       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        TIMOTHY I. HOOKER,
                             Appellant,

                                   v.

                           NANCY HOOKER,
                              Appellee.

                            No. 4D13-1841

                           [August 26, 2015]

   Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Gregory M. Keyser, Judge; L.T. Case
No. 502010DR004790XXXXNB.

    Jane Kreusler-Walsh, Rebecca Mercier Vargas, and Stephanie L.
Serafin of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach,
and Melinda P. Gamot of The Gamot Law Firm, P.L., Palm Beach Gardens,
for appellant/cross-appellee.

  Susan G. Chopin of Chopin & Chopin, LP, West Palm Beach, for
appellee/cross-appellant.

FORST, J.

    Appellant Timothy Hooker (“the Husband”) appeals the amended final
judgment of dissolution, dissolving his marriage to Appellee Nancy Hooker
(“the Wife”). The Husband challenges the trial court’s finding as to the
Wife’s interest in certain properties acquired during the marriage by the
Husband’s separate non-marital funds.             The Wife cross-appeals,
challenging certain findings as to division of the properties at issue by
percentages, one of the Husband’s bank accounts, and the trial court’s
denial of her request for attorneys’ fees. We agree with the Husband that
there is a lack of evidence to support the trial court’s finding that the
Husband gifted an interest in the Hooker Hollow property to the Wife, and
we reverse on that issue. However, we disagree with his same contention
as to the Lake George property, and we thus affirm on that issue. We also
affirm on all issues raised in the Wife’s cross-appeal.

                              Background
    The parties were married in 1987 in New York. They did not have any
significant outside employment during the marriage. Instead, they were
provided for financially by the Husband’s pre-marital trust fund assets
and spent their time raising their children and training, breeding, and
showing horses.

   The parties executed a prenuptial agreement to keep their substantial
pre-marital assets separate. The agreement listed certain assets to be kept
separate from the marital estate, “[t]ogether with any and all identifiable
appreciation, substitution, improvements, additions and/or replacements
of or to any of the property described.” The document further provided,
“This Agreement shall not prevent either party from making intervivos or
testamentary provisions for the benefit of the other inconsistent herewith.”

    In 1989, the parties moved to Florida. The Wife testified that they heard
about vacant land being available in Wellington. Interested persons
needed to purchase a lottery ticket for the chance to purchase one of the
lots. The Wife’s father funded the purchase of the lottery ticket. The
parties obtained the option to purchase a lot and the Husband did so with
non-marital funds. While only the Husband signed the original purchase
money mortgage for the land and the promissory note, both parties signed
a later mortgage document for a construction loan.

   This property was developed into a working horse farm and home. The
parties lived in an apartment above the stables, which was the marital
home throughout the majority of the marriage. The Wife was in charge of
furnishing the apartment and helped clean and care for the stables and
horses. The Husband also was involved in the day-to-day management
and training of the horses as part of the business.

   Later, the Wife expressed a desire to have a summer home in the
northeast to be near her childhood home and to have greater access to the
horse shows in the region. In 1997, after about two years of searching,
the Husband purchased a vacant lot in Lake George, New York with his
non-marital assets while the Wife was in Florida with the children. The
Husband sent the Wife a card for their tenth wedding anniversary with a
picture of the lot. The mortgage on that property was in the Husband’s
name alone and the Wife never signed any of the debt related to that loan.

   The Wife was deeply involved in designing and building the home at
Lake George. She also purchased some furnishings and incidentals for
the home. The Wife believed she owned the home with the Husband
because it was a family home where they lived. The Husband did not

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remember telling the Wife whether she was an owner of the Lake George
property.

    Also in 1997, the Husband sought to turn the Florida property into a
corporation and transfer part of the title to another entity. Only the
Husband was listed as the seller, but both parties signed the warranty
deed transferring title of the property to the new corporation, known as
Hooker Hollow, LLC.1 The deed specified that this property was not the
Wife’s homestead, and the Wife signed the deed only to release any and all
homestead rights she may have had to the property. The Wife did not
believe she was giving up any interest she believed she had in the property
by signing the deed and the Husband never told her that she did not have
any interest in the property. However, only the Husband’s name appears
in the Articles of Incorporation document for Hooker Hollow, LLC as an
officer/director of that entity, which now owned the whole property. Fifty
percent of the stock of the corporation was then transferred to Trelawny
Farm. The Husband paid off the mortgage on the property with the
proceeds from the sale.

