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

NANCY SMITH SCHROLL,                  NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant/Cross-Appellee,       DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D16-3590

STEPHEN B. SCHROLL,

      Appellee/Cross-Appellant.


_____________________________/

Opinion filed October 6, 2017.

An appeal and cross-appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

Laura E. Keene of Beroset & Keene, Pensacola, for Appellant/Cross-Appellee.

Therese A. Felth of McKenzie Law Firm, P.A., Pensacola, for Appellee/Cross-
Appellant.




PER CURIAM.

      This appeal and cross appeal are taken from a final judgment of dissolution of

marriage. The former wife, Nancy Smith Schroll, challenges the trial court’s failure

to award her sufficient permanent periodic alimony and attorney’s fees and costs.

The former husband, Stephen B. Schroll, attacks the trial court’s valuation and
distribution of marital assets and liabilities. For the reasons that follow, we reverse

in part and remand for further proceedings. In all other respects, the judgment is

affirmed.

                                I.     Relevant Facts

      After thirty-two years of marriage, Ms. Schroll petitioned for dissolution of

the parties’ marriage. The primary issues before the trial court were equitable

distribution of the marital assets and liabilities, alimony, and attorney’s fees and

costs. At the time of the dissolution of marriage, the parties had acquired slightly

more than $2,000,000 in assets from profits generated by their business, Storkland,

a retail store specializing in the sale of baby items. The parties’ assets consisted of

the commercial building housing Storkland, the inventory of Storkland, multiple

retirement and investment accounts, and various personalty.

      Mr. Schroll was responsible for managing Storkland while Ms. Schroll would

assist as a sales clerk. Mr. Schroll claimed that Storkland’s sales had been steadily

decreasing since 2012 due to competition from large chain stores and online

retailers. He testified that during the pendency of the dissolution action, he used

marital funds to pay for his and Ms. Schroll’s living expenses, the cost of both

parties’ relocation, both parties’ temporary attorneys’ fees, new vehicles for both

parties, and paying off the mortgage on the marital home before it was sold. He




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further testified that he gave significant funds to one mutual daughter for her

wedding and another mutual daughter for her purchase of a house.

         The trial court entered a final judgment dissolving the parties’ marriage and

setting forth the distribution of the parties’ assets. The court adopted Ms. Schroll’s

proposed equitable distribution schedule, which valued the marital assets as of the

date of filing. Ms. Schroll was awarded assets purportedly totaling $1,222,120, and

Mr. Schroll was awarded assets worth $1,274,752. The parties’ marital liabilities

were valued at $22,147 and attributed to Mr. Schroll. According to the equitable

distribution schedule adopted by the court and incorporated into the final judgment,

the parties were each awarded $1,210,015 in assets.

         The court further found that there was no dissipation or waste of marital assets

by Mr. Schroll. The court noted that Ms. Schroll was awarded over $1,000,000 in

assets     in   the   equitable    distribution   and    concluded,    “Although     the

Respondent/Husband may have the ability to pay alimony, the Court does not

believe the Petitioner/Wife has a need for the same and denies the Petitioner/Wife’s

request for alimony.” The court ordered both parties to pay their own attorneys’ fees

and costs.

         Both parties moved for rehearing, raising each of the issues addressed in this

opinion. The trial court subsequently entered an “Amendment to Final Judgment of

Dissolution of Marriage,” ordering Mr. Schroll to pay nominal permanent alimony

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of $1.00 per month and vacating the equitable distribution schedule previously

incorporated into the final judgment because it contained “mathematical errors.” The

court stated that all other provisions in the final judgment were to remain in full force

and effect. The court adopted a new attached equitable distribution schedule, which

indicated Ms. Schroll was awarded assets worth $1,231,633.50 and Mr. Schroll was

awarded assets worth $1,253,780.50. The marital liabilities of $22,147 were again

attributed to Mr. Schroll, which resulted in both parties being awarded

$1,231,633.50 in assets. This appeal and cross-appeal follow.

