         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-5223
                 _____________________________

DARLENE S. HORTON, Former
Wife,

    Appellant/Cross-Appellee,

    v.

JOHN D. HORTON, Former
Husband,

    Appellee/Cross-Appellant.
                _____________________________


On appeal from the Circuit Court for Escambia County.
Jennie Kinsey, Judge.

                        November 6, 2018


PER CURIAM.

     Approaching three years after John Horton (the husband)
filed a petition for dissolution against Darlene Horton (the wife),
final judgment was entered. The wife appealed as to the
timesharing schedule implemented as to the parties’ adopted son.
The husband cross-appealed, asserting several errors concerning
distribution of assets and alimony. We address all issues
requiring discussion, and find several that compel reversal. 1

    1 We affirm as to the husband’s argument that the trial court
erred by failing to make factual findings supporting the award of
attorney’s fees because his motion for rehearing failed to raise
                     I. Timesharing Schedule

     A significant portion of the testimony related to the
relationship between the parties’ and their son, and what kind of
timesharing schedule would be in his best interests. All evidence
indicated an extremely strong bond between the wife and son,
and a strained relationship between the husband and son. During
the years of contentious litigation, the parties continued to live in
the same house and the husband’s relationship with the son
deteriorated significantly. No evidence showed improper behavior
by the husband, and all indications were that this deterioration
was due to the animosity between the parties, uncomfortable
living situation, and strong bond between the wife and son. The
husband requested 50/50 timesharing; the wife wanted more.

     The trial court believed that the son should repair his
relationship with the husband, which could occur with counseling
and a graduated timesharing schedule. A three-step schedule was
found to be appropriate, beginning with the son spending
approximately one to three days per week with the husband, and
concluding, after one year, with the parties rotating timesharing
on a weekly basis.

     The wife argues that this graduated plan is not based on the
son’s current best interests, but is impermissibly prospective. In
Preudhomme v. Preudhomme, 245 So. 3d 989, 989-90 (Fla. 1st
DCA 2018), the trial court ordered the parties to continue their
weekly timesharing rotation for twenty months, at which time
the father would attain majority timesharing so the child could
begin kindergarten. We concluded that this prospective-based
approach to timesharing was prohibited, and the best interests of
the child must be determined in the present. Id. at 990. Because
the trial court did not discuss the son’s current best interests, see
section 61.13(3), Florida Statutes, it is unclear whether or not it
would have found the first phase of the schedule to be in his best
interests. Therefore, we reverse the timesharing schedule in sum.



this argument. See Burkett v. Burkett, 155 So. 3d 478 (Fla. 1st
DCA 2015).

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                     II. Benefits and Income

     The husband and wife agreed that the wife receives monthly
income of approximately $937 from social security for being a
non-working spouse, $937 from social security for having a minor
child, and $350 from the state of Florida for having an adopted
child. The parties did not agree as to which payments would be
divided or how. The final judgment ordered that, beginning at the
point when timesharing would be evenly split between the two
parties, social security and adoption monies would also be evenly
split. As we reversed the timesharing plan, we likewise reverse
this provision premised on that plan.

                     III. 401(k) Distribution

     The husband’s 401(k) plan was worth approximately
$252,800 at the time of the petition for dissolution, but at the
time of trial was worth under $201,400. The husband argued that
this marital asset should be divided based on its worth as of the
time of the trial, while the wife found the date of the petition to
be the applicable date. At trial, the trial court correctly found
that the plan’s worth as of the date of the trial controlled based
on the uncontroverted evidence that the husband used all of the
funds that had been distributed to pay all of the household bills,
as well as to otherwise support the wife and son. See Ballard v.
Ballard, 158 So. 3d 641, 642–43 (Fla. 1st DCA 2014) (“Sums that
have been diminished during dissolution proceedings for
purposes reasonably related to the marriage . . . should not be
included in an equitable distribution scheme unless there is
evidence that one spouse intentionally dissipated the asset for his
or her own benefit and for a purpose unrelated to the marriage.”).

