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

JOHN   THOMAS   GOTRO,                 NOT FINAL UNTIL TIME EXPIRES TO
FORMER HUSBAND,                        FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,

v.                                     CASE NO. 1D16-1863

CATHERINE      SUZANNE
GOTRO, FORMER WIFE,

      Appellee.


_____________________________/

Opinion filed May 5, 2017.

An appeal from the Circuit Court for Alachua County.
Victor L. Hulslander, Judge.

Brian P. North of Kenny Leigh & Associates, Pensacola, for Appellant.

Anderson E. Hatfield, Gainesville, for Appellee.




PER CURIAM.

      In this appeal from a final judgment of dissolution of marriage, the former

husband raises four issues: (I) the trial court abused its discretion when it awarded

$2,500 in permanent alimony to the former wife; (II) the trial court abused its
discretion in creating equitable distribution; (III) the trial court abused its discretion

when it ordered the former husband to pay all of the former wife’s attorney’s fees

and costs; and (IV) the trial court abused its discretion when it ordered the former

husband to maintain life insurance on the alimony award. Our reversal of the

equitable distribution scheme necessitates reversal on Issues I and III as well. We

also reverse Issue IV and remand for further proceedings consistent with this

opinion.

      The parties were married for approximately thirty-nine years and share four

children, none of whom were dependent at the time of dissolution. It was undisputed

that the former husband was the bread-winner and had a substantially larger earning

potential than the former wife. The former husband had several bank accounts, most

of which were properly considered to be marital assets by the trial court. Of

particular significance were two BBVA Compass Bank accounts. The former wife

submitted evidence that the combined balance of the two BBVA accounts was

$8,345.00 at the time the petition for dissolution was filed in May 2015. However,

at the final hearing, the former husband provided unrebutted testimony that the

combined value of the two BBVA accounts had been significantly reduced to

$2,432.00. He further testified that these two accounts had been used for his living

expenses and to pay bills associated with the marital home. The former husband

asked the trial court to use the balance of the accounts at the date of the final hearing

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as opposed to the date of filing. The trial court denied the request and used the

balances of the accounts at the time of filing, initially dividing the $8,345 combined

value of the two accounts equally between the parties.           The trial court later

redistributed the value assigned because the former wife was to forgo receipt of her

cash-out share from the two BBVA accounts ($4,172.50) along with her cash-out

from two other assets. This led to the trial court assigning an equalizer payment to

the former wife in the amount of $8,612.99. The former husband argues the trial

court abused its discretion by including the value of the depleted BBVA accounts,

which resulted in a disparate equalizer payment being assigned in favor of the former

wife.

        In equitable distribution under section 61.075(7), Florida Statutes (2015), the

trial court may select a valuation date of the marital asset that the court determines

in its discretion to be “just and equitable under the circumstances.” Different assets

may be valued as of different dates in the trial court’s discretion. § 61.075(7), Fla.

Stat. (2015). However, “[a]s a general proposition, it is error to include assets in an

equitable distribution scheme that have been diminished or dissipated during the

dissolution proceedings.” Winder v. Winder, 152 So. 3d 836, 838 (Fla. 1st DCA

2014) (quoting Roth v. Roth, 973 So. 2d 580, 584 (Fla. 2d DCA 2008)). The

exception is when a parties’ misconduct during the proceedings results in dissipation

of the asset, which misconduct may serve as a basis for assigning the asset to the

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spending spouse.    Winder, 152 So. 3d at 838.       However, assignment due to

dissipation must be based on the trial court’s “specific finding of intentional

misconduct based on evidence showing that the marital funds were used for one

party’s ‘own benefit and for a purpose unrelated to the marriage at a time when the

marriage is undergoing an irreconcilable breakdown.’” Id. (quoting Walker v.

Walker, 85 So. 3d 553, 555 (Fla. 1st DCA 2012)).

