         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                           No. 1D18-9
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LINDA BYRD GOLEY,

    Appellant,

    v.

ROBERT ANTHONY GOLEY,

    Appellee.
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On appeal from the Circuit Court for Madison County.
William R. Slaughter, Judge.

                           May 6, 2019


M.K. THOMAS, J.

     Linda Goley, the former wife, appeals the trial court’s award
of an equity interest and claim in certain property and using the
property interest as an offset against her claims for alimony and
attorney’s fees. Although the trial court erred in regarding the
property as a marital asset, we affirm because the award is
otherwise supported by the evidence.

                             I. Facts

     The parties were married for twenty-one years before
initiating dissolution proceedings.     At the final dissolution
hearing, both parties testified about marital assets and a property
located in Ponce de Leon, Florida. The property is a 120-acre tract
bordering land owned by the former wife’s parents. The parties
testified that they purchased the property with the parents.
Specifically, the parents made a lump sum down payment of
$15,000 and took out a loan on the property. The property was
titled in the parents’ names. The oral agreement, which was never
committed to writing, entailed the parties making all payments on
the property loan. Once the loan was paid off, the parents were to
transfer title to half of the property to the parties. The parties
made $45,000 in loan payments, and the loan was paid off in 2008.
The former wife then requested that her parents transfer title as
promised. However, the former wife’s father refused. No lawsuit
has been initiated to recover the payments or pursue title to the
property.

    The former husband claims the property is now worth
$240,000. At the dissolution hearing, the former husband stated
he would expect the property to be offset by any money owed to the
parents. The former wife objected to consideration of the property
as the trial court lacked jurisdiction to determine ownership
because her parents were not parties to the dissolution action and
were not called as witnesses. The former husband requested that
the trial court consider the property a marital asset and
contemplate its value for offset.

     The trial court entered a final judgment, finding justification
for an unequal division of the marital assets and liabilities based
on the length of the parties’ marriage and overall necessity to do
equity between the parties. The trial court noted the former wife
was receiving more of the assets regarding the parties’ vehicles
and further unequal division of the marital assets and debts in
consideration of her claims for alimony, fees, and expenses.

     Relevant to the issue on appeal, the trial court considered the
property in Ponce de Leon a marital asset and determined the
parties had an “equitable interest and a claim” in the property
against the parents. The trial court assessed a value of $45,000 to
the property and awarded the equity interest and claim on the
property to the former wife. The trial court noted the unequal
distribution of this asset was also made in consideration of the
former wife’s claim for alimony and payment of her attorney’s fees
and costs.

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     After discussion of the statutory factors and decision to
perform an unequal distribution of marital assets and liabilities,
the trial court awarded the former wife alimony and directed each
party to pay his or her own attorney’s fees and costs. The former
wife now appeals the trial court’s award to her of the equity
interest and claim to the Ponce de Leon property and that the
award also resulted in a reduction in her alimony and a denial of
payment of her attorney’s fees.

                                II. Analysis

     “Section 61.075(1), Florida Statutes, ‘requires that the trial
court distribute marital assets and liabilities between the parties
beginning with the premise that an equal distribution should
occur.’” Hardee v. Hardee, 929 So. 2d 714, 715-16 (Fla. 1st DCA
2006) (quoting Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA
2003)). The trial court “may make an unequal distribution of
assets, provided the court supplies a specific finding of fact to
justify its unequal distribution.” Id.; see also § 61.075(1), Fla. Stat.
But, the court should “ensure that neither spouse passes
automatically from misfortune to prosperity or from prosperity to
misfortune, and, in viewing the totality of the circumstances, one
spouse should not be ‘shortchanged.’” Canakaris v. Canakaris, 382
So. 2d 1197, 1204 (Fla. 1980). A trial court's equitable distribution
scheme will be upheld absent an abuse of discretion. Winder v.
Winder, 152 So. 3d 836, 838 (Fla. 1st DCA 2014).

     The former wife contends the distribution award is improper
because: (1) the Ponce de Leon property is not a marital asset; (2)
neither party filed a claim against her father, thus, the father was
never a party to the dissolution proceedings; and (3) as the parties
do not have legal title to the property, the equity interest and claim
in the property is an illusory asset. See Sandstrom v. Sandstrom,
617 So. 2d 327, 328 (Fla. 4th DCA 1993). We agree.

    In the final judgment, the trial court found:

    The Wife's father has refused to add the parties' names
    to the land title, despite the Wife's requests. While the
    parties do not have record legal title to the property, it
    appears that they do have an equitable interest and claim

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    in the property against the Wife's parents which can be
    enforced in equity, and which is a marital asset.

      The trial court erred in finding the Ponce de Leon property a
marital asset and that the parties had an equity interest and claim
to it. This award is illusory because the former wife has no right to
participate in the future appreciation and may never even receive
the property as the father, at least to date, has refused to transfer
title. ∗ See Hicks v. Hicks, 580 So. 2d 876, 878 (Fla. 2d DCA 1991);
Huttig v. Huttig, 530 So. 2d 1051 (Fla. 3d DCA 1988). It is, thus,
apparent that the trial court awarded the former wife an asset
“that was not in existence.” Hoirup, 862 So. 2d at 782.
Furthermore, the issue of property ownership or interest therein
was not properly before the trial court as the property owners, the
parents, were not parties to the litigation. See Couture v. Couture,
307 So. 2d 194, 194 (Fla. 3d DCA 1975). The trial court abused its
discretion in finding an equitable interest existed at the time of
dissolution, and there is no evidence it is likely to materialize in
the future.

     Nevertheless, we affirm the final judgment as it is otherwise
supported by evidence, and the final judgment contains sufficient
specificity to outline the trial court’s intent in the equitable
distribution scheme. See Maddox v. Maddox, 750 So. 2d 693 (Fla.
1st DCA 2000).

     At the final hearing, the former wife presented evidence
relating to her claim for permanent alimony. The two primary
elements to be considered in an award of permanent alimony are
the needs of the receiving spouse and the ability of the other spouse
to provide the funds. See Canakaris, 382 So. 2d at 1201-02. The
ability to pay alimony must be based on the party's net income.
Conlin v. Conlin, 212 So. 3d 487, 489 (Fla. 2d DCA 2017). Here,
the trial judge made detailed findings regarding the net income of
both parties. These findings are not challenged on appeal. The trial
judge found that the net incomes were similar and that the former


    ∗
      Former Wife argues there is no viable cause of action against
her father to force transfer of title pursuant to the statutes of fraud
and limitations. See § 95.11, Fla. Stat.

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husband did not have the ability to pay the former wife the
$1,500.00 per month alimony she was seeking. The trial judge
explained his calculation for awarding $500.00 per month in
permanent alimony. Based on the uncontested evidence in the
record, the former husband does not have the ability to pay the
former wife more in alimony or to pay her attorney’s fees,
regardless of whether the property at issue was considered.

     The uncontested findings of the trial court regarding the
income of the parties demonstrate that the Ponce de Leon property
did not affect the ultimate alimony award or the denial of
attorney’s fees. Accordingly, we find the trial court’s error
regarding the property harmless.

    AFFIRMED.

WETHERELL and BILBREY, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for
Appellant.

Thomas J. Schulte of Ausley McMullen, Tallahassee, for Appellee.




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