       Third District Court of Appeal
                               State of Florida

                        Opinion filed December 21, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-786
                         Lower Tribunal No. 13-20251
                             ________________


                               Charles Viscito,
                           Appellant/Cross-Appellee,

                                        vs.

                               Barbara Viscito,
                           Appellee/Cross-Appellant.


      An Appeal from the Circuit Court for Miami-Dade County, Spencer Eig and
Barbara Areces, Judges.

      Crabtree & Auslander and John G. Crabtree, Charles M. Auslander, George
R. Baise, Jr. and Brian C. Tackenberg, for appellant/cross-appellee.

      Richard A. Schurr; Christy L. Hertz and Katie Gill, for appellee/cross-
appellant.


Before SUAREZ, C.J., and LAGOA and SALTER, JJ.

     SALTER, J.
      Charles Viscito (“Former Husband”) appeals two aspects of an amended

final judgment of dissolution of his marriage to Barbara Viscito (“Former Wife”).

The Former Wife cross-appeals certain determinations within the amended final

judgment as well. Finding no error, we affirm the trial court’s amended final

judgment.

      Issues

      The Former Husband argues that the trial court’s computation of his share of

passive appreciation in a Key Biscayne condominium was inequitable. On cross-

appeal, the Former Wife argued that the trial court’s award of any such passive

appreciation was erroneous because an incorrect valuation date was used for the

condominium.     This argument, however, was withdrawn by the Former Wife

before the case was heard at oral argument. The Former Wife’s second argument

on cross-appeal addresses the Former Husband’s claim asserted here, but not

below, for some form of alimony other than permanent periodic alimony.

      Analysis

      The facts controlling the allocation of passive appreciation in the Key

Biscayne condominium, which served as the marital residence during the marriage,

were not in dispute. The Former Wife and her sister purchased the condominium

four years before the Former Wife married. The Former Husband and Former

Wife bought the Former Wife’s sister’s 50% ownership interest six years into the



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marriage. The condominium was titled exclusively in the name of the Former

Wife.    The condominium was refinanced twice during the marriage, in part

because the Former Husband had a secret gambling problem and his business

failed. These problems culminated in a Chapter 13 bankruptcy proceeding during

the marriage.

        The trial court found, based on competent and largely undisputed evidence,

that the fair market value of the condominium at the date of marriage was

$255,000.00, at which time the mortgage balance was $133,000.00. At the time of

trial, the fair market value of the condominium was $690,000.00, and the mortgage

balance was $224,448.00. However, only 50% of the passive appreciation during

the marriage was allocable to marital property; the other half-interest was non-

marital property. The court found that marital funds were used to pay the monthly

mortgage obligation during the marriage.

        The trial court computed the passive appreciation as specified in Kaaa v.

Kaaa, 58 So. 3d 870 (Fla. 2010), and section 61.075(6)(a)(1.b), Florida Statutes

(2015). The loan-to-value ratio computed at the time of the marriage (.522 in this

case) was multiplied by the current fair market value ($690,000.00), yielding the

amount of $360,180.00. The current mortgage amount, $224,448, was subtracted

from that amount, yielding a total passive appreciation figure of $135,732.00.




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Because only one-half of the condominium was marital property, the Former

Husband’s award of passive appreciation was half of the total, or $67,866.00.

      We reject the Former Husband’s argument that he should be awarded the

higher figure of $152,753.04, based on a computation allowing him one-half of all

appreciation on the Former Wife’s 50% interest in the condominium

($116,388.00), plus an additional $27,477.04 as his share of passive appreciation

on the Former Wife’s half of that 50% interest, plus another $8,888.00 in mortgage

payments from marital funds that allegedly reduced the mortgage debt on the non-

marital interest in the condominium.      That computation does not follow the

algorithm detailed in Kaaa, which adjusts the allocation by accounting for the loan-

to-value ratio of the property at the time of the marriage, reducing the total

appreciation accordingly, and the trial court did not find support for the mortgage

payments claimed to have benefitted the non-marital property.

      The Former Husband’s second issue is directed to the denial of his request

for permanent periodic alimony. He argues that the marriage of 21 years, his

unemployment since 2001 (and status as a stay-at-home father for 12 years of the

marriage), and the Former Wife’s income required such an award or some other

form of alimony.     The trial court did not abuse its discretion on this point,

however, as there was competent evidence that (a) the Former Husband was

employable but voluntarily remained unemployed, and (b) the Former Husband’s



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gambling debts and misapplications of marital funds adversely affected the

family’s financial position and lifestyle. See section 61.08(2), Florida Statutes

(2015).

      On cross-appeal, the Former Wife also argues that the Former Husband is

confined by his pleadings to a claim for permanent periodic alimony, i.e., that he

may not now claim some other form of alimony as specific relief that was not

prayed for in any of his pleadings or by amendment at trial.        Hernandez v.

Hernandez, 444 So. 2d 35 (Fla. 3d DCA 1983). The Former Wife’s position is

well taken on this point as well.

      The Amended Final Judgment of Dissolution of Marriage is affirmed in all

respects.




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