          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D15-3537
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RODNEY W. STEWART, Husband,

    Appellant,

    v.

DARLA JANE STEWART, Wife,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

                         February 5, 2018


PER CURIAM.

     The appellee, Darla Jane Stewart (the former wife), and the
appellant, Rodney W. Stewart (the former husband), were married
from March 2007 to June 2013 when the former wife filed for
divorce. The former husband followed with a counter petition for
divorce. After the trial court entered an amended final judgment
in which it adopted the former wife’s schedule of marital assets
and liabilities almost entirely, the former husband filed this appeal
challenging several aspects of the trial court’s equitable
distribution. We agree that the amended final judgment should be
reversed and remanded as detailed in this opinion.

                          BB&T Account
     In his first issue on appeal, the former husband argues that
the trial court erred in valuing the balance of his BB&T account at
$58,380.75, which was the balance the time the divorce petition
was filed, instead of using the $3,305.75 balance of the account at
the time of the final hearing. We agree with the former husband
that this valuation was in error.

     In equitable distribution under section 61.075(7), Florida
Statutes (2015), the trial court has discretion to select the
valuation date of a marital asset and may value different assets as
of different dates. Generally, it is error to include diminished or
dissipated assets in equitable distribution unless the asset has
been reduced due to a party’s misconduct. See Gotro v. Gotro, 218
So. 3d 494, 496 (Fla. 1st DCA 2017) (citing Winder v. Winder, 152
So. 3d 836, 838 (Fla. 1st DCA 2014)). Assignment of a dissipated
asset due to misconduct requires a specific finding by the trial
court based on evidence that the martial funds were used for one
party’s own benefit for a purpose unrelated to the marriage. Gotro,
218 So. 3d at 496-97. Here, the trial court made no finding of
misconduct, and the evidence would not support such a finding.
The undisputed testimony at the final hearing showed that the
former husband’s income had diminished considerably in recent
years and that he was forced to use monies from the BB&T account
to satisfy the temporary support obligations to the former wife,
which included $1,500 a month in temporary alimony and $6,000
of the former wife’s initial attorney’s fees, as well as to pay the
costs of the divorce proceedings. As there was no evidence of
misconduct and the testimony showed the money was diminished
to pay marital expenses during the proceedings, the trial court
abused its discretion in assigning the entire $58,380 balance to the
former husband in equitable distribution.          We reverse the
equitable distribution portion of the amended final judgment and
remand with instructions to exclude the dissipated value of the
BB&T account.

                    Rod Stewart Engineering

     The former husband next argues that the trial court erred in
assigning a positive value for Rod Stewart Engineering to him
when the company was a pre-marital asset that had decreased in
value during the marriage. The evidence at the final hearing

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showed that the former husband had owned Rod Stewart
Engineering since 1995, well before the parties’ 2007 marriage.
The evidence also showed that during the first few years of the
parties’ marriage, the business was profitable, with its profits
declining from 2010 onward. The first year of loss for the business
was 2013. Enhancement in value and appreciation of a non-
marital asset due to either parties’ marital labor is a marital asset.
See § 61.075(6)(a)1.b., Fla. Stat. (2015). While there may have
been an argument for assigning some positive value to the
business as a result of marital labor, the wife carried the burden
of proving the value of enhancement. See Pereboom v. Pereboom,
959 So. 2d 1205, 1206 (Fla. 4th DCA 2007). The wife failed to meet
her burden. Id. Thus, we reverse this portion of the amended final
judgment and remand with instructions to exclude the $19,498 in
enhanced value of the non-marital asset.

                           Marital Home

     The former husband advances a similar argument with regard
to the trial court’s decision to assign a $6,000 positive value for
parties’ martial home on Arnie’s Way to him. The former husband
purchased Arnie’s Way in 1992, well before the parties were
married. Arnie’s Way had a mortgage of $27,000 at the time of the
marriage. Shortly after the marriage, the former husband took out
a $230,000 loan from the property, which was used to purchase
property on West Garden Street. The parties agreed that the value
of Arnie’s Way at the time of the final hearing was $170,000. The
former husband argues that the trial court erred in assigning a
positive $6,000 value to him for Arnie’s Way because only
enhancement of a marital asset is subject to distribution and all of
the evidence demonstrated that the non-marital Arnie’s Way had
only decreased in value by $60,000 during the marriage. This
argument is misplaced as the $230,000 loan did not establish a
conclusive value of Arnie’s Way at a period early in the marriage.
Furthermore, the former wife and her father testified that they
had expended considerable efforts in fixing up Arnie’s Way;
however, they failed to offer any evidence as to the specific value
of their labor. The former wife’s attorney simply argued that her
labor amounted to $20,000 in enhancements, but she was only
seeking a “de minimis” amount of $6,000. The trial court accepted
the $6,000 figure outright and assigned that value to the former

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husband. Because the trial court made no findings with regard to
Arnie’s Way other than to assign a $6,000 value, which did not
have an evidentiary basis, this valuation is reversed and remanded
for recalculation.

                   West Garden Street Property

     The former husband argues that the trial court erred in
establishing the mortgage balance on the West Garden Street
property at $182,000 when the evidence clearly showed the
balance was $186,349. The former wife concedes error. The West
Garden Street valuation is reversed and remanded for
recalculation.

                             Honda Odyssey

     The former husband challenges the trial court’s decision to
assign a $5,000 value for a Honda Odyssey to him when he claims
the evidence showed the former wife drove the Odyssey, it became
inoperable under her care, and she failed to apply the insurance
proceeds to repair the vehicle. This argument is misplaced as the
only evidence of the valuation of the Odyssey came from the
husband’s own financial affidavit listing its value at $5,000.
Further, while there was testimony that the former wife drove the
vehicle, the testimony also showed that the former husband’s
name was on the title, which he refused to sign over to the former
wife. As such, the trial court properly assigned a $5,000 value for
the Odyssey to the former husband.

                         Personal Property

     Finally, the former husband argues that the trial court erred
in placing a value on the personal property of the marriage of
$38,660, as reflected in error in the former husband’s first financial
affidavit, as opposed to the corrected $15,795 value on the former
husband’s amended financial affidavit. The former husband did
testify that the value of the personal property in his amended
financial affidavit was the correct amount. The trial court did not
make any specific findings as to the value of the particular items
being distributed; therefore, is unclear as to whether this
valuation was inequitable given the former husband’s testimony.
The personal property amount is also remanded for recalculation.

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     The amended final judgment is reversed and remanded as
detailed above. The remainder of the amended final judgment is
affirmed.

    AFFIRMED in part, REVERSED in part, and REMANDED.

WOLF, ROBERTS, and WETHERELL, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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E. Jane Brehany, Pensacola, for Appellant.

Gregory D. Smith of Gregory D. Smith, P.A., and Kathleen E.
Anderson of Anderson & Runco, Pensacola, for Appellee.




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