               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                               IN THE DISTRICT COURT OF APPEAL

                                               OF FLORIDA

                                               SECOND DISTRICT



ROBERTA L. DRAVIS,                             )
                                               )
              Appellant,                       )
                                               )
v.                                             )             Case No. 2D13-5513
                                               )
DEAN AUGUST DRAVIS,                            )
                                               )
              Appellee.                        )
                                               )

Opinion filed July 15, 2015.

Appeal from the Circuit Court for
Polk County; Keith Spoto, Judge.

Jean Marie Henne of Jean M. Henne,
P.A, Winter Haven, for Appellant.

Shelley Harrell Shelton of Hall, Bennett,
& Shelton, Winter Haven, for Appellee.


SALARIO, Judge.

              The former wife appeals a final judgment of dissolution of marriage. She

asserts that the trial court erred by (1) finding that $78,000 of cash gifts that she

received from her mother were marital assets subject to equitable distribution; (2)

including in its equitable distribution computation the proceeds of a bank account that

were dissipated by the former wife after the parties' separation; (3) double-counting as
marital assets the proceeds of a closed bank account that, before the parties'

separation, were moved to a new bank account, the proceeds of which were also

determined to be marital assets; and (4) failing to award retroactive alimony. For the

reasons set forth in this opinion, we find no error with those portions of the final

judgment related to the cash gifts and retroactive alimony, but we must reverse the final

judgment and remand for further proceedings on the equitable distribution of the parties'

marital assets. In all other respects, including the alimony award, we affirm the final

judgment.

                                      The Cash Gifts

              The parties were married in January 1990. During the marriage, the

former wife received cash gifts from her mother for birthdays and at Christmas. At the

time the parties separated those gifts totaled $78,000. That sum was kept in a

passbook savings account at CenterState Bank of Florida, together with other proceeds

received during the marriage that no one disputes were marital assets. At the time the

parties separated that account had a balance of $121,196.

              The CenterState account was opened in 2009 and was titled jointly in the

names of both the former husband and the former wife. In September 2010, the former

wife, who handled all of the marital finances, caused the account to be retitled in her

name alone, with the former husband listed solely as a party "payable on death." She

did not inform the former husband of this change. Marital funds continued to be

deposited into the account while it was titled in the former wife's name. In June 2011, a

few months prior to the parties' separation, the former wife had the former husband

removed from the account entirely without informing him. After the separation, the



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former wife transferred $78,000 from the account to an account titled in her mother's

name.

              The trial court found that all of the proceeds of the CenterState account,

including the proceeds representing gifts to the former wife from her mother, were

marital assets subject to equitable distribution under section 61.075, Florida Statutes

(2013). The former wife asserts that this was error because those gifts should have

been characterized as nonmarital assets that are not subject to equitable distribution.

We review a trial court's characterization of an asset as marital or nonmarital de novo

and any factual findings necessary to make this legal conclusion for competent,

substantial evidence. Tradler v. Tradler, 100 So. 3d 735, 738 (Fla. 2d DCA 2012).

              Although the former wife is correct that noninterspousal gifts like those

from her mother are treated as nonmarital assets, see § 61.075(6)(b)(2), that does not

end the inquiry. Nonmarital assets may lose their nonmarital character and become

marital assets where, as here, they have been commingled with marital assets.

Abdnour v. Abdnour, 19 So. 3d 357, 364 (Fla. 2d DCA 2009). This is especially true

with respect to money because "[m]oney is fungible, and once commingled it loses its

separate character." Pfrengle v. Pfrengle, 976 So. 2d 1134, 1136 (Fla. 2d DCA 2008);

see also Belmont v. Belmont, 761 So. 2d 406, 408 (Fla. 2d DCA 2000) ("Money loses its

nonmarital character when it is commingled with marital money. . . .").

              That principle resolves the matter from a legal perspective. The record

evidence supports the trial court's factual finding that the proceeds of the gifts were

commingled with proceeds that were marital assets, and the former wife does not

dispute that finding here. Competent, substantial evidence therefore demonstrates that



                                            -3-
the gifts lost their nonmarital character and, as a matter of law, they became marital

assets subject to equitable distribution. See, e.g., Abdnour, 19 So. 3d at 364 ("Any

assets that previously might have been said to have any nonmarital character were

dissolved into the commingled cash account."); Pfrengle, 976 So. 2d at 1136 ("When

Pfrengle commingled marital and nonmarital funds in his personal account, all the funds

in that account lost their separate nonmarital character."); Struble v. Struble, 787 So. 2d

48, 50 (Fla. 2d DCA 2001) ("Once the sales proceeds were deposited into the joint

account, their nonmarital character was lost.").

