Mondello v. Torres
2010 Fla. App. LEXIS 17668
| Fla. Dist. Ct. App. | 2010Background
- Husband appeals a final dissolution judgment; Wife cross-appeals. They dispute asset classification (marital vs nonmarital), debts, alimony, interest, and attorney’s fees. The trial court categorized certain assets as nonmarital, awarded lump-sum alimony, and allocated liabilities with accompanying equitable distribution findings. The appellate court reverses in part and remands for additional findings and clarifications.
- Wife inherited substantial assets from her late husband and held accounts overseas (Panama, BNP Paribas, Merrill Lynch) until transferring funds to Smith Barney; she kept these assets in her name and claimed they were nonmarital. Husband claims commingling and marital origin, but the court analyzes intent and credibility. The parties refinanced a marital home in 2006 and engaged in loans and repayments involving Wife’s accounts, with disputes over whether funds remain nonmarital.
- Judgments against Husband amount to approximately $2.1 million; the court must decide what portion, if any, is marital, and how it affects distribution. The court found some assets and debts nonmarital but failed to provide required written findings for the marital liability allocation and to value certain assets (notably a life insurance policy).
- Alimony: the court denied permanent alimony but awarded a $75,000 lump-sum; the opinion requires explicit findings of special circumstances for lump-sum alimony in a gray-area marriage. Interest on a promissory note between the spouses was treated as trial by consent. Attorney’s fees of $4,550 were awarded without notice under Rosen, but upheld given post-trial stipulations.
- Remand directions: designate two Wife-held accounts as nonmarital or explain inconsistency; clarify repayment of Wife loan by Husband within the distribution; value Husband’s life insurance policy; provide explicit factual findings for alimony; reconsider bequests of debts distribution to reflect equity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Smith Barney funds nonmarital? | Mondello contends funds originated from marital refinancing; marital funds claimed. | Torres argues inherited funds remained nonmarital and properly remained separate. | Smith Barney funds were nonmarital; presumption overcome; findings sufficient to keep asset nonmarital. |
| Are BNP Panama accounts nonmarital? | Wife hid assets; accounts may be marital due to commingling. | Wife asserts inheritance and secrecy to protect children; no credible proof of Husband’s funds. | BNP Panama account designated nonmarital; credibility and concealment weighed; remand for consistency. |
| How should marital liabilities from judgments be allocated? | Husband argues majority (or all) should be nonmarital; evidence supports unequal distribution. | Wife seeks equitable distribution; trial court has discretion to allocate. | Court must provide explicit written findings; remand for clarified, potentially unequal allocation. |
| Is lump-sum alimony justified without explicit special circumstances? | Husband claims denial of permanent alimony requires special findings; lump-sum unsupported. | Wife asserts lump-sum supported by court discretion in gray-area marriage. | Reversed for failure to state required factors and special circumstances; remand for findings. |
| Was interest on the Wife–Husband promissory note properly tried by consent? | Interest issue not pleaded but tried by consent. | Parties implicitly consented; admissible evidence. | Interest awarded and trial treated by consent; upheld. |
Key Cases Cited
- Lakin v. Lakin, 901 So. 2d 186 (Fla. 4th DCA 2005) (inheritance assets may remain nonmarital unless gift inferred by conduct)
- Hay v. Hay, 944 So. 2d 1043 (Fla. 4th DCA 2006) (trial court may overcome presumption of gift by evidence)
- Marsh v. Marsh, 419 So. 2d 629 (Fla. 1982) (credibility determines whether a gift is made)
- Francavilla v. Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007) (trial court credibility findings govern asset characterization)
- Porzio v. Porzio, 760 So. 2d 1075 (Fla. 5th DCA 2000) (special circumstances required for non-modifiable alimony)
- Rosario v. Rosario, 945 So. 2d 629 (Fla. 4th DCA 2006) (special circumstances needed for lump-sum alimony; non-modifiable support evidence)
- Ryan v. Ryan, 927 So. 2d 109 (Fla. 4th DCA 2006) (alimony determinations require consideration of statutory factors; possible remand for findings)
- Nichols v. Nichols, 907 So. 2d 620 (Fla. 4th DCA 2005) (gray-area marriages require careful evaluation of permanent alimony)
- Pomeranz v. Pomeranz, 901 So. 2d 895 (Fla. 4th DCA 2005) (equitable distribution requires specific written findings)
- Augoshe v. Lehman, 962 So. 2d 398 (Fla. 2d DCA 2007) (deals with equitably distributing liabilities; not halved divisions by guess)
- Dorsett v. Dorsett, 902 So. 2d 947 (Fla. 4th DCA 2005) (findings required to support asset and debt valuations)
- Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) (fee awards must be properly noticed and justified)