513 So. 2d 1277 | Fla. Dist. Ct. App. | 1987
Dissenting Opinion
dissenting.
The majority opinion can only be based upon the premise that if the result is “equitable,” an affirmance is proper despite errors of law committed
The trial judge misapplied the law in two instances, the facts of which were uncon-
The testimony regarding valuation of virtually all of the assets was contradictory, especially with respect to the business. Two accountants gave widely contradictory testimony of the business’ value. However, the trial judge in finding it to be non-marital property, assigned no value to it in the final order. The wife’s jewelry and painting were valued at $17,000.00. These two errors resulted in at least a $17,000.00 unequal division of marital assets assuming the business had no value. But there was no testimony it had a “zero” value.
Even taking the valuation of the marital assets in a light most favorable to the husband, the wife was still substantially short-changed. She received 29% of the marital assets and appellee received 71%. There was no justification for such an unequal distribution.
An unequal distribution of marital assets is not always error.
I would therefore reverse and remand.
. Where the judge fails to apply the correct legal rule the result is erroneous as a matter of law, but is not necessarily an abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980).
. In Re Marriage of Iverson, 508 So.2d 391 (Fla. 1st DCA 1987) (reverse and remand for reconsideration of marital asset which was not included in final judgment); Barrs v. Barrs, 505 So.2d 602 (Fla. 1st DCA 1987) (trial court should make specific findings regarding equitable distribution of property); Grant v. Grant, 506 So.2d 1152 (Fla. 1st DCA 1987) (all provisions of a judgment were reversed and case was remanded to trial court where it was not clear to what extent the trial court considered the husband’s pension rights in approving property settlement and determining alimony); Gregg v. Gregg, 474 So.2d 262 (Fla. 3rd DCA 1985) (whether a note should have been an asset to one party, rather than a marital asset, could not be determined on appeal where final judgment made no disposition thereof and cause should be remanded); Carroll v. Carroll, 471 So.2d 1358 (Fla. 3rd DCA), review denied, 482 So.2d 347 (Fla.1985) (an equitable distribution award will not be
.Taking the values given by the husband or his witnesses (when available), it appears the husband received approximately $125,100.00 of the marital assets while the wife received approximately $50,000.00. The record was also unclear as to debt, if any, on many of the assets.
. Langer v. Langer, 463 So.2d 265 (Fla. 3rd DCA 1984), review denied, 472 So.2d 1181 (Fla.1985).
. Question certified to the supreme court:
WHETHER THE TRIAL COURT CAN BE REQUIRED TO MAKE EXPLICIT WRITTEN FINDINGS REGARDING DISPUTED ISSUES OF FACT IN AWARDING EQUITABLE DISTRIBUTION OF MARITAL ASSETS IN A DISSOLUTION OF MARRIAGE PROCEEDING.
Lead Opinion
ON MOTION FOR REHEARING
We grant appellee’s Motion for Rehearing, withdraw our previous opinion and affirm the decision of the trial court.