     Seven months after the trial, the parties’ attorneys
reconvened to discuss a proposed final judgment. The husband’s
counsel asserted that the 401(k) plan was still being used to
support the household, and the $201,400 figure should be further
adjusted downward; the wife objected to any adjustments. The
final judgment, entered approximately two months after this
hearing, valued the plan at its worth near $201,400 at the time of
the trial.


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     The husband argues that dividing the plan based on its
worth at the time of trial is inequitable because the funds were
continuously used to support the household post-trial. The trial
court must determine a valuation for marital assets that is just
and equitable, and this determination is reviewed for abuse of
discretion. See Schroll v. Schroll, 227 So. 3d 232, 235 (Fla. 1st
DCA 2017); Leonardis v. Leonardis, 30 So. 3d 568, 571 (Fla. 4th
DCA 2010). The husband relies on Leonardis, where the trial
court valued the marital house as of the date of the filing of the
petition, declined to take into account the decline in property
value at the time of the hearing, and used this figure as the
anticipated sale price, although the house did not need to be sold
until the youngest of the parties’ three children reached the age
of eighteen. 30 So. 3d at 570. Reliance on Leonardis is mistaken
for two reasons: 1) here, the asset was valued at the time of the
final hearing rather than the filing of the petition, and 2) the
401(k) plan has an identifiable value capable of division, and does
not involve speculation. The husband has not shown that the
trial court was required to amend the evidence post-trial, and we
do not find that the trial court abused its discretion. 2

                           IV. Alimony

    The wife requested sixteen years of durational alimony based
on her age, standard of living, health issues, and limited assets.
The husband argued that the wife should not be awarded
alimony because he and his wife would receive comparable
incomes following division of the 401(k) plan. The final judgment

    2   We note the lengthy delay between trial and final
judgment, and the potential consequences of such a delay. See
McGoldrick v. McGoldrick, 940 So. 2d 1275, 1276 (Fla. 2d DCA
2006) (reversing due to the eight-month delay and numerous
errors); McCartney v. McCartney, 725 So. 2d 1201, 1202 (Fla. 2d
DCA 1999) (finding the delays “unacceptable” but denying
reversal on this basis). We do not find that the delay here
requires reversal because the parties did not address who or what
caused it, the wife objected to the argument that the plan should
be adjusted, and the husband did not move to admit new
evidence.

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awarded $1,000 of alimony monthly for sixteen years, noting that
the trial court had “considered section 61.08, Florida Statutes, in
determining whether an alimony award was appropriate,” and
considered the length of the marriage and age of the parties.

     In determining whether to award alimony, the trial court
must “make a specific factual determination as to whether either
party has an actual need for alimony or maintenance and
whether either party has the ability to pay alimony or
maintenance,” and, if an award is appropriate, must consider
several factors to determine the proper type and amount.
§ 61.08(2), Fla. Stat. Failure to do so “precludes meaningful
appellate review.” Abbott v. Abbott, 187 So. 3d 326, 328 (Fla. 1st
DCA 2016). The husband argues, and the wife concedes, that the
alimony award does not include sufficient factual findings. We
agree and, because this issue was preserved in a motion for
rehearing, reverse the award of alimony.

                           V. Conclusion

     We AFFIRM the division of the 401(k) plan and award of
attorney’s fees; REVERSE the timesharing schedule, division of
social security and benefit funds, and alimony award; and
REMAND for proceedings consistent with this opinion.

WINOKUR and JAY, JJ., concur; BILBREY, J., concurs with opinion.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

BILBREY, J., concurring.

     I join in the majority opinion and write only to address the
timesharing issue in the parenting plan.           The graduated,
stepped-up timesharing schedule was a reasonable attempt by
the circuit judge to restore the strained relationship between the


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father and son. 3 Unfortunately, this reasonable approach to
restoring the relationship was precluded by the cases which
interpret section 61.13, Florida Statutes. Courts have repeatedly
held that the “best interest of the child” is a present, not
prospective, determination. See Arthur v. Arthur, 54 So. 3d 454
(Fla. 2010); Preudhomme v. Preudhomme, 245 So. 3d 989 (Fla.
1st DCA 2018); Horn v. Horn, 225 So. 3d 292 (Fla. 1st DCA 2017);
Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993);
Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990).

