                                        IN THE DISTRICT COURT OF APPEAL
                                        FIRST DISTRICT, STATE OF FLORIDA

MAI NGUYEN, FORMER                      NOT FINAL UNTIL TIME EXPIRES TO
WIFE,                                   FILE MOTION FOR REHEARING AND
                                        DISPOSITION THEREOF IF FILED
      Appellant,
                                        CASE NO. 1D15-4451
v.

HUONG KIM NGUYEN,
FORMER HUSBAND,

      Appellee.


_____________________________/

Opinion filed August 11, 2016.

An appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

Beth M. Terry, Law Office of Beth M. Terry, P.A., Jacksonville, for Appellant.

Carin E. Maxey, Maxey Law, P.A., Jacksonville, for Appellee.




PER CURIAM.

      Mai Nguyen, the Former Wife, appeals the trial court’s Order on Remand and

raises five issues. We find merit only in her argument that the trial court erred in its

allocation of rental income in devising the equitable distribution scheme and, for the
reasons that follow, reverse that portion of the equitable distribution and remand for

further proceedings; we otherwise affirm without discussion.

                                    Background

      The Former Wife and Huong Kim Nguyen, the Former Husband, married in

1991. The Former Husband filed a petition for dissolution of marriage in October

2003, but the parties subsequently reconciled and the case was voluntarily dismissed.

The parties’ final separation occurred in July 2009, and the trial was held in March

2013. The real properties at issue were located at 11322 Reed Island Drive,

Jacksonville, FL; 328 SW 5th Avenue, Gainesville, FL; 4415 SW 34th Street, #602,

Gainesville, FL; 4415 SW 34th Street, #202, Gainesville, FL; 6632 Merrill Road,

Jacksonville, FL; 6345 Redwood Oak Drive, Orlando, FL; and 1851 Aston Hall

Drive East, Jacksonville, FL.

      In July 2013, the trial court entered a Supplemental Final Judgment of

Dissolution of Marriage, in which it found in part as follows:

      The Former Wife received $244,627.00 in total net monthly rental
      income from the parties’ marital assets (real property) of which she has
      continued to attempt to and has fraudulently conveyed, transferred
      and/or hid since the parties’ date of separation of July 1, 2009. The
      Former Wife additionally received $257,652.00 in net rental income
      from the parties’ marital assets of which she has continued to attempt
      to and has fraudulently conveyed, transferred and/or hid since the
      parties’ date of filing of October 24, 2003 until the date of separation
      of July 1, 2009. This makes a total of $502,279.00 in rental income
      from the parties’ marital assets of which the Former Wife has solely
      received, conveyed, transferred and/or hid.

                                          2
(Emphasis omitted.) In its equitable distribution scheme, the trial court distributed

the real properties and any corresponding mortgages and allocated $502,279 in rental

income to the Former Wife. This Court reversed the equitable distribution scheme

in the supplemental final judgment and remanded for the trial court to make findings

of fact explaining the evidentiary source of the amount of rental income allocated to

the Former Wife. Nguyen v. Huong Kim Huynh, 147 So. 3d 639, 639-40 (Fla. 1st

DCA 2014).

      The trial court in turn entered an Order on Remand, wherein it found that the

Former Wife “received $298,690.00 in net rental income from the parties’ marital

assets, of which she has hid since the parties’ date of filing in October 2003 until the

date of separation in July 2009,” “received an additional $243,452.00 in net rental

income from the parties’ marital assets, of which she has hid since the parties’ date

of separation in July 2009,” and “has solely received, transferred, conveyed, and/or

hid $542,142.00 in total rental income from the parties’ marital assets.” With regard

to the Redwood Oak Drive property, the trial court found that the Former Wife

received $71,700 in rental income from July 2003 to July 2009 and $48,662 from

August 2009 to March 2013, with $950 per month from July 2003 to August 2005,

$1,000 per month from September 2005 to December 2009, and $1,149 per month

from August 2009 to March 2013. Regarding the 5th Avenue property, the trial

court found that the Former Wife received $36,100 in rental income from June 2006

                                           3
to July 2009 and $40,850 from August 2009 to March 2013, with $950 per month.

Concerning the 34th Street #202 property, the trial court found that the Former Wife

received $12,000 in rental income from August 2003 to December 2004 and $32,250

from August 2009 to March 2013, with $750 per month. With regard to the 34th

Street #602 property, the trial court found that the Former Wife received $53,290

from 2003 to 2009 and $34,440 from August 2009 to March 2013, with $800 per

month from August 2003 to March 2013, with the exception of July 2006 to July

2007, when she earned $530 per month. As for the Merrill Road property, the trial

court found that the Former Wife received $45,600 in rental income from June 2006

to July 2009 and $40,850 from August 2009 to March 2013, with $1,200 per month.

Lastly, regarding the Aston Hall Drive property, the trial court found that the Former

Wife received $84,000 in rental income from October 2003 to July 2009 and $46,440

since 2009, with $1,200 per month from October 2003 to July 2009 and $1,080 per

month since 2009. The trial court made certain findings of fact as to the real

properties and the incomes they generated, found that the Former Wife was the sole

beneficiary of all the rental income and the Former Husband did not obtain any of

the $542,142 she received since 2003, and rendered findings of fact in support of its

conclusion that the Former Wife acted with actual intent to defraud the Former

Husband in relation to the real properties. The trial court adopted and incorporated

by reference the equitable distribution scheme set forth in the supplemental final

                                          4
judgment and attached as Exhibit A a spreadsheet showing the monthly rental

income for each of the six properties and the total rental income figures. This appeal

followed.

