Ronald L. MARCOUX, Petitioner,
v.
Catherine M. MARCOUX, Respondent.
Supreme Court of Florida.
*543 Gary L. Rudolf of English, McCaughan & O'Bryan, Fort Lauderdale, for petitioner.
William I. Zimmerman, Pompano Beach, for respondent.
Cynthia L. Greene of the Law Offices of Melvyn B. Frumkes, Evan Langbein, Miami, Michael R. Walsh, Orlando, Marsha B. Elser, Chairman, and Brenda M. Abrams, Chairman-elect, Miami, amicus curiae for Family Law Section of The Florida Bar.
Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, amicus curiae for The Academy of Florida Trial Lawyers.
SHAW, Justice.
This case is before us on petition for review of Marcoux v. Marcoux,
The facts are outlined in the district court opinion. We add that the wife's permanent periodic alimony award was ordered by the trial court to be reduced from $1,250 to $750 monthly when the younger child, aged eleven at the time of the hearing, reaches her majority.
By the time of the final hearing the parties had agreed that primary child custody would be with the wife, with liberal visitation for the husband. Most of the evidence taken was related to property distribution. Conflicting evidence was given by each party's accountant regarding the value of the husband's fifty percent interest in Draughon and Marcoux, Inc., his most valuable asset. The disagreement was primarily over whether the business had goodwill value that made it worth substantially more than its book value. By the end of the hearing both sides agreed that the husband's average annual income since the inception of the business was almost $60,000.
The trial judge did not make findings specifying his assignment of value to Draughon and Marcoux, Inc., but the district court assumed, based on the total award to the wife, that the trial court had found it to have substantial goodwill value. The district court doubted that the corporation had substantial goodwill value, but did not reverse the trial court on this basis.
The district court affirmed the judgment below, stating that
[e]ven though we believe that the husband has been shortchanged, we reluctantly must affirm because of the recent Supreme Court decision in Conner v. Conner,439 So.2d 887 (Fla. 1983). That case holds that a determination that a party has been "shortchanged" is an issue of fact and not one of law and that a District Court exceeds its scope of appellate review in making such a determination. To the same effect is the more recent case of Kuvin v. Kuvin,442 So.2d 203 (Fla. 1983), where the Supreme Court reversed the Third District Court of Appeal based on the test of whether the judgment is supported by competent evidence.
Marcoux,
DO CONNER V. CONNER, SUPRA, AND KUVIN V. KUVIN, SUPRA, LIMIT THE SCOPE OF APPELLATE REVIEW ENUNCIATED IN CANAKARIS V. CANAKARIS,382 So.2d 1197 (Fla. 1980)?
Id.
We answer the question in the negative. There is nothing in Conner v. Conner,
Conner was a pre-Canakaris case at the trial level. The district court properly remanded to the trial court for consideration in light of Canakaris. However, the district court also made the finding that Mrs. Conner had been "shortchanged" in view of her contributions to the marriage. In so doing the district court acted as fact finder in the first instance, as the trial court had not made a finding relative to evidence of Mrs. Conner's contributions to her husband's success for the purpose of establishing her entitlement to property titled in his name only. An appellate court must review the trial court's finding of fact in light of the record to determine that a party has been "shortchanged," and the district court in Conner made this determination without first allowing the trial court to weigh the evidence to effect an equitable distribution of the separate property. Consequently, we remanded to the trial court for a further finding of fact regarding Mrs. Conner's contributions and it was that issue that we referred to as "an issue of fact." Conner is thus consistent with other cases dealing with the scope of appellate review in dissolution appeals, and it alters Canakaris not in the slightest.
In the present case, the district court found the valuation placed on Draughon and Marcoux, Inc. to be "the crux of this case,"
The use of the term "shortchanged" in Brown v. Brown,
Due to the district court's misinterpretation of Conner and Kuvin, it has not reviewed the trial court's final judgment to determine whether it reflects a proper exercise of discretion. Expressing no view regarding the merits of this cause, we quash the district court decision and remand for reconsideration in light of this opinion.
It is so ordered.
BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.
NOTES
Notes
[*] If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Canakaris v. Canakaris,
