               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT



ANDREW J. MATTHEWS,                )
                                   )
           Appellant,              )
                                   )
v.                                 )                 Case No. 2D17-2834
                                   )
THERESA L. MATTHEWS,               )
                                   )
           Appellee.               )
___________________________________)

Opinion filed February 8, 2019.

Appeal from the Circuit Court for
Hillsborough County; Marion L. Fleming,
Associate Senior Judge.

Allison M. Perry of Florida Appeals &
Mediations, P.A., Tampa, for Appellant.

Elinor P. Smith of Elinor P. Smith, P.A.,
Tampa, for Appellee.

KHOUZAM, Judge.

              Andrew Matthews, the Former Husband, appeals the final judgment of

dissolution of his marriage to Theresa Matthews, the Former Wife. Because the trial

court abused its discretion in denying the Former Husband's request for reimbursement

of half the payments he made on a mortgage and home equity line of credit (HELOC)

against the marital home during the pendency of the dissolution proceedings, we
reverse and remand for the trial court to credit the Former Husband for these payments

and reconsider the equitable distribution scheme in light of this change.

              The Former Wife filed a petition for dissolution of marriage on November

9, 2015, after about twenty-three years of marriage. The Former Husband filed his

answer and counter-petition on January 21, 2016. The two spouses lived together with

their minor child in the marital home for the duration of the proceedings. Later, they

entered into a Marital Settlement Agreement which distributed their assets and set forth

parenting rights and obligations, including future child support. Neither party requested

alimony or retroactive child support in either the settlement agreement or the pleadings.

              During the roughly seventeen-month dissolution proceedings, the Former

Husband made sixteen payments on a mortgage and line of credit against the marital

home, totaling $37,584. He requested credit or reimbursement for half of that amount,

$18,792, as the Former Wife's share of the obligation to maintain the marital home. The

trial court denied this request in the final judgment and denied a motion for rehearing.

              "Reimbursement or credit for a party's payment of marital property-related

expenses during separation is a matter of judicial discretion in light of all relevant

circumstances." Parks v. Parks, 18 So. 3d 1072, 1073 (Fla. 2d DCA 2009) (quoting

Stock v. Stock, 693 So. 2d 1080, 1086 (Fla. 2d DCA 1997)). However, "[g]enerally,

when a husband and wife are jointly responsible for the mortgage on real property and

one spouse pays the entire mortgage during the pendency of the dissolution, as part of

the judgment of dissolution, the paying spouse is entitled to credit for half the total

payments made." Sheehan v. Sheehan, 943 So. 2d 818, 821 (Fla. 4th DCA 2006).

Thus, while a trial court has discretion to disproportionately credit expenses incurred on




                                            -2-
a marital home during dissolution, adequate justification for an unequal award must be

provided in the trial court's findings or, at a minimum, in the record evidence. Cintron v.

King, 961 So. 2d 1010, 1013 (Fla. 4th DCA 2007).

              Here, neither the trial court nor the record before us provides adequate

justification for the unequal award of the mortgage and HELOC payments. The trial

court erroneously reasoned that the unequal award was justified because the Former

Husband was not paying child support during the proceedings, the Former Husband's

income was greater than the Former Wife's, and the Former Husband was living in the

marital home with the Former Wife and their minor child during the proceedings.

              In addressing the first two justifications, the Former Wife appropriately

concedes that it was error for the trial court to rely on the lack of retroactive child

support and the difference between the parties' income because neither party had

requested retroactive child support or alimony, see § 61.08(2)(e), Fla. Stat. (2015)

(including difference in income as a factor to be considered in the context of alimony

award). "The courts of this state have consistently held that a trial court does not have

the authority to decree relief that has neither been requested by way of pleading nor

tried by consent." Koehler v. Roberts, 661 So. 2d 374, 374 (Fla. 2d DCA 1995). As the

parties did not request such relief, it was improper for the court to consider factors only

relevant to retroactive child support and alimony, and these factors cannot support the

unequal award of mortgage and HELOC payments.

              Similarly, the trial court's third justification is inadequate. The mere fact

that the parties were living together in the marital home during the pendency of the




                                             -3-
proceedings is not an exceptional circumstance that would justify an unequal award.

See § 61.075(1) (listing factors that would justify a departure from equal distribution).

              Instead of making any argument that exceptional circumstances existed to

justify the unequal award, the Former Wife claims that the Former Husband is not

seeking reimbursement for paying the mortgage and HELOC at all but rather seeking

rent as an ousted cotenant. It is true that one of the issues in the dissolution

proceedings was whether the Former Wife infringed upon the Former Husband's right to

occupy the marital home when she allowed her parents to move into that home. The

Former Wife relies on Barrow v. Barrow, 527 So. 2d 1373, 1377 (Fla. 1988), for the

proposition that the Former Husband cannot prevail on a claim for rent as an ousted

cotenant. But this issue is separate from the issue on appeal and therefore is not

properly before us.

              In light of the above considerations, because the lower court failed to

provide adequate justification for an unequal distribution, we hold that it abused its

discretion in not crediting the Former Husband for the Former Wife's half of the

mortgage and HELOC obligations.

              Reversed and remanded for proceedings consistent with this holding.


LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.




                                            -4-
