GARY L. SMITH v. VERNIA SMITH
226 So. 3d 948
| Fla. Dist. Ct. App. | 2017Background
- Parties were married 13 years; no children. Former Wife filed for dissolution and sought alimony, equitable distribution, and attorney’s fees; Former Husband counterclaimed similarly.
- Central asset dispute concerned Former Husband’s retirement pension; Former Wife claimed the pension had been dissipated and asserted it was worth about $102,000 at filing; Former Husband disputed that valuation and said he had withdrawn funds for fees and living expenses.
- Exhibit evidence included a pension summary estimating ~$102,000 as of May 1, 2012, and bank records showing large withdrawals and a low account balance (~$5,502.81) near the filing date.
- The trial court valued the pension at $102,000 “as of the date of filing,” awarded Former Wife $50,000 (via $2,000/month × 25 months) as an equalizing payment tied to a “retirement account,” and ordered Former Husband to pay Former Wife’s former counsel $7,501 in fees ($300/month).
- Former Husband moved for rehearing; denied. On appeal the Fourth District affirmed in part but reversed and remanded as to (1) the attorney’s fee award, (2) the pension valuation, and (3) the $50,000 equitable distribution tied to the pension.
Issues
| Issue | Plaintiff's Argument (Former Wife) | Defendant's Argument (Former Husband) | Held |
|---|---|---|---|
| Attorney’s fees award of $7,501 to Former Wife’s former counsel | Fees were reasonable; supporting billing and prior charging lien exist | Court failed to consider Husband’s ability to pay; billing lacks detail for $6,749.71 portion | Reversed and remanded: court must make written findings on Husband’s ability to pay and supply competent evidence (lodestar calculation) for fees awarded |
| Valuation of pension at $102,000 as of filing | Pension summary supports $102,000; pension was marital asset | Pension was substantially depleted by withdrawals before filing; no evidence it was $102,000 at filing | Reversed: no competent substantial evidence pension was $102,000 as of filing; court must correct inconsistent findings and state valuation date and basis |
| Equitable distribution: $50,000 equalizing payment tied to pension | Wife entitled to half the marital pension value (or recovery for dissipation) | Pension was depleted; no specific finding of intentional dissipation; Husband’s ability to pay questionable | Reversed: court cannot distribute based on dissipated asset absent specific finding of intentional dissipation or explicit use of an earlier valuation date; must consider Husband’s ability to pay and identify the source asset |
| Other issues raised on appeal (unspecified) | — | — | Affirmed without discussion |
Key Cases Cited
- Diwakar v. Montecito Palm Beach Condo. Ass’n., 143 So. 3d 958 (Fla. 4th DCA 2014) (attorney’s fees award reviewed for abuse of discretion and must be supported by competent substantial evidence)
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) (trial court must consider each spouse’s need and ability to pay when awarding fees)
- Beckstrom v. Beckstrom, 183 So. 3d 1067 (Fla. 4th DCA 2015) (remand required where court found need for fees but failed to find payor’s ability to pay)
- Simhoni v. Chambliss, 843 So. 2d 1036 (Fla. 4th DCA 2003) (fee awards must include findings on hours reasonably expended and reasonable hourly rate)
- Weymouth v. Weymouth, 87 So. 3d 30 (Fla. 4th DCA 2012) (cannot include dissipated assets in equitable distribution absent specific finding of intentional dissipation)
- Jordan v. Jordan, 127 So. 3d 794 (Fla. 4th DCA 2013) (findings need not be in judgment where record contains competent evidence to support them)
- Pomeranz v. Pomeranz, 901 So. 2d 895 (Fla. 4th DCA 2005) (equitable distribution reviewed for abuse of discretion)
- Abramovic v. Abramovic, 188 So. 3d 61 (Fla. 4th DCA 2016) (court must consider payor’s ability to pay when ordering ongoing equalizing payments)