      The former wife lodged general allegations of misconduct, but they were not

directly related to the funds in the two BBVA accounts. More importantly, the trial

court made no findings of misconduct. The former husband’s undisputed testimony

was that these two accounts were used for his living expenses and to pay bills

associated with the home. The former husband was also paying the former wife

temporary alimony and temporary attorney’s fees as well as a majority of the marital

expenses during the pendency of the proceedings. There was no evidence of

misconduct other than generalized allegations, and the undisputed testimony showed

the money was diminished to pay at least some marital expenses during the

proceedings.   We agree with the former husband that, absent a finding of

misconduct, it was error to utilize the value of these two BBVA accounts before

dissipation. We reverse the equitable distribution portion of the final order and

remand for further proceedings. Because the error in equitable distribution of the




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two BBVA accounts was integral to the calculation of the equalizer payment, that

portion of the final order is also reversed and remanded.

      The former husband also argues that the trial court erred in awarding the

former wife $2,500 in permanent alimony. As to the trial court’s decision to award

permanent alimony, the parties’ thirty-nine year marriage was of such a duration that

the former wife was entitled to an initial rebuttable presumption favoring permanent

alimony.    See § 61.08, Fla. Stat. (2015) (a long-term marriage entitled to the

rebuttable presumption is defined as a marriage having a duration of seventeen years

or longer). The trial court’s order determined that the former wife had a need for

$2,500 per month in alimony and carefully considered all of the factors in section

61.08(2)(a)-(i), Florida Statutes (2015). Factors weighing in favor of the former

wife’s need were the parties’ high middle-class standard of living during the

marriage and the former wife’s inability, due to age, health, and education, to support

herself in a fashion consistent with her previous standard of living. After the divorce,

the former wife would also have to pay her living expenses and secure health

insurance as the former husband had paid the majority of expenses during the

marriage. In determining the former husband’s ability to pay, the trial court found

his income was approximately 3.67 times greater than the former wife’s earned

income. The trial court’s finding that the former husband had the ability to pay

permanent alimony was also supported by the record. We find no error in the trial

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court’s decision to award permanent alimony to the former wife. See Broemer v.

Broemer, 109 So. 3d 284, 289 (Fla. 1st DCA 2013) (“An appellate court will not

disturb an alimony award where competent substantial evidence supports the award

and the trial court complies with the governing law.”). However, because we are

reversing and remanding the equitable distribution portion of the final order, the

alimony award is also remanded for recalculation. See Watson v. Watson, 124 So.

3d 340, 343 (Fla. 1st DCA 2013) (finding that the reversal and remand of the

equitable distribution portion necessitated remand of the alimony award). We also

remand the trial court’s award of attorney’s fees in Issue III as the fee award is

impacted by the reversal of the equitable distribution award as well. See Nolan v.

Nolan, 188 So. 3d 977, 978 (Fla. 1st DCA 2016) (reversal of equitable distribution

scheme necessitated reversal and remand of alimony and attorney’s fees portions of

the final judgment as well).

      Finally, in Issue IV, the former husband argues that the trial court erred in

ordering him to maintain a $100,000 life insurance policy to secure the alimony

award. The trial court had the authority to require the former husband to maintain a

life insurance policy with the former wife as beneficiary in order to secure the

alimony payment. See § 61.08(3), Fla. Stat. (2015); Therriault v. Therriault, 102 So.

3d 711, 713 (Fla. 1st DCA 2012). In Therriault, this Court held that, in so requiring,

the trial court “must make specific evidentiary findings as to the availability and cost

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of insurance, the [former husband’s] ability to pay, and the special circumstances

that warrant such security.” Id. (quoting Kotlarz v. Kotlarz, 21 So. 3d 892, 893 (Fla.

1st DCA 2009)). Special circumstances that warrant this security include, among

other things: a spouse left in “dire financial straits” after the obligor spouse’s death,

a supported spouse with limited earning capacity, an obligor spouse in arrears on

support obligations, and cases where the obligor spouse agreed on the record to

secure an award with a life insurance policy. Therriault, 102 So. 3d at 713-14. The

amount of insurance must also be related to the extent of the obligation being

secured. Id. Although the life insurance policy was preexisting and there was

testimony that it cost the former husband approximately $213 per month, the trial

court failed to make any specific evidentiary findings as to the former husband’s

ability to pay and the special circumstances that warranted such security. While

there may be a basis in the record for such a finding, on remand, the trial court should

include the required specific findings to require the security.

      REVERSED and REMANDED.

ROBERTS, C.J., ROWE and WINOKUR, JJ., CONCUR.




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