November 13, 2023
SSRGA recently secured the affirmance of a final judgment of divorce that awarded sole parental responsibility to the former wife and considered the former husband’s waste of assets in the court’s determination of equitable distribution.
In the dissolution proceeding, the former wife requested sole parental responsibility, while the former husband requested overnight visitation. The parties sought equitable distribution of marital assets and debts. However, the former wife requested that the former husband’s 401(k) loan taken during the marriage be solely assigned to him due to his waste of assets.
In the Final Judgment, the trial court found that a safety focused parenting plan was necessary, that sole parental responsibility to the former wife was in the best interests of the children, and that shared parental responsibility would be detrimental. The court designated specific times that the former husband was entitled to timesharing and required the former husband give notice to the former wife to elect to use his visitation.
The trial court ordered that the former husband shall solely be responsible for his 401(k) loans where he unilaterally obtained the loans that were tantamount to waste.
The former husband appealed the Final Judgment to the Fourth District Court of Appeal (“Fourth DCA”). SSRGA represented the former wife in the appeal in the Fourth DCA. Among several issues raised on appeal, the former husband challenged the court’s timesharing plan and the classification of the 401(k) loan as the former husband’s nonmarital debt.
The former husband argued that the timesharing plan set forth by the court improperly placed his timesharing at the discretion of the former wife because he was required to give her notice to see the children. We argued in response that timesharing was not left to the discretion of our client where the court specifically designated a schedule for the former husband to have non-overnight timesharing on specific days and required the former husband to give the former wife five days’ notice of his intent to exercise his visitation. Further, given that the trial court adopted a safety-focused parenting plan and in consideration of the children’s best interests, the circumstances supported set visitation times and discretion to the former husband to elect to use his visitation.
The former husband also argued that the court erred in failing to allocate the 401(k) loan as a marital debt because the loan was taken while the parties were married and that no competent substantial evidence was presented to support any finding that the 401(k) loan amounted to waste. We argued that a court has the ability to justify unequal distribution of a marital liability where there has been intentional waste or depletion of a marital asset within two years prior to the filing for divorce pursuant to section 61.075(1)(i) of the Florida Statutes and that testimony during the dissolution proceeding established how the loan was used and wasted.
The Fourth DCA issued a per curiam affirmance (“PCA”) affirming the final judgment without a written explanation. The Fourth DCA also granted our client’s motion for appellate attorney’s fees conditioned upon findings by the trial court of need and ability to pay and an analysis of the factors set forth in Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997). This favorable result for our client preserves the trial court’s ruling in her favor regarding the safety-focused timesharing for the minor children and enables her to seek an award of appellate attorney’s fees in the trial court.