    In 2010, Trelawny Farm triggered a buy/sell provision in the contract
to buy the other 50 percent interest in Hooker Hollow. The same day the
contract for sale was signed, the Wife filed for dissolution of marriage. At
the same time, the Wife filed a lis pendens on Hooker Hollow and a motion
to freeze the proceeds of the sale of that property pending the outcome of
the dissolution.

    During the pendency of the dissolution proceedings, the parties entered
into an agreed order that the Wife would receive $1 million from the sale
proceeds of Hooker Hollow at closing, representing a partial equitable
distribution payment. The parties reserved all claims and defenses as to
this distribution for trial. This allowed for the completion of the sale of
Hooker Hollow to Trelawny Farm. As in the first transaction, only the
Husband was recognized as a selling party, but the Wife signed a transfer
deed waiving any homestead rights she may have had in the property. Also
attached to the sale documents was an affidavit of the Husband, swearing
to the fact that the Husband and Trelawny Farm are the only members of
Hooker Hollow, LLC and have the only interests in the property.

   Following a trial on the petition for dissolution, the trial court issued a
detailed final judgment.      Relevant to the appeals, the trial court
determined that Husband had traced all of his assets acquired during the
marriage back to his pre-marital assets, including the Hooker Hollow and

1   Hereinafter, this property will be referenced only as “Hooker Hollow.”

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Lake George properties. However, the court found that the Wife had an
interest in the Hooker Hollow and Lake George properties through
interspousal gift. As such, the trial court awarded the Wife 50% of the
values of Hooker Hollow and Lake George.

   The Husband moved for rehearing, primarily challenging the trial
court’s determinations as to the interspousal gift to the Wife of an interest
in Hooker Hollow and Lake George. The motion was granted after a non-
evidentiary hearing was held.

    The trial court then issued a more detailed amended final judgment.
The trial court maintained its finding that, although the Hooker Hollow
and Lake George properties were purchased with the Husband’s non-
marital assets and were titled in his name alone, they should be considered
marital assets because the Husband made an interspousal gift of an
interest to the Wife, with their actions showing joint ownership. However,
based on the rehearing, the trial court determined that an unequal
distribution was warranted because of the substantial financial
contribution of the Husband. Therefore, the court awarded 66% interest
in the Hooker Hollow property to the Husband and the remaining 34% to
the Wife, and awarded 75% interest in the Lake George property to the
Husband and the remaining 25% to the Wife. This appeal and cross-
appeal followed.

                                 Analysis

   We review the determinations of a trial court in regards to a dissolution
judgment for an abuse of discretion. Canakaris v. Canakaris, 382 So. 2d
1197, 1202 (Fla. 1980). However, we review the legal conclusions de novo.
Mondello v. Torres, 47 So. 3d 389, 392 (Fla. 4th DCA 2010).

   In the instant case, it is undisputed that the Husband purchased both
the Hooker Hollow and Lake George properties with funds that can be
traced to his pre-marital assets kept separate by the parties’ prenuptial
agreement. Because the prenuptial agreement provides that any
appreciation of those assets remains separate, the only way the Wife can
claim an interest in the Hooker Hollow and Lake George properties is by
interspousal gift. An interspousal gift is established by showing “‘(1)
donative intent, (2) delivery or possession of the gift, and (3) surrender of
dominion and control of the gift.’” Vigo v. Vigo, 15 So. 3d 619, 622 (Fla.
3d DCA 2009) (quoting Mills v. Mills, 845 So. 2d 230, 233 (Fla. 3d DCA
2003)). The burden is on the party seeking to prove an interest in the
property to show it was an interspousal gift. Vigo, 15 So. 3d at 622 (noting
that the parties’ condominium was purchased during the marriage with

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the Husband's nonmarital funds and it was titled solely in the Husband's
name, thus “at trial, the Wife was required to establish that the Husband
intended to gift to her a one-half interest in the condominium”).

