3d DCA 2007) (holding that the equitable
distribution statute renders it “no longer necessary to seek partition as part of a
dissolution action to divide or distribute a parcel of property owned by a husband and a
wife”). In the present case, no one should have been surprised that the marital home
needed to be sold to facilitate and accomplish the equitable distribution of all of the
parties’ marital assets and marital liabilities.
4 Then Chief Judge Torpy joined in Judge Cohen’s concurring opinion.
10
