Gerald SPIELBERGER, Appellant, v. Annette Magalnick SPIELBERGER, Appellee.
No. 97-0289.
District Court of Appeal of Florida, Fourth District.
July 8, 1998.
712 So.2d 835
STONE, Chief Judge.
Robert Feldman of Law Offices of Robert Feldman, P.A., Boca Raton, for appellee.
STONE, Chief Judge.
We reverse a final judgment of dissolution as the trial court distributed 98% of the marital assets to Wife without justification.
The parties were married for three years. Husband is 73 and in poor health; Wife is age 64. Wife entered thе marriage with few assets and Husband had saved over $100,000 as well as accumulating a pensiоn. The parties purchased an $81,000 home, with a $40,000 down payment, apparently from Husband‘s pre-marital funds. After the marriage, Wife received $31,000 from a personal injury settlement. She gаve about half of this money to her children, and deposited the remaining $16,300 in the parties’ jоint checking account. Most of this money was used to purchase furniture. Shortly after the marriage, Husband suffered a nervous breakdown. He was hospitalized for four-and-a-half months. His illnеss continued and they separated.
The court had ordered Husband to pay temporary support of $1,600 a month. Wife received $29,692 in temporary support, and Husband is in arrears for an additional $21,503. The final judgment granted the marital home, which had $58,000 in equity, to Wife, entered judgment for her for $10,684 for funds improperly removed from a joint bank account, ordered Husband tо pay $1,600 rehabilitative alimony for 24 months, and awarded all furnishings and other marital assets to Wifе.
Distribution of marital assets must be equal unless there is justification in the record supporting the court‘s disparate treatment. E.g., Longo v. Longo, 533 So.2d 791 (Fla. 4th DCA 1988);
In Longo, we concluded that the wife‘s lesser capacity for self-support did not justify distribution of assets in which the wife received almost twice as much as the husband
We also note that the judge‘s valuation of the parties’ furniture appears inconsistent. The court valued all of the furnishings at only $3,000, although they werе recently purchased for at least $20,000. (Wife estimated she spent $20,000 on the furniture, Husband estimаted the cost at $62,000.) However, the court valued Husband‘s sofa at its full retail price—$1,100. On remаnd, the court should find a consistent method of depreciating each party‘s furniture, and thеn equitably distribute its value.
We also find that the court abused its discretion in determining that the ChemPlus account was a marital asset. Under the equitable distribution statute, non-marital assets include “[а]ssets acquired ... by either party prior to the marriage, and assets acquired ... in exchange for such assets....”
The general rule is that “When one spouse deposits funds into a joint account where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other sрouse of an undivided one-half interest in the funds.” Williams v. Williams, 686 So.2d 805, 808 (Fla. 4th DCA 1997). In the instant case, there was no evidencе that Wife deposited any funds into this account or ever drew upon these funds. There was testimony that the parties had pooled and commingled funds with regards to another joint aсcount, but the record reflects that the funds in the ChemPlus account were exclusively Husband‘s. Thus, nо commingling occurred to create a presumption of a gift. See generally Lyons v. Lyons, 687 So.2d 837 (Fla. 2d DCA 1996) (although certificate of deposit was originally placed in parties’ joint names, because it was funded entirely by wife‘s inheritance and the funds were never commingled, the CD was wife‘s non-marital asset); Behrman v. Behrman, 376 So.2d 294 (Fla. 2d DCA 1979).
As to all other issues raised, we affirm. We remand for further proceedings consistent with this opinion.
GUNTHER and SHAHOOD, JJ., concur.