Opinion
No. 2D20-3509
05-25-2022
Oscar O. OLGUIN, Appellant, v. Anien Y. OLGUIN and Manuel Torrecilla, Appellees.
Nicole R. Ramirez, Raymond A. Haas and Amanda M. Glenz of HD Law Partners, P.A., Tampa, for Appellant. John R. Lonergan of John R. Lonergan, P.A., Fort Myers, for Appellee Anien Y. Olguin. Yamila Lorenzo and Ryan Clancy of Ainsworth + Clancy, PLLC, Miami, for Appellee Manuel Torrecilla.
Nicole R. Ramirez, Raymond A. Haas and Amanda M. Glenz of HD Law Partners, P.A., Tampa, for Appellant.
John R. Lonergan of John R. Lonergan, P.A., Fort Myers, for Appellee Anien Y. Olguin.
Yamila Lorenzo and Ryan Clancy of Ainsworth + Clancy, PLLC, Miami, for Appellee Manuel Torrecilla.
SILBERMAN, Judge.
Oscar O. Olguin (the Former Husband) seeks review of the final judgment dissolving his marriage to Anien Y. Olguin (the Former Wife). The Former Husband also appeals an order granting a directed verdict that disposes of the case as to Manuel Torrecilla, who is the Former Wife's father and a third-party respondent, on a claim for resulting trust. The Former Husband raises three issues on appeal. He has failed to show error on issue three, and we do not discuss it further. As to issue one, we reverse the final judgment concerning the durational alimony, child support, and the failure to attach a complete equitable distribution worksheet to the judgment and remand for further proceedings. As to issue two, we reverse the order directing a verdict in favor of Torrecilla on the claim for a resulting trust and remand for further proceedings. Otherwise, we affirm the final judgment as to the dissolution of the parties' marriage and all other determinations in the final judgment not discussed below.
The Former Wife's counsel filed a notice that the Former Wife would not be filing a brief "due to her financial inability to afford appellate counsel."
On December 19, 2017, the Former Husband filed a petition for dissolution of marriage. This was a moderate-term marriage of fourteen years and nine months. During the marriage, the Former Husband and the Former Wife resided at 613 Clayton Avenue (the marital home). Torrecilla financed the purchase of the marital home, and the Former Husband and the Former Wife have an outstanding mortgage on the home with payments due to Torrecilla of $850 per month. At the time of the final hearing, the parties had three minor children. The parenting plan is not at issue. The Former Wife sought durational alimony of $1,000 per month for ten years.
The Former Husband filed an amended petition that added a second count for resulting trust against Torrecilla concerning a rental property located at 2903 44th Street West (the rental property) that Torrecilla had purchased in 2011. The Former Husband alleged that Torrecilla purchased the rental property "with the intent that Husband and Wife would pay the full balance of the property" in order to acquire title from Torrecilla. The Former Husband further alleged that he and the Former Wife had contributed substantial marital funds to the rental property and that the trial court should declare the rental property to be marital property and that it should be subject to equitable distribution. Torrecilla denied these allegations.
The trial court conducted a three-day trial. Regarding the claim for a resulting trust, the Former Wife testified that she had helped her father manage the rental property for nine months in 2011. She denied that she and the Former Husband ever paid any marital funds to her father toward the rental property.
Before the Former Husband completed his case-in-chief and before he testified regarding his claim for a resulting trust on the rental property, the trial court sua sponte questioned the Former Husband's counsel regarding the law applicable to resulting trusts. The trial court acknowledged that the Former Husband had not yet testified on the issue but asked what the Former Husband's testimony would be. The Former Husband's counsel provided a brief summary. Both parties then presented argument to the court. At one point the Former Husband's counsel asserted that Torrecilla's argument was based on the Former Wife's testimony and reiterated that the Former Husband had not yet testified. The court expressed doubt that the Former Husband could establish a resulting trust based on the applicable law. Torrecilla's counsel subsequently asked if she could "move for summary judgment at this time." The trial court orally granted the motion for summary judgment on count two at the final hearing.