     “The question of donative intent is one of a preponderance of the
credible evidence.” Laws v. Laws, 364 So. 2d 798, 801 (Fla. 4th DCA
1978). Unsupported assertions in the testimony of either party are not
dispositive of donative intent. Id. Additionally, “[a] clear and unmistakable
intention on the part of the donor to make a gift of his property is an
essential requisite of a gift inter vivos . . . ; and it has been held that this
intention must be inconsistent with any other theory.” Kuebler v. Kuebler,
131 So. 2d 211, 218 (Fla. 2d DCA 1961) (on petition for rehearing). “When
. . . the grantor’s intent is to be determined from the conflicting testimony
of the parties, it is the responsibility of the trial court to evaluate the weight
and credibility of that testimony to arrive at a determination.” Marsh v.
Marsh, 419 So. 2d 629, 630 (Fla. 1982).

    In Vigo, upon which the trial court relied, the Third District affirmed a
determination that a wife sufficiently established that her husband
intended to gift her a one-half interest in a condominium, which was
purchased during the marriage by the husband with his non-marital funds
and titled solely in the husband’s name, based on the following facts: (1)
the husband agreed to purchase the condo in Miami Beach and move there
because the wife wanted to relocate there; (2) the wife attended the closing
and signed the mortgage on the property; (3) the husband informed the
wife that he purchased the condo for both of them; (4) both parties were
named on the homeowner’s insurance policy; (5) the parties’ names
appeared on sales receipts for about $25,000 in furniture and accessories
used to furnish the condo; and (6) the condo became the parties’ marital
residence, which the wife assisted in maintaining for the parties. Vigo, 15
So. 3d at 622. The trial court concluded that this evidence showed the
husband’s intent to divest himself of all dominion and control over a one-
half interest in the property. Id. The Third District affirmed, finding no
abuse of discretion. Id. This case assists in our determination as to each
of the properties at issue in our present case.

I.    The Hooker Hollow Property

    With the Hooker Hollow property, the trial court found the following
facts, which are supported by the record, to establish an interspousal gift
of an interest in the property to the Wife:




                                        5
         The property constituted the parties’ primary marital residence
          throughout the vast majority of the marriage and was where the
          parties raised their children.

         The Wife was extremely and directly involved in all aspects of
          Hooker Hollow as a residence and business.

         Both parties signed a mortgage document for a construction loan
          on Hooker Hollow, as well as the transfer deed when changing
          the property from Hickstead Place to Hooker Hollow and then
          selling it to Trelawny Farm.

         The Wife believed that she had an interest in the property.

         The Wife’s father purchased the lottery ticket giving the parties
          the option to purchase the Hooker Hollow land.

         The Husband never told the Wife that she did not have an interest
          in the property, nor did he take any overt action to contradict the
          Wife’s belief that she had an interest.

         The Wife could and did treat this property as her own, and she
          was not limited in incurring expenses, to be paid for by the
          Husband, for maintaining and operating the home.

    However, none of these facts evidence a “clear and unmistakable
intention on the part of the [Husband] to make a gift[,]” which is needed to
establish donative intent. Kuebler, 131 So. 2d at 218. To the contrary,
there was no testimony that the Husband expressly stated or otherwise
affirmatively acknowledged that the Wife had an interest in Hooker Hollow,
rather only that the Wife believed that she had an interest because it was
the family home and family business.

    The trial court cited to Vigo in its finding of interspousal gift, and, while
the facts in Vigo are quite similar to the present case, the key distinction
is that the husband in Vigo informed the wife that he purchased the Miami
Beach condo for both of them. Vigo, 15 So. 3d at 622. No such
conversation occurred between the instant parties, and, as mentioned, the
Wife cannot otherwise point to a clear intention of the Husband to make a
gift. The Wife’s only explanation for her belief in having an interest is that
this was the family home and family business. However, a marital home
is not automatically deemed a marital or shared asset. See Embry v.
Embry, 650 So. 2d 190, 191 (Fla. 2d DCA 1995) (requiring the trial court


                                       6
to specifically designate the marital home as a marital or non-marital
asset).