              The former wife also testified at trial that the CenterState account was

intended for her retirement and that the initial designation of the account as a joint

account was a mistake. Even if the account had been titled solely in the former wife's

name originally, however, our decisions reject the notion that nonmarital funds that have

been commingled with marital funds retain their nonmarital character simply because

the account in which they are kept is titled in the name of only one spouse. See, e.g.,

Abdnour, 19 So. 3d at 364 ("Although the Husband points out that all of the brokerage

accounts other than the Janus account were titled in his name alone, this fact is not

relevant."); Pfrengle, 976 So. 3d at 1136 (rejecting the argument that "commingling can

occur only when funds are deposited in a joint account"); Steiner v. Steiner, 746 So. 2d

1149, 1150 (Fla. 2d DCA 1999) ("Even if an account is titled in one spouse's name

alone, it may become marital if both marital and nonmarital funds are commingled in

that account."). Whether the account was titled individually or jointly thus makes no

difference to our consideration. Either way, during the course of the marriage the cash

gifts were commingled with marital assets. They are therefore marital assets.



                                            -4-
              Furthermore, there was evidence at trial that contradicted the former wife's

assertion that the initial joint title of the account was a mistake and that the proceeds

were always intended to remain her separate assets. The former husband testified that

the former wife never had his consent to change the title on the account. That

testimony, taken together with the timing and nondisclosure of the former wife's change

of title to the account, her subsequent removal of the former husband from the account

altogether, and her transfer of $78,000 from the account to her mother shortly after the

parties' separation conflicts with the former wife's explanation that the gifts were always

intended to be her separate, nonmarital property. The evidence was sufficient to permit

the trial court to reject her assertions that the proceeds of the CenterState account were

intended solely for her retirement and that it was a mistake to title the account jointly.

              Finally, the former wife argues that the cash gifts should not be considered

marital assets because there is no evidence that the proceeds in the CenterState

account were used to pay marital expenses. She concedes that it was her burden to

show that the gifts were nonmarital. See § 61.075(6)(a)(3). The absence of such

evidence thus weighs against the former wife having carried her burden, rather than the

other way around. Moreover, our cases have not required that commingled funds must

be used to pay marital expenses in order to be treated as entirely marital; it is enough

that the funds be commingled. See Pfrengle, 976 So. 2d at 1136 (holding that

commingled funds were marital because they were not maintained separately and thus

that the nonmarital funds "lost their separate nonmarital character"); Struble, 787 So. 2d

at 50 (holding that proceeds from the sale of a nonmarital asset became marital when

deposited into an account containing marital funds). Accordingly, the trial court did not



                                            -5-
err in determining that that the cash gifts were marital assets subject to equitable

distribution.

                             Inclusion of Dissipated Proceeds

                In the final judgment, the trial court equitably divided the CenterState

account, including the cash gifts, based on a value of $121,196 at the time of

separation. The former wife asserts that this was error because, by the time of trial,

those proceeds had been dissipated by $119,319 to a balance of $1887. Of the

dissipated proceeds, the former wife transferred $78,000 to her mother, used $12,500

to purchase a certificate of deposit titled in her name (and not disclosed in her financial

affidavits), and withdrew $6000 from the account—all within twenty days of the parties'

separation. The former wife testified that the remaining $22,819 was used for her

support while the divorce case was pending.

                We review the trial court's equitable distribution decisions for abuse of

discretion and examine its valuation of marital assets to determine whether it is

supported by competent, substantial evidence. Tradler, 100 So. 3d at 738. Even under

that standard, "[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." Roth v. Roth, 973 So. 2d 580, 584 (Fla. 2d DCA 2008). There is an

exception to this rule, however, where misconduct during the divorce case results in the

dissipation of a marital asset. Tradler, 100 So. 3d at 740; Roth, 973 So. 2d at 584-85.

To determine whether such misconduct occurred, "the question for the trial court is

whether 'one spouse use[d] marital funds . . . for a purpose unrelated to the marriage at

a time when the marriage is undergoing an irreconcilable breakdown.' " Roth, 973 So.



                                             -6-
2d at 585 (alteration in original) (quoting Romano v. Romano, 632 So. 2d 207, 210 (Fla.

4th DCA 1994)).

              There is record evidence from which the trial court could have found that

the depletion of the CenterState account was caused, at least in significant part, by

misconduct. For example, the fact that the $78,000 constituted marital assets, taken

together with the former wife's conduct concerning the title of the account and transfer

of proceeds to her mother, would support a finding that the depletion of that sum

constituted the use of marital funds for purposes unrelated to the marriage. Similarly,

the circumstances surrounding the former wife's purchase of a $12,500 certificate of

deposit and withdrawal of $6000 within twenty days of the parties' separation would

justify a finding of misconduct sufficient to include those sums in an equitable

distribution award.