                                        Analysis

       A trial court’s ruling on equitable distribution is reviewed for an abuse of

discretion, Stough v. Stough, 18 So. 3d 601, 604 (Fla. 1st DCA 2009), and an

appellate court must determine whether the trial court’s order is supported by

competent, substantial evidence. Hodge v. Hodge, 129 So. 3d 441, 443 (Fla. 5th

DCA 2013); see also § 61.075(3), Fla. Stat. (2009) (“In any contested dissolution

action wherein a stipulation and agreement has not been entered and filed, any

distribution of marital assets or marital liabilities shall be supported by factual

findings in the judgment or order based on competent substantial evidence . . . . The

distribution . . . shall include specific written findings of fact as to the following: . .

. (d) Any other findings necessary to advise the parties or the reviewing court of the

trial court’s rationale for the distribution of marital assets and allocation of

liabilities.”). A trial court errs in attributing gross rental income to a party when

evidence of expenses is present. Betancourt v. Betancourt, 50 So. 3d 768, 769 (Fla.

2d DCA 2010) (reversing an alimony award where the trial court failed to consider

the evidence of expenses and attributed the gross rental income to the appellant); see

also Hodge, 129 So. 3d at 443.

                                            5
      In the case before us, the trial court referred to its figures as representing “net

rental income,” yet it failed to account for the record evidence of expenses associated

with the properties, which included mortgage payments. Indeed, the trial court made

no reference to, or findings of fact concerning, expenses. Given such, we reverse

the equitable distribution scheme as it relates to the allocation of rental income.

      As the Former Wife argues, the trial court made a number of additional errors

regarding its allocation of rental income. For one, the trial court did not explain and

the record does not disclose why it attributed 100%, as opposed to 50%, of the rental

income from the marital properties to the Former Wife.

      Additionally, with regard to the 2003-2009 period, the order and Exhibit A

thereto reveal that the trial court accounted for rent received in the months that

preceded the October 2003 filing of the action, yet its final figure purports to

represent the rental income the Former Wife received between October 2003 and

July 2009, and it failed to provide an explanation for the inclusion of those months.

Further, the rental income figures in the body of the order do not add up to the

allocated amount of $298,690 [$71,700 for Redwood Oak Drive + $36,100 for 5th

Avenue + $12,000 for 34th Street #202 + $53,290 for 34th Street #602 + $45,600

for Merrill Road + $84,000 for Aston Hall Drive = $302,690]. Notably, Exhibit A

lists the income for 34th Street #602 as $49,290—not as $53,290 like the body of

the order—, which does lead to a total of $298,690. That $298,690 figure also differs

                                           6
from the $257,652 figure in the supplemental final judgment, whose equitable

distribution scheme the trial court adopted. Moreover, regarding the 34th Street

#602 property, the trial court’s $53,290 figure for August 2003 through July 2009 is

erroneous [$28,000 from August 2003 to June 2006 at $800 per month + $6,890

from July 2006 to July 2007 at $530 per month + $19,200 from August 2007 to July

2009 at $800 per month = $54,090].

       Furthermore, concerning the 2009-2013 period, Exhibit A reflects that the

trial court doubled the rental income for each property for March 2013, but the court

provided no explanation and the record reveals no reason for doing so. With regard

to the Redwood Oak Drive property, the trial court found in the order that the

property was rented for $1,149 per month from August 2009 to March 2013, while

Exhibit A indicated a monthly rent of $1,000 for 2009. Also, the trial court’s

$48,662 figure for this time period is mathematically incorrect [44 months x $1,149

per month = $50,556]. Additionally, we find that the $1,149 monthly figure is not

supported by competent, substantial evidence as the only record evidence of that

figure is found in a narrative question the Former Husband’s attorney posed to the

Former Wife. As for the Merrill Road property, the trial court’s allocation of

$40,850 in rent from August 2009 to March 2013, at $1,200 per month, was also

mathematically incorrect [44 months x $1,200 per month = $52,800], and the $1,200

monthly rental figure contained in the order is inconsistent with the $950 monthly

                                         7
figure in Exhibit A. We also find that the $1,200 figure is not supported by

competent, substantial evidence because although the Former Husband testified the

property was rented for $1,200 per month according to checks he saw, he did not

indicate the dates of the checks and the rental agreement that was admitted into

evidence showed the property was rented for $750 per month starting in December

2009. Lastly, we find that the trial court’s allocation of rental income for the Aston

Hall Drive property for the 2009-2013 period is not supported by competent,

substantial evidence in light of the undisputed testimony that the Former Wife was

residing at that property from the end of 2009 and the lack of evidence showing that

it was rented out thereafter.

                                     Conclusion

      For the foregoing reasons, we reverse the equitable distribution scheme

relating to rental income in the Order on Remand and remand for further proceedings

consistent with this opinion. The trial court may revisit any related financial issue

to the extent it is affected by any changes in the equitable distribution plan.

      AFFIRMED in part, REVERSED in part, and REMANDED for further

proceedings.


LEWIS, WETHERELL, and RAY, JJ., CONCUR.




                                           8