                             II.   Equitable Distribution

      We first turn to the challenges to the trial court’s equitable distribution

scheme. A court's rulings on equitable distribution are reviewed for abuse of

discretion. Boutwell v. Adams, 920 So. 2d 151, 153 (Fla. 1st DCA 2006). When

distributing the marital assets and liabilities between parties, courts must begin with

the premise that the distribution should be equal, unless there is a justification for an

unequal distribution based on all relevant factors, including the factors set forth in

section 61.075(1)(a)-(j), Florida Statutes (2016). See Watson v. Watson, 124 So. 3d

340, 342-43 (Fla. 1st DCA 2013). The date for determining the value of marital

assets and the amount of marital liabilities is the date or dates as the court determines

is “just and equitable under the circumstances.” § 61.075(7), Fla. Stat. (2016).




                                           4
Should it be necessary for the court to craft an unequal distribution, it must include

findings to substantiate the disparity. Watson, 124 So. 3d at 342.

                    A.     Valuation of Money Market Accounts

      Mr. Schroll argues the trial court erred when it valued the parties’ BBVA

money market account and Vanguard brokerage account as of the filing date of the

petition for dissolution, as those funds had been depleted for marital purposes from

the date of filing, and there was no finding of intentional waste or dissipation of

those assets by Mr. Schroll during the divorce proceedings. Based on the record

before us, we agree.

      This Court has previously held that “[s]ums 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.” Ballard v. Ballard, 158 So. 3d 641, 642-43 (Fla. 1st DCA

2014) (citing Zvida v. Zvida, 103 So. 3d 1052 (Fla. 4th DCA 2013)); see also Winder

v. Winder, 152 So. 3d 836, 838 (Fla. 1st DCA 2014) (trial court abused its discretion

by including dissipated funds in the equitable distribution scheme where “[t]he

uncontradicted evidence shows that the dissipated funds were used to pay marital

expenses while the dissolution was pending, including temporary support for the

Wife”). To include dissipated assets in an equitable distribution scheme, the court

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must make a “specific finding that the dissipation resulted from intentional

misconduct.” Bateh v. Bateh, 98 So. 3d 750, 753 (Fla. 1st DCA 2012); see also

Ballard, 158 So. 3d at 643; Walker v. Walker, 85 So. 3d 553, 555 (Fla. 1st DCA

2012).

      Here, the unrefuted evidence shows that during the course of the dissolution

proceedings below, Mr. Shroll used funds from the parties’ BBVA money market

account and the Vanguard brokerage account to pay for the parties’ living expenses,

including attorneys’ fees and costs, new vehicles for both parties, moving expenses,

and paying off the mortgage on the former marital residence before it sold. By the

time of the final hearing, the funds in the BBVA account had been exhausted. The

Vanguard account had been reduced from $451,146, as of the date of filing, to

$381,220, around the time of the final hearing. Yet, the court valued these accounts

as of the date the petition for dissolution was filed. Because the court did not find

any misconduct by Mr. Schroll in the dissipation of these two assets, it was an abuse

of discretion to value these accounts as of the date of filing. On remand, the court

should revisit the equitable distribution scheme and exclude the funds dissipated for

marital purposes.

                      B.    Valuation of Investment Accounts

      Mr. Schroll further argues that the trial court reversibly erred when it valued




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certain investment assets 1 as of the date of commencement of the dissolution action

instead of a date closer to the final hearing because those assets had significantly

declined in value during the course of litigation due to passive market forces, outside

of the control of either party. While the court has the discretion to decide the

valuation date of marital assets as the court determines is “just and equitable under

the circumstances,” without an explanation as to why the court valued these assets

as of the date of filing, we are not able to determine from this record whether the

court considered the decrease in value of these assets in fashioning the equitable

distribution. See Byers v. Byers, 910 So. 2d 336 (Fla. 4th DCA 2005) (trial court

abused its discretion in allocating parties’ assets without accounting for passive

appreciation of 401(k) account where court gave no explanation as to why it settled

on date of filing as valuation date). On remand, the court should address the propriety

of the valuation date of these investment assets and account for the passive changes

in value in fashioning an equitable distribution award.

