Florida/Georgia Personal Injury & Workers Compensation

...The Former Wife also argues that the trial court erred in failing to grant her any credit upon sale of the marital home for the mortgage payments that the final judgment requires her to pay. Neither the parties nor the trial court's judgment references section 61.077, which provides as follows: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributi...

...of the sale. The statute then lists the factors the trial court should consider in determining the issue. [1] Id.; see also Holitzner v. Holitzner, 920 So.2d 827, 828 (Fla. 4th DCA 2006) (remanding for the trial court to address, in accordance with section 61.077, the issue of whether the wife was entitled to credits or setoffs upon sale of the marital home). Therefore, on remand the trial court shall specifically address credits and setoffs on the sale of the marital residence in accordance with section 61.077....

...s request for fees and costs after it reconsiders the equitable distribution award and the parties' financial resources. See § 61.16(1). Affirmed in part, reversed in part, and remanded with directions. WHATLEY and NORTHCUTT, JJ., Concur. NOTES [1] Section 61.077, Florida Statutes, was enacted in 1997. See Ch. 97-249, at 4507-08, Laws. of Fla. All the cases that the parties cite on this issue were decided before section 61.077 was enacted.

...Second, appellant maintains the final judgment is silent as to the parties' obligation to pay ownership expenses of the marital home. In addition, no provision was made in the final judgment with regard to credits or setoffs when the marital home is sold. Appellee responds that the statutory clarity of section 61.077, Florida Statutes (1997), obviates any duty of the circuit court to restate statutory absolutes. Section 61.077, Florida Statutes, provides in pertinent part: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment e...

...Section 2 of the act states: "The provisions of this act apply to all settlement agreements entered into or actions filed on or after October 1, 1997." In this case, the petition for dissolution of marriage was filed January 14, 1997, before the effective date of section 61.077. Moreover, there was no settlement agreement which might have served as an alternative means of bringing the sale of the marital home within the provisions of section 61.077....

...tion of property is set forth in the parties' Prenuptial Agreement." He did not seek a setoff. However, in a Joint Pretrial Statement, Glenn Udell requested "a reasonable rental value and or set-off as determined by the statutory factors set forth F.S. 61.077 for the wife's exclusive use of the marital home since the date of the separation." During opening arguments at the dissolution hearing, Glenn Udell's counsel asserted that the only issue to be decided regarded the award of a rental value o...

...However, it is unclear how the proceeds from the marital home were to be distributed once the home is sold, and if the former wife is entitled to reimbursement as a co-tenant for all expenses relating to the home that she incurs during the period of exclusive possession. Section 61.077, Florida Statutes, provides, in relevant part, A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. § 61.077, Fla....

...support, the nonresident may not claim rent, even though the resident owner has been granted the exclusive right to occupy the property, and even though the nonresident has been directed to pay his or her share of the property expenses. Furthermore, Section 61.077, Florida Statutes, which establishes the criteria for determination of entitlement to setoffs and credits upon the sale of a marital home, does not authorize a rental credit to the out-of-possession co-tenant during the use of the marital home for the benefit of the minor children. Section 61.077(1), Florida Statutes (2004), requires that the court consider the grounds upon which exclusive use and possession of the home is being awarded in determining whether there is a setoff....

...We hold that the trial court exceeded its discretion in determining setoffs or credits upon the sale of the marital home and directing the proceeds of that sale to the former husband and GE Commercial Distribution Finance Corporation because it is inconsistent with section 61.077, Florida Statutes (2008)....

...l home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale." § 61.077, Fla. Stat. (2008). See also Holitzner v. Holitzner, 920 So.2d 827, 828 (Fla. 4th DCA 2006). Here, there was no settlement agreement on credits or setoffs. In such a situation, section 61.077 allows the court to consider certain factors in determining the issue of credits or setoffs. The Amended Final Judgment does not reflect that the trial court evaluated any of the factors in section 61.077. The husband argues that the trial court's order was justified under the eighth factor of section 61.077, which provides, "Any other factor necessary to bring about equity and justice between the parties." We decline to read into the Amended Final Judgment such a finding and conclude that the trial court's decision concerning the Lugo property was not within the contemplation of the statute....

