Marianne K. Brennan v. Daniel Joseph Brennan
184 So. 3d 583
Fla. Dist. Ct. App.2016Background
- Divorce judgment originally entered in 2011; Fourth DCA’s prior opinion (Brennan I, 122 So. 3d 923) reversed aspects of the equitable distribution, imputation of income, private school tuition, life‑insurance security, and attorney’s fees, and remanded for further proceedings.
- On relinquishment the trial court entered an Amended Final Judgment including an equitable distribution schedule; further proceedings on remand revisited valuations and support issues.
- On remand the trial court held a hearing, adopted the husband’s proposed equitable distribution schedule, valued the husband’s dental practice at negative $240,000 (with some inconsistency in the schedule), ordered partition and sale of the marital home (but provided inconsistent sale mechanisms), imputed $48,000 income to the wife, reduced durational alimony to five years and set monthly alimony at $3,250, declined to order payment of private school beyond 2013–14, and required each party to bear own fees.
- Wife appealed the Second Remand Judgment, arguing (inter alia) the trial court exceeded the scope of the appellate mandate by revaluing assets and reducing alimony’s duration; she also challenged partition, the imputation, private‑school finding, attorney’s fees, and an undefined alimony credit mechanism.
- This opinion: affirms some remand rulings (imputation, private‑school inability to pay), reverses others (revaluation of assets on remand; reduction of alimony duration), and remands with directions to correct inconsistencies and recalculate attorney’s fees and any alimony credit with proper findings.
Issues
| Issue | Brennan's Argument (Wife) | Brennan (Husband)'s Argument | Held |
|---|---|---|---|
| Did trial court exceed scope of Brennan I by revaluing assets and liabilities on remand? | Trial court should not revisit valuations or change asset values set in original equitable distribution. | Trial court had discretion to receive evidence and adjust distribution after partition decision. | Reversed: trial court exceeded mandate by revaluing assets; must redistribute remaining assets/liabilities using original values (except split net proceeds of home sale). |
| Should the marital home be partitioned and how treated? | Wife argued partition was not pursued and prior record contained schedule showing she received equity; partition would cause manifest injustice. | Husband sought partition/sale per remand instructions. | Affirmed need to divide home; remand to split net proceeds if any and correct inconsistency (private vs public sale). Prior opinion stands; no manifest injustice found. |
| Was imputing $48,000 annual income to wife supported? | Wife argued imputation unsupported and higher than historical earnings. | Husband (via vocational expert) argued she was immediately employable at entry wages ~$47–50k. | Affirmed: substantial competent evidence supported imputing an entry‑level wage given her qualifications and market testimony. |
| May trial court reduce durational alimony from 10 years to 5 years on remand? | Wife argued 10 years is law of the case from prior appeal and cannot be reduced. | Husband argued remand allowed reconsideration of support based on current evidence. | Reversed: reduction exceeded scope; ten‑year duration (law of the case) must be reinstated. |
| Did trial court properly order private‑school cost allocation? | Wife contended trial court improperly revisited whether tuition matched family standard of living. | Husband argued inability to pay justified limiting obligation. | Affirmed: substantial evidence supports finding husband lacks ability to pay; trial court did not abuse discretion in declining to order further payment. |
| Were attorney’s fees and alimony credit properly resolved? | Wife argued fee award should be revisited after equitable distribution revisions; also challenged undefined alimony credit. | Husband sought credit entitlement; trial court reserved calculation. | Fees: reversed for reconsideration on remand because redistribution may change ability to pay. Alimony credit: entitlement determined but amount calculation absent; issue not ripe — trial court must specify method and amount on remand. |
Key Cases Cited
- Brennan v. Brennan, 122 So. 3d 923 (Fla. 4th DCA 2013) (prior DCA decision reversing portions of original dissolution judgment and remanding)
- Akins v. Akins, 839 So. 2d 910 (Fla. 5th DCA 2003) (trial court may not exceed scope of appellate mandate)
- Wolfe v. Nazaire, 758 So. 2d 730 (Fla. 4th DCA 2000) (remand for reconsideration vests broad discretion unless mandate is specific)
- Tampa Elec. Co. v. Crosby, 168 So. 2d 70 (Fla. 1964) (on remand the case returns in same condition as if the appealed order had not been entered; additional evidence may be received unless mandate limits reconsideration)
- Rosecan v. Springer, 985 So. 2d 607 (Fla. 4th DCA 2008) (trial court exceeds mandate by changing values when remand did not authorize revaluation)
- Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101 (Fla. 2001) (law of the case doctrine governs issues decided on appeal)
- Tarnawski v. Tarnawski, 851 So. 2d 239 (Fla. 4th DCA 2003) (standard for imputing income; cannot impute more than historical earnings absent special circumstances)
- Schram v. Schram, 932 So. 2d 245 (Fla. 4th DCA 2005) (imputation permitted where party willfully earns less and can earn more)
- Segall v. Segall, 708 So. 2d 983 (Fla. 4th DCA 1998) (attorney’s fees should be revisited when appellate results materially change parties’ ability to pay)
- Gelman v. Gelman, 24 So. 3d 1281 (Fla. 4th DCA 2010) (standards for ordering private school tuition payments)