              Our cases have consistently held, however, that misconduct must be

supported not only by the record evidence, but also by specific factual findings made by

the trial court. Tradler, 100 So. 3d at 740-41 ("Without evidence and a specific finding

of misconduct, the trial court abuses its discretion in including a dissipated asset in the

equitable distribution scheme."). Those findings are absent from this case. Neither the

final judgment, nor the trial transcript, nor any other document in the record contains the

factual findings of misconduct required to include the dissipated funds from the

CenterState account in the equitable distribution scheme.

              For that reason, we must reverse the equitable distribution portion of the

final judgment. See id. at 741 (reversing judgment where "[a]rguably, the trial court

could have made a finding of misconduct based on this evidence, but it did not"); Levy



                                            -7-
v. Levy, 900 So. 2d 737, 746 (Fla. 2d DCA 2005) (reversing judgment where "[t]he trial

court did not make a finding of fact in the final judgment that the Wife was guilty of

misconduct with regard to the depletion or dissipation of the portion of the lump-sum

payment that had been spent"); Cooper v. Cooper, 639 So. 2d 153, 155 (Fla. 2d DCA

1994) (reversing judgment where "[t]he final judgment contains no finding that the

husband wrongfully depleted the IRA"). On remand the trial court shall recalculate the

equitable distribution in keeping with this opinion and, if necessary, shall make findings

on the issue of dissipation of assets as required by case law. See Tradler, 100 So. 3d

at 742; Levy, 900 So. 2d at 747. We note that this reversal may impact other portions of

the equitable distribution scheme, and the trial court may readdress any portion of the

equitable distribution or related alimony calculations as required.

                               The Closed Bank Account

              The former wife asserts that the trial court erroneously included in the

equitable distribution computation $33,392 of proceeds from an older bank account,

also opened with CenterState, that was closed before the parties' separation. At the

time that account was closed, the proceeds were deposited in the CenterState account

discussed above and included in the $121,196 in that account at the time of separation,

all of which the trial court determined to be marital assets subject to equitable

distribution. The former husband concedes that the former wife is correct on the facts

and presents no argument that the proceeds formerly in the old account should be

included twice in the equitable distribution of marital assets. On remand the trial court

must not double-count the $33,392 from the old account in the new equitable

distribution calculations.



                                            -8-
                                      Retroactive Alimony

              The trial court awarded the former wife $400 per month in permanent,

periodic alimony. She asserts that the trial court erred by failing to make that award

retroactive to the date of her petition for dissolution of marriage. The record, however,

reveals that the former wife did not request retroactive alimony in the petition, at the

hearing, in her motion for reconsideration, or in any other document in the record. The

former wife has no basis to raise this issue for the first time on appeal. See Cuevas v.

Kelly, 873 So. 2d 367, 373 (Fla. 2d DCA 2004) (stating that parties are precluded from

raising issues not raised in the trial court for the first time on appeal); cf. Martinez v.

Abinader, 37 So. 3d 944, 946 n.2 (Fla. 2d DCA 2010) (holding that issue of retroactive

alimony was preserved where raised on the record at trial). For that reason, this aspect

of the final judgment is affirmed.1

                                          Conclusion

              We find no error in the equitable distribution award to the extent that it

determined that the $78,000 of cash gifts were marital assets and declined to award

retroactive alimony to the former wife. We nevertheless reverse the equitable

distribution award because the trial court included the dissipated proceeds of the

CenterState account in the equitable distribution calculation and double-counted the

$33,392 in the closed bank account. We therefore remand for the trial court to

recalculate the equitable distribution and to make any necessary factual findings as to



              1
                To the extent that our remand for reconsideration of the equitable
distribution calculation may cause the trial court to revisit alimony on remand, we note
that determinations concerning retroactive alimony are required to be supported by
findings as to need and ability to pay. See Valentine v. Van Sickle, 42 So. 3d 267, 274
(Fla. 2d DCA 2010); Alpert v. Alpert, 886 So. 2d 999, 1002 (Fla. 2d DCA 2004).
                                              -9-
whether the dissipation of the CenterState account proceeds was caused by the former

wife's misconduct, adjusting the equitable distribution and alimony calculations as

necessary in light of those findings, and for further proceedings consistent with this

opinion.

              Affirmed in part; reversed in part; remanded.

VILLANTI, C.J., and MORRIS, J., Concur.




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