   The trial court also heavily relied on the fact that the Husband did not
convey to the Wife that she did not have an interest in the properties or
take an overt action to contradict her belief and that the Wife made
significant contributions to the property. However, an overt action is not
required to prove that an asset has not been gifted, and the provisions of
the prenuptial agreement support this property being a non-marital asset
unless the Wife could show the elements of a gift, including donative
intent. Even though the Wife actively contributed to the appreciation of
this property, the prenuptial agreement provided “any and all identifiable
appreciation” remains non-marital. Without evidence of an intent on the
part of the Husband to gift the Wife an interest in the property, his non-
actions in regards to the property and the Wife’s contributions to the
property are of little relevance to the analysis of an interspousal gift.

   Additionally, the Wife’s name was kept off the title and the original
mortgage for the property; when the Husband had an opportunity to make
any donative intent clear through the creation of the corporation, he chose
to keep the corporation solely in his name and subsequently excluded the
Wife’s name from the final sale of the property. The Wife’s name was
included in sale documents solely to establish that she did not have a
homestead interest in the property, which does not evidence donative
intent, but rather the Husband ensuring the buyer of unburdened title.

    Under the preponderance of the credible evidence standard for finding
donative intent, the facts found by the trial court do not evidence a clear
donative intent by the Husband. See Laws, 364 So. 2d at 801. Rather,
the facts regarding the Wife’s involvement with Hooker Hollow simply
evidence that the Wife took care of her residence, regardless of ownership.
Furthermore, there are other business explanations for having the Wife as
part of the construction loan mortgage document and the transfer deeds.
What are most significant, though, are the facts that she never was liable
on the loans and that her name never was included on any documents
evidencing actual ownership when the Husband had multiple
opportunities to acknowledge any interest he intended her to have. But
see Kuebler, 131 So. 2d at 219 (holding that even being named on
documents is not sufficient without donative intent). As such, we hold the
trial court erred in finding that the Wife had an interest in the Hooker
Hollow property by virtue of an interspousal gift.

II.   The Lake George Property


                                    7
   With the Lake George property, the trial court found the following facts,
which are supported by the record, to establish an interspousal gift of an
interest in the property to the Wife:

         The property constituted the family’s summer             residence
          throughout the vast majority of the marriage.

         The Wife was extremely and directly involved in all aspects of the
          Lake George property.

         The Wife understood from the Husband that she had an interest
          in this property as a wedding anniversary gift to her as evidenced
          by the Husband’s anniversary card.

         The Husband never told the Wife that she did not have an interest
          in the property, nor did he take any overt action to contradict the
          Wife’s belief that she had an interest.

         The Wife paid for some furnishings and incidentals for this
          residence from her separate funds.

         The Wife could and did treat the property as her own, and she
          was not limited in incurring expenses, to be paid for by the
          Husband, for maintaining and operating it.

    Unlike with Hooker Hollow, these facts evidence sufficient donative
intent to uphold the trial court’s determination. The Husband’s “clear and
unmistakable” intention with the Lake George property was, at least in
part, as a gift to the Wife, which was established through the Wife’s
testimony about the Husband sending her a card for their tenth wedding
anniversary with a picture of the property. This was after the Wife had
expressed her desire to have a home up north and both parties searched
for a suitable property. Additionally, the Wife purchased some furnishings
and incidentals for the home from her separate funds.

   These facts are substantially more akin to those seen in Vigo, where the
court concluded that an interspousal gift existed where the husband
bought a property where the wife desired to live, where he told her the
home was for both of them, and where the parties both contributed to
furnishing the home, among other things. Vigo, 15 So. 3d at 622. While
here the Wife’s name does not appear on any of the official documents
related to the Lake George property, this is not dispositive as donative
intent was otherwise conveyed through the anniversary card.


                                      8
    Because there is evidence of donative intent with regards to the Lake
George property, we turn to the remaining two elements of a gift: delivery
or possession and surrender of dominion and control. Id. In regards to
delivery or possession, we hold the trial court did not abuse its discretion
in finding that delivery was made at the time the Wife obtained keys to the
property and began to possess the property as her summer home
according to the intention of the Husband. Also, in regards to the
Husband’s surrender of dominion and control of the property, the evidence
is uncontroverted that the Wife had unfettered access to the home and
made decisions on care and maintenance of the property with the ability
to incur expenses on behalf of the Husband, evidencing the Husband’s
surrender of control to her, at least in part.