                  C.     Valuation/Distribution of Business Assets

      Mr. Schroll additionally alleges that the trial court abused its discretion when

it awarded him the value of Storkland’s inventory and the Storkland business

account in the absence of evidence regarding Storkland’s fair market value. In so



1
  These assets include the Prudential Annuity #8841, the Stifel/Protective Life
#7663, Stifel /Transamerica IRA #8706, and the Stifel/Transamerica IRA #8763.
                                       7
doing, Mr. Schroll contends that the court completely ignored the costs of doing

business and debts belonging to Storkland. We agree to the extent that the trial court

should have included Storkland’s accounts payable as a marital liability as part of

the equitable distribution. But we assign no fault to the court for failing to take into

account the fair market value of the Storkland business in constructing the equitable

distribution scheme when neither party squarely presented evidence regarding that

issue to the court. See Simmons v. Simmons, 979 So. 2d 1063, 1066 (Fla. 1st DCA

2008) (Benton, J., dissenting) (“I agree with the majority opinion that a party who

adduces no proof as to the value of property should not be heard on appeal to

complain about the final judgment's failure to pluck a value out of thin air to assign

to the property.”). The court should revisit this issue on remand and revise the

equitable distribution accordingly.

                                      III.   Alimony

      Turning to Ms. Schroll’s arguments on appeal, she first contends that the trial

court abused its discretion in refusing to award her more than a nominal permanent

alimony award and in not adequately addressing the presumption favoring the award

of permanent periodic alimony in relation to the parties’ long-term marriage.

      In determining whether to award alimony, the trial court must make specific

factual determinations with regard to the needs of the spouse requesting alimony and

the ability of the other spouse to provide the necessary funds. § 61.08(2), Fla. Stat.

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(2016); Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980). If the court finds

that one spouse has an actual need for alimony and the other spouse has the ability

to pay, the court must then consider “all relevant factors,” including those listed in

section 61.08(2), in determining the proper type and amount of alimony. Permanent

alimony is designed to provide for the needs and necessities of life for a former

spouse as they were established during the marriage. § 61.08(8), Fla. Stat. (2016).

      In Broemer v. Broemer, 109 So. 3d 284 (Fla. 1st DCA 2013), this Court

recognized that there is a rebuttable presumption of entitlement to permanent

periodic alimony in marriages of longer than seventeen years and found that the trial

court “failed to address the initial rebuttable presumption or explain why it does not

apply in this case.” Id. at 290. We concluded that remand was necessary because the

lack of required findings of fact prevented us from reviewing the alimony issue in a

meaningful way. Id. at 289.

      As to the propriety of awarding nominal permanent periodic alimony, this

Court has instructed, “should the trial court find it is faced with a situation where the

Wife has a clear need for permanent alimony, but it is established that the Husband

does not have the current ability to pay . . . a nominal award of permanent alimony

would preserve the trial court's jurisdiction to revisit this matter, until there is a

substantial change in the parties’ respective financial circumstances.” Winder, 152

So. 3d at 841-42 (citations omitted).

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      Here, the trial court awarded Ms. Schroll nearly $600,000 in liquid assets and

approximately $600,000 worth of retirement investments. On this basis, the court

concluded in the final judgment that Ms. Schroll had no need for alimony. The

court’s subsequent award of nominal permanent periodic alimony to Ms. Schroll in

the amendment to the final judgment, without any additional findings, appears

inconsistent with its earlier conclusion that she had no need for alimony and fails to

address Mr. Schroll’s ability – or lack thereof – to pay.

      On remand, the trial court should revisit the issue of alimony and assess Ms.

Schroll’s potential need for permanent alimony as this Court instructed in Broemer,

109 So. 3d at 290, in light of any substantial alteration of the parties’ financial

positions upon the recalculation of the equitable distribution of assets and liabilities

based on this opinion. Additionally, the court should make explicit findings

regarding the Ms. Schroll’s need and Mr. Schroll’s ability to pay, and if the court

determines that an award of alimony is proper, it should consider all relevant factors,

including those set forth in section 61.08(2), when determining the proper type and

amount of the award.

                                IV.    Attorney’s Fees

      Ms. Schroll next contends that the trial court abused its discretion in failing to

award her attorney’s fees. The issue of whether Ms. Schroll is entitled to attorney’s

fees and costs hinges upon the reallocation of the equitable distribution and whether

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she is awarded permanent periodic alimony on remand. Thus, the trial court should

revisit the issue of Ms. Schroll’s potential entitlement to attorney’s fees pursuant to

section 61.16(1), Florida Statutes, based on the extent to which the parties’

respective financial circumstances are altered on remand.

      AFFIRMED in part; REVERSED and REMANDED in part.

WOLF, RAY, and BILBREY, JJ., CONCUR.




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