..."Reimbursement or credit for a party's payment of marital property-related expenses during separation is a matter of judicial discretion in light of all relevant circumstances." Stock v. Stock, 693 So.2d 1080, 1086 (Fla. 2d DCA 1997) (citing Knecht, 629 So.2d 883). See also § 61.077, Fla....

...ERSED. In all other respects, the final judgment of partition is AFFIRMED. BENTON and LEWIS, JJ., concur. NOTES [1] The trial court's authority to consider the equities of the situation in this partition action existed long prior to the enactment of section 61.077, Florida Statutes (1997), and Appellee/Cross-Appellant's argument on cross-appeal that section 61.077 does not apply has no bearing on the outcome of this case.

...e dissolution court would be reconsidering certain issues, such as possession of real property, that had been preliminarily addressed by the domestic violence court, and it provided that the dissolution court's ruling would take precedence. Further, section 61.077, Florida Statutes (2003), states that a party to a dissolution action is precluded from receiving any credits or setoffs upon the sale of the marital home unless "the parties' settlement agreement, final judgment of dissolution of marr...

...Former. Husband argues * that the trial court erred in failing to award him credits or reimbursements from the sale proceeds resulting, from his payment of Former Wife’s share of the aforementioned expenses associated with the former marital home. -Section 61.077, Florida Statutes (2015), provides: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final'judgment of dissolution of marriage, or final judgment equitably...

...The amended final judgment is silent as to whether Former Husband is entitled to any credits or setoffs upon'the salé of the. former marital home. Furthermore, the record does not establish that the trial court considered the factors enumerated in section.- 61.077 before 'entering judgment....

...See, e.g., Caine v. Caine, 152 So.3d 860, 862 (Fla. 1st DCA 2014) (remanding for clarification on entitlement to credits regarding marital home when final judgment, was .silent on matter and record did not indicate that trial court considered factors outlined in section 61.077); Swergold v....

...market rental value of the property.”). For this reason, we reject Mr. Sweet’s claim to a credit for rental value. However, we remand for the court to further address the setoffs and credits that will apply when the house is ultimately sold. See § 61.077 (providing factors to determine credits and setoffs upon sale of marital home)....

...Sweet must begin paying permanent alimony in an amount that is substantially less than required by the temporary support order. This arrangement gives credence to Mr. Sweet’s argument that he, in fact, is paying the mortgage and property expenses. See § 61.077(2) (requiring court to consider whether alimony is being awarded to cover expenses of marital home when determining credits and setoffs on sale of home)....

...to the amount of the mortgage payments"). Therefore, on remand, the trial court must make express findings regarding the reasonable rental value and credit the former husband's payments in excess of the fair rental value, if any, in accordance with section 61.077, Florida Statutes (2010)....

...The former wife argues that the trial court erred in failing to award her a future credit for the expenses she will pay on the taxes, insurance, and maintenance of the parties’ marital home during her exclusive use and possession. Because it is unclear whether the trial court considered the factors set forth in section 61.077, Florida Statutes (2012), we reverse and remand for findings consistent with this opinion....

...f majority. The final judgment also requires the former wife to pay all taxes and insurance on the marital residence. However, the final judgment is silent as to whether the former wife is entitled to any credits or set-offs on the sale of the home. Section 61.077 provides, in part: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing asse...

...d to any credits or setoffs upon the sale of the marital home. See Silverman v. Silverman, 940 So.2d 615, 618 (Fla. 2d DCA 2006) (remanding for the trial court to address whether the former wife was entitled to credits and setoffs in accordance with section 61.077); Holitzner *443 v....

...ce and taxes. "The standard of review for a trial court's apportioning assets and liabilities to the parties in a Florida dissolution of marriage proceeding is abuse of discretion." Cardella-Navarro v. Navarro, 992 So.2d 856, 858 (Fla. 3d DCA 2008). Section