   Because the evidence supports the trial court’s determination that an
interspousal gift of an interest in the Lake George property occurred, the
property was subject to equitable distribution as a marital asset. Id. We
therefore affirm the award of a 25% interest in the property to the Wife.
As to the Wife’s challenge of that percentage, arguing the trial court failed
to make specific written findings to support the unequal distribution, we
hold that the trial court made the appropriate findings as required under
section 61.075, Florida Statutes (2010).

    Section 61.075(1) allows for unequal distribution of an asset when the
court finds it is justified based on a non-exhaustive list of relevant factors.
The factors relevant here are: the contributions of each spouse to the
marriage; each spouse’s economic circumstances; desirability of retaining
an asset; the contribution of each spouse to the acquisition and
enhancement of an asset; and “[a]ny other factors necessary to do equity
and justice between the parties.” § 61.075(1), Fla. Stat. (2010). The
statute also requires any distribution of marital assets to be supported by
factual findings in the judgment based on competent substantial evidence
in the record with reference to these statutory factors. § 61.075(3) Fla.
Stat. (2010); Peacock v. Peacock, 879 So. 2d 96, 97 (Fla. 4th DCA 2004).
Additionally, “[t]he fact that an asset is determined to be an interspousal
gift and then characterized as a marital asset does not mandate that the
asset be split equally when an unequal split is ‘necessary to do equity and
justice between the parties.’” Williams v. Williams, 686 So. 2d 805, 808
(Fla. 4th DCA 1997) (quoting § 61.075(1)(j), Fla. Stat. (1995)).

   In the present case, the trial court made written factual findings based
on competent substantial evidence in the record and with consideration of
the statutory factors when ordering an unequal distribution of the Lake
George property. The trial court specifically noted:

                                      9
      The primary factors considered by the Court are that the
      Husband’s assets were primarily used to purchase these
      properties and the improvements, furniture and furnishings
      in these properties, and the Husband’s assets were used to
      pay for the daily expenses for the family living in these
      residences and maintaining these residences. Apart from
      these financial contributions, the Wife did contribute
      substantially to all decisions related to these homes and the
      care and education of the children raised in these homes, and
      her services as a homemaker. The Court considered the other
      factors enumerated in Florida Statute §61.075(1), but
      primarily relies upon the financial contributions of the
      Husband to support unequal distribution of these properties
      to do equity and justice between the parties.

This statement, as well as the other detailed findings and analyses in the
judgment, clearly evidences that the trial court complied with the
requirements of the statute and appropriately considered the statutory
factors, emphasizing which factors were most relevant under the
circumstances of the case but maintaining that all were considered, in
making its determination. See § 61.075(3), Fla. Stat. (2010).

    The court’s determination also is supported by the record where the
facts indicate that the Husband was the sole financial contributor to the
building and maintenance of Lake George from his separate non-marital
funds. The trial court considered both parties’ contributions and arrived
at percentages that it determined reflected those contributions. The
factors discussed in the judgment support those percentages as being fair
and reasonable determinations of the trial court under the circumstances,
especially where there was no obligation on the court to award equal
distribution. Williams, 686 So. 2d at 808. The statute does not require
the trial court to further justify the 25% award by assigning a specific
dollar value to each party’s contributions as the Wife suggests. To the
contrary, a percentage value better represents what type of interest in the
Lake George property the Husband intended to gift the Wife. As such, we
find no merit in the Wife’s argument in her cross-appeal and affirm the
award of a 25% interest in the Lake George property to the Wife. We also
affirm the remaining two issues in the Wife’s cross-appeal without further
comment.

                               Conclusion

   Based on the foregoing, we reverse the amended final judgment as to

                                    10
the trial court’s determination that the Husband gifted an interest in the
Hooker Hollow property to the Wife. This holding entails a reversal of the
entire equitable distribution schedule, which the trial court must
recalculate on remand after awarding 100% of the Hooker Hollow property
to the Husband as his own non-marital property. Banton v. Parker-Banton,
756 So. 2d 155, 156 (Fla. 4th DCA 2000) (“When reversible error occurs
with regard to valuation or distribution, the entire distribution scheme
must be reversed and remanded to allow the trial court to ensure both
parties receive equity and justice.”). We affirm the amended final judgment
in all other respects.

   Affirmed in part; Reversed in part and Remanded.

STEVENSON and LEVINE, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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