Saario v. Patrick Tiller, Tiller & Sheets, LLC

333 So.3d 315

Sarah SAARIO, Appellant,

v.Patrick TILLER, Tiller and Sheets, LLC, TS Accounting Bridge, LLC and Rush Commercial Cleaning, LLC, Appellees.

Case No. 5D20-230

District Court of Appeal of Florida, Fifth District.

Opinion filed January 28, 2022

Richard P. Spence, of The Spence Law Firm, PLLC, Orlando, for Appellant.

Martin A. Pedata, of Martin Pedata, P.A., Deland, for Appellees.

LAMBERT, C.J.,

Sarah Saario ("Former Wife") appeals the final judgment entered after trial dissolving her approximately four-and-one-half-year marriage to Patrick Tiller ("Former Husband"). She raises several grounds for reversal of the judgment, primarily related to the trial court's distribution of the parties’ marital property and debt and the denial of her request for alimony. Former Wife also challenges that aspect of the final judgment granting Former Husband's exceptions to a general magistrate's report issued after an evidentiary hearing in which the magistrate recommended that Former Wife be awarded temporary attorney's fees and that Former Husband be found in willful contempt regarding his failure to comply with a temporary support order. We affirm.¹

We begin by briefly addressing two other arguments made by Former Wife that are directed towards procedural matters. First, we conclude, without further elaboration, that the trial court did not abuse its discretion in denying Former Wife's motion to continue the trial. See Peiman v. Peiman , 829 So. 2d 307, 309 (Fla. 5th DCA 2002) ("This court will not disturb the trial court's denial of [a] request for continuance unless [the moving party] establishes that the denial constituted an abuse of discretion." (citations omitted)).

Second, Former Wife, citing to the Florida Supreme Court's opinion in Perlow v. Berg-Perlow , 875 So. 2d 383, 390 (Fla. 2004), argues that the trial court erred by adopting Former Husband's one-page proposed equitable distribution worksheet into its final judgment. We disagree. Perlow did not hold that a trial court's verbatim entry of a proposed final judgment submitted by a party is per se improper. As the court later explained in Strand v. Escambia County , 992 So. 2d 150, 155 (Fla. 2008), what it found to be improper in Perlow was the trial court's almost-immediate verbatim adoption of a lengthy proposed final judgment submitted by one of the parties, without taking sufficient time to independently consider the judgment, and without allowing the opposing party an opportunity to object and submit his own proposed judgment.

In contrast, the parties here, through their counsel, were permitted to submit to the trial court written closing arguments as well as proposed final judgments, which they each did. The court then prepared its own final judgment, which admittedly incorporated Former Husband's equitable distribution worksheet. The final judgment, however, was rendered approximately two months after the parties’ proposed final judgments and worksheets had been submitted to the trial court for consideration. Thus, unlike in Perlow , Former Wife had ample opportunity to raise any objections that she may have had to Former Husband's proposed equitable distribution worksheet.

We next turn to the alleged errors that Former Wife asserts were committed by the trial court in the final judgment, beginning with its equitable distribution of the parties’ marital assets and liabilities.

EQUITABLE DISTRIBUTION—

Former Wife argues that the trial court failed to make adequate findings of fact in its distribution of the parties’ assets and liabilities as required under section 61.075, Florida Statutes (2019), and that its distribution of the assets was "unequal." Our standard of review on this issue is abuse of discretion. See Coleman v. Bland , 187 So. 3d 298, 299 (Fla. 5th DCA 2016) ("The standard of review of a trial court's determination of equitable distribution is abuse of discretion." (quoting Bardowell v. Bardowell , 975 So. 2d 628, 629 (Fla. 4th DCA 2008) )).

The trial court's equitable distribution worksheet identified, placed values on, and distributed both the marital and nonmarital assets and liabilities of the parties. A description of the assets and liabilities distributed is unnecessary to our resolution because Former Wife waived any argument that the trial court erred in its equitable distribution as she did not sufficiently elaborate in her initial brief as to how the trial court's distribution of the marital assets and debts was "unequal" or where the values that the court placed on these assets and debts were not supported by competent substantial evidence. See Coolen v. State , 696 So. 2d 738, 742 n.2 (Fla. 1997) (noting that an appellant's "failure to fully brief and argue [claims mentioned in his or her brief] constitutes a waiver of these claims"). Additionally, Former Wife did not preserve this issue for review by moving for a rehearing below or by otherwise bringing to the trial court's attention any alleged insufficiency in the court's factual findings in the final judgment. See Hedstrom v. Hedstrom , 123 So. 3d 150, 152 n.4 (Fla. 5th DCA 2013) (citing Mathieu v. Mathieu , 877 So. 2d 740, 741 (Fla. 5th DCA 2004) ).