     I recognize that “a trial court is not equipped with a ‘crystal
ball’ that enables it to prophetically determine whether future”
changes are in the best interest of the child. Arthur, 54 So. 3d at
459. But many of the decisions circuit judges have to make in
family law cases do not involve scrying, augury, or anything
ending with the suffix mancy. Rather these decisions involve
reasonable,    evidence-based      anticipation    or   prospective
determination of likely future events.

     For instance, in awarding bridge-the-gap alimony the circuit
judge is anticipating what support will be necessary “to allow the
party to make a transition from being married to being single.”
§ 61.08(5), Fla. Stat. In awarding rehabilitative alimony, a
circuit judge is anticipating the development of future skills
necessary for the former spouse receiving that alimony to
establish “the capacity for self-support.” § 61.08(6)(a), Fla. Stat.

     Even some of the numerous factors a circuit judge must
consider in “establishing or modifying parental responsibility and
creating, developing, approving, or modifying a parenting plan,
including a time-sharing schedule” require a prospective
determination. § 61.13(3), Fla. Stat. “The anticipated division of
parental responsibilities after the litigation” clearly requires a
prospective determination. § 61.13(3)(b). The “desirability of

    3 The minor child was apparently aware of being adopted.
According to the attorney guardian ad litem’s testimony, the
father and son had a grandparent/grandchild relationship. The
stepped-up timesharing was meant to strengthen the relationship
and facilitate the development of a parent/child relationship.

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maintaining continuity” of the child’s current environment is a
prospective determination. § 61.13(3)(d). And for many factors,
the “demonstrated capacity” of a parent presupposes a
“disposition” in the future to continue acting in accordance with
past behaviors. § 61.13(3)(a), (c), (j), (k), (p), (q), (r) & (s).

     Here, the circuit judge reasonably anticipated that the
graduated time-sharing plan she put in place would help build
the relationship. But even when future events are almost sure to
occur, our case law based on Florida Supreme Court precedent
prohibits a prospective determination. See Preudhomme, 245 So.
3d at 990 (relying on Arthur, among other cases, in holding that a
timesharing schedule which set forth what was to happen when
the child started kindergarten in 20 months was impermissible).

     The end result of the prohibition on any prospective
determination of parenting is that in many cases the parties end
up back in court seeking to modify the parenting plan or time-
sharing. See § 61.13(2)(c) & (3). Since the parenting and time-
sharing impacts the amount of child support, financial
information has to again be disclosed. See 61.30(11)(b), Fla. Stat;
Florida Family Law Form 12.905(a). As was shown here,
crowded court dockets, discovery, and counsels’ schedule means
that family law litigation can take many months or years.

     Furthermore, the burden imposed on the parent moving for
modification is high. The “modification of a parenting plan and
time-sharing schedule requires a showing of a substantial,
material, and unanticipated change of circumstances.”
§ 61.13(2)(c); see also § 61.13(3). This potentially puts the party
seeking modification in a situation without a remedy. Is it
unanticipated here that the father will strengthen his parental
bonds and want more time-sharing with his child? Was it
unanticipated in Preudhomme that the parents’ and child’s
schedule would need to be adjusted upon the child starting
kindergarten?

     The Legislature requires a circuit judge determining
parental responsibility and time-sharing to reasonably consider
numerous likely future events. Barring a tragedy, all children
will continue to age and develop. But under the current case law

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a circuit judge cannot consider a future event that is very likely
to occur. Perhaps the Legislature should consider allowing
reasonable, limited, prospective modifications to be included in
determining parental responsibility and time-sharing so that a
party and the court are spared modification for such an event.

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Jill W. Warren, Pensacola, for Appellant/Cross-Appellee.

James M. Burns of the Law Offices of James M. Burns, P.A.,
Pensacola, for Appellee/Cross-Appellant.




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