In its written order, the trial court stated that it was treating the ore tenus motion for summary judgment as a motion for directed verdict because "trial had commenced and evidence on the subject was received." In granting the motion, the trial court used words of finality, stating that the Former Husband "shall take nothing by this action" and that "Torrecilla shall go hence without day." In the Former Husband's motion for rehearing on the order granting a directed verdict, he asserted that he "was not allowed to present his complete case" on a resulting trust. The trial court denied the motion.
On October 15, 2020, the trial court entered the final judgment which provided for an equal equitable distribution, with the parties agreeing to the sale of the marital home. The court ordered the parties to list the marital home for sale with a realtor within two weeks of the date of the final judgment. The trial court determined the incomes and expenses of the Former Wife and the Former Husband, as discussed below in issue one, and awarded durational alimony to the Former Wife. The trial court found that the Former Wife had the need for and the Former Husband had the ability to pay $500 per month for seven years. The trial court also awarded child support and retroactive child support to the Former Wife for a variety of time periods based on their incomes.
The Former Husband filed a motion for rehearing and for relief from judgment under Florida Family Law Rule of Procedure 12.540(b). The trial court denied the motion, and this timely appeal ensued.
I. ALIMONY, CHILD SUPPORT, AND EQUITABLE DISTRIBUTION WORKSHEET
In issue one, the Former Husband makes arguments concerning alimony, child support, and the lack of a complete equitable distribution worksheet. We reverse the final judgment as to these issues and remand for further proceedings, as explained below.
A. Alimony
The Former Husband argues that the trial court erred in its award of durational alimony by failing to properly consider the factors in section 61.08(2), Florida Statutes (2017) ; by failing to make sufficient findings on the amount of the award; and by making findings that were not supported by competent, substantial evidence. The trial court made findings concerning the factors in section 61.08(2)(a)-(j), and the Former Husband does not specifically argue any deficiency in these findings. The Former Husband does argue that the trial court failed to explain its calculations and make sufficient findings on the amount of alimony.
The court found that the Former Wife's gross monthly income was $4,815 and that her net after deducting health insurance for herself was $3,025. The court found that her stated monthly expenses of $5,502 were inflated and that her reasonable expenses were $4,500. Her August 17, 2020, financial affidavit showed a deficit of $2,477.
As to her housing costs for the marital home and her monthly deficit, the trial court found:
While Wife's expenses include a reasonable $850.00 per month for housing (which is paid to her father), she hasn't been able to afford to pay same since December 2016. Her father has not foreclosed on her, nor does this Court believe he would. After the marital home is sold, she will have a housing expense most likely significantly more than $850.00 per month. She has a deficit of $1,475.00 per month.
Thus, the trial court found that the Former Wife's reasonable expenses were $1,002 less than that stated on her financial affidavit, but the court did not set forth which expenses it had deducted. It appears that even though the Former Wife was not making the mortgage payments, the court considered the $850 monthly payment to her father, Torrecilla, as an expense. Because the court ordered the marital home to be put on the market for sale back in October 2020, it is highly likely that the Former Wife currently has different housing with different expenses. The court found that the Former Husband's gross monthly income was $8,202 and that his net after deducting health insurance for himself was $5,861. The court stated that it found several errors in the Former Husband's financial affidavit of August 14, 2020, that showed a monthly deficit of $1,785. The court found that the financial affidavit understated gross income by $463, overstated a mandatory retirement expense by $770.34, and overstated the cost of his individual health insurance by $97.10. The financial affidavit also double counted an auto loan expense of $588. Based on these changes, the court found the Former Husband to have a surplus of $133 per month. The trial court found that this was "before considering the overstatement of monthly rent."
As to rent, the Former Husband testified that he lives with his girlfriend and that they each pay $1,300 per month in rent, for a total of $2,600. The Former Husband testified that the rent included security, recreational amenities, lawn care, cable, and internet. He admitted that the $118 on his financial affidavit for cable television should be removed. The Former Husband testified that he was renting a four-bedroom house so each child would have a bedroom.
The trial court determined that the Former Wife had the need for and the Former Husband had the ability to pay durational alimony of $500 per month for seven years. See § 61.08(7) (stating that a durational alimony award "may not exceed the length of the marriage").
Section 61.08(2) requires the trial court to "make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance." When a trial court fails to make specific findings on need and ability to pay, it "may preclude meaningful appellate review." Horowitz v. Horowitz , 273 So. 3d 263, 267 (Fla. 2d DCA 2019) (quoting Ruberg v. Ruberg , 858 So. 2d 1147, 1155 (Fla. 2d DCA 2003) ). And "even when the court makes findings regarding each of the section 61.08(2) factors, its failure to make findings ‘to allow for meaningful review of the amount of alimony awarded’ constitutes reversible error." Id. (quoting Ketcher v. Ketcher , 188 So. 3d 991, 993, 994 (Fla. 1st DCA 2016) ); see also Giles v. Giles , 298 So. 3d 1277, 1283 (Fla. 2d DCA 2020) (quoting Horowitz , 273 So. 3d at 267 ) (same). As to the calculation of the Former Wife's income and the trial court's determination that her expenses were overstated by $1,002, "without factual findings it is impossible to tell which values the court accepted." Horowitz , 273 So. 3d at 268.
The Former Husband also contends that the trial court should have considered as income the $850 per month that the Former Wife was not paying her father for mortgage payments, citing Cooper v. Kahn , 696 So. 2d 1186 (Fla. 3d DCA 1997). In Cooper , the wife's mother paid the wife's living expenses in a "continuing and ongoing nature," and the appellate court affirmed the imputation of income on that basis. Id. at 1188. Here, Torrecilla has not paid the Former Wife's expenses out-of-pocket. Rather, he has not sought to foreclose on the mortgage loan he made to both parties. He testified that he expected to be paid in full when the property sold. In any event, it appears that the situation is likely to be different now if the property has sold and the Former Wife has found other housing.
Further, although the court found that the Former Wife had a $1,475 deficit, it found that she had a need of $500. This may be due to the trial court's finding that the Former Husband had an ability to pay $500, but the findings as to the Former Husband's ability to pay are insufficient for us to conduct a meaningful appellate review.
The Former Husband specifically argues that no competent, substantial evidence supports the trial court's finding that $2,600 was not a reasonable rental amount for his residence. The trial court did not explain in its order how it came to this determination except to say that "$2,600.00 per month for rent is very high and not reasonable." The trial court did not state what amount it considered reasonable. No evidence was presented on reasonable rental values in the area for a four-bedroom home that included security, recreational amenities, lawn care, cable, and internet.
After adjusting amounts on the Former Husband's affidavit, the trial court determined that the Former Husband had a monthly surplus of $133 but found that he had an ability to pay $500 a month in alimony. We note that the trial court did not reduce the Former Husband's monthly expenses by the $118 per month for cable television that the Former Husband admitted at trial was a mistake on his affidavit because that amount was included in his rent. Even then, the Former Husband's surplus would be only $251 and still not enough to support an ability to pay $500 per month. We assume that the trial court must have determined some lesser amount was reasonable for rent but did not set forth findings. The failure to make such findings hampers our review. Moreover, none of the evidence presented would support a finding that $2,600 per month was an unreasonable rent.
Therefore, we reverse and remand for the trial court to reconsider the award of durational alimony to the Former Wife and to make detailed factual findings on need and ability to pay. See Horowitz , 273 So. 3d at 268. Because, among other things, the Former Wife's housing expenses have likely changed, the trial "court should ‘consider the parties’ then-current circumstances in determining the amount of alimony.’ " Id. (quoting Ruberg , 858 So. 2d at 1155 ).
B. Child Support
The Former Husband correctly argues that alimony should have been considered in determining income for calculation of child support.
Pursuant to section 60.30(2)(a)9 and (3)(g), Florida Statutes (1997), the trial court must add to a party's income any alimony received and subtract alimony paid. Thus, in a case in which one party is paying alimony to the other party, alimony, if ordered, must be determined before child support can be calculated under the guidelines.
Cornett v. Cornett , 713 So. 2d 1083, 1085 (Fla. 2d DCA 1998) ; see also Mobley v. Mobley , 18 So. 3d 724, 728 (Fla. 2d DCA 2009) (recognizing that a spouse's payment or receipt of alimony is factored into determining a party's net income for child support purposes); Storey v. Storey , 979 So. 2d 1057, 1058 (Fla. 2d DCA 2008) (recognizing that alimony must be considered as income in determining the amount of child support). Therefore, we reverse as to the child support ordered and remand for a recalculation that considers the receipt and payment of alimony under sections 61.30(2)(a)9 and (3)(g), Florida Statutes (2017).
C. Equitable Distribution
As the Former Husband argues, the equitable distribution worksheet filed with the final judgment is incomplete. The page with lines 14-31 appears to be missing, and another page is duplicated. Thus, we direct the trial court to attach a complete equitable distribution worksheet to the final judgment it enters on remand. II. RESULTING TRUST
The Former Husband contends that the trial court erred in granting a "directed verdict" on count two for a resulting trust and incorrectly ruled before the completion of the Former Husband's case. Because the Former Husband had not completed his presentation of evidence on count two, the trial court erred in granting a directed verdict on that count.
"A resulting trust arises when one party pays the consideration for the purchase of property but title is taken in the name of another." Socarras v. Yaque , 452 So. 2d 992, 994 (Fla. 3d DCA 1984) (citing Dep't of Revenue v. Zuckerman-Vernon Corp. , 354 So. 2d 353, 356 (Fla. 1977) ). As to timing, a resulting trust arises "at the instant legal title vests and the alleged beneficiary must have paid the purchase price or bound himself by an absolute obligation to pay it." Id. ; see also Harnish v. Peele , 386 So. 2d 8, 10 (Fla. 5th DCA 1980) (determining that there was no resulting trust when "Peele had no binding obligation to pay the Harnishes").
Torrecilla's motion for summary judgment on count two at trial was inappropriate because a motion for summary judgment is a pretrial mechanism. See Williams v. Washington , 120 So. 3d 1263, 1264 (Fla. 1st DCA 2013). Although the trial court stated that it was granting a directed verdict, see Fla. R. Civ. P. 1.480, the equivalent in a bench trial is an involuntary dismissal, see Fla. R. Civ. P. 1.420(b) ; Fla. Fam. L. R. P. 12.420(b).
Rule 12.420(b) provides in pertinent part:
After a party seeking affirmative relief in an action has completed the presentation of evidence, any other party may move for a dismissal on the ground that on the facts and the law the party seeking affirmative relief has shown no right to relief, without waiving the right to offer evidence if the motion is not granted.
Thus, "a trial court may not involuntarily dismiss an action before the plaintiff has rested its case." Fischer v. Fischer , 195 So. 3d 1170, 1172 (Fla. 4th DCA 2016) ; see also Bank of N.Y. Mellon v. Diaz , 232 So. 3d 435, 436 (Fla. 4th DCA 2017) ("[A] trial court may not involuntarily dismiss a case during trial for insufficiency of evidence prior to the completion of presentation of evidence by the plaintiff."); Wells Fargo Bank, N.A. v. Gonzalez , 186 So. 3d 1092, 1096 (Fla. 4th DCA 2016) ("Granting a motion for involuntary dismissal before the plaintiff has completed its case has due process implications, because the constitutional guarantee of due process requires that each litigant be given a full and fair opportunity to be heard.").
Further, even if a plaintiff is permitted to proffer evidence, it is error to order an involuntary dismissal before the plaintiff presents his case-in-chief. See Deutsche Bank Nat'l Tr. Co. v. Altos Del Mar (7701 Collins Ave) LLC , 187 So. 3d 930, 931 (Fla. 3d DCA 2016) ("We reject appellees' contention that the opportunity to make a complete proffer prior to entering the involuntary dismissal satisfied due process concerns and compels affirmance."). Thus, even though the trial court asked the Former Husband's counsel what the Former Husband's testimony would be, the trial court erred in granting what was in effect an involuntary dismissal before the Former Husband had completed the presentation of his case-in-chief. Therefore, we reverse the order granting a directed verdict on the Former Husband's claim for a resulting trust and remand for the trial court to take evidence on count two.
III. CONCLUSION
In summary, we reverse the order granting a directed verdict that disposes of the case as to Torrecilla on the claim for resulting trust and remand for further proceedings. We also reverse the final judgment concerning the durational alimony, child support, and the failure to attach a complete equitable distribution worksheet to the judgment and remand for further proceedings. Otherwise, we affirm the final judgment as to the dissolution of the parties' marriage and all other determinations in the final judgment not reversed herein.
Affirmed in part, reversed in part, and remanded.
NORTHCUTT and STARGEL, JJ., Concur.