Former Wife also contends that the trial court erred in its equitable distribution of the marital assets by failing to address or distribute Former Husband's purported interest in the following three business entities: Tiller and Sheets, LLC; TS Accounting Bridge, LLC; and Rush Commercial Cleaning, LLC.² However, in response to the trial court's inquiry during opening statements as to whether she was seeking an equitable distribution of any of the businesses, Former Wife responded that she would not be pursuing any interest in them as Former Husband had apparently "dissolved" these entities. Additionally, in her written closing argument to the trial court, Former Wife did not request that these businesses be made part of the court's equitable distribution of the marital assets. We therefore decline to consider this claim. See Broadfoot v. Broadfoot , 791 So. 2d 584, 585 (Fla. 3d DCA 2001) ("As a general rule, we decline to consider claims which were not presented in the first instance in the trial court.").

ALIMONY—

We next address Former Wife's arguments that the trial court erred in denying her request for an award of $3,200 per month in bridge-the-gap alimony. Our review of the trial court's denial of Former Wife's claim for alimony is under the abuse of discretion standard. See Smyth v. Smyth , 959 So. 2d 414, 415 (Fla. 1st DCA 2007) (recognizing that "[t]he standard of review [applicable to alimony decisions made by the trial court] is abuse of discretion" (citing Canakaris v. Canakaris , 382 So. 2d 1197, 1202 (Fla. 1980) )).

Section 61.08, Florida Statutes (2019), authorizes a trial court to award various forms of alimony. Under this statute, when deciding whether to award alimony, a trial court must first make a specific factual determination as to whether one party has an actual need for alimony and the other party has the ability to pay alimony. See § 61.08(2), Fla. Stat. If the court makes these two findings, then, in determining the proper amount and type of alimony, whether it be bridge-the-gap, rehabilitative, durational, or permanent, it must consider all relevant factors, including, but not limited to, those factors described in section 61.08(2)(a)-(j).

Former Wife argues that the trial court abused its discretion when it found in the final judgment that she did not have a need for alimony. She asserts that the trial evidence established her requisite need for alimony as she was the fulltime caregiver for the parties’ minor children with only occasional part-time gainful employment during the marriage, and that she did not have sufficient assets or income to be self-supporting. Former Wife primarily attributes the court's abuse of discretion in denying her alimony claim to the amount of income that it imputed to her.

The trial court received conflicting testimony from each party on Former Wife's alimony claim. In addition, Former Husband presented the testimony of a vocational expert as to Former Wife's present ability to earn a salary or income as a realtor, which was her premarital profession. The expert opined that real estate agent positions in the Central Florida area, with an annual income range of $50,000 to $120,000, were presently available and that Former Wife, with her college degree, prior full-time experience as a realtor in Miami, and part-time experience as a realtor locally, was suitably qualified to immediately begin working in this geographic area as a realtor.

In its final judgment, the trial court found Former Wife to be in "good physical and mental health" and "immediately self-supporting" but that she "chooses not to maximize her earning potential." To that end, the court wrote that although Former Wife's real estate license had been reinstated since 2013 (the first year of the marriage), she was voluntarily unemployed and had failed to exert a good faith effort to become gainfully employed as a fulltime real estate agent. The court then imputed an annual income of $51,554 to Former Wife, which, according to the trial testimony of Former Husband's expert, not only was in the low end of the range of income that he opined that Former Wife could immediately earn as a realtor, but was also the median income for a licensed real estate agent, according to the United States Census Bureau.

A trial court's decision on whether to impute income is reviewed for an abuse of discretion, while its determination of the amount of income to impute will be affirmed if supported by competent substantial evidence. Hudson-McCann v. McCann , 50 So. 3d 735, 737 (Fla. 5th DCA 2010) (citing Guard v. Guard , 993 So. 2d 1086, 1089 (Fla. 5th DCA 2008) ).

In her initial brief, Former Wife "concedes that the trial court should impute a full-time minimum wage to her." Resultingly, the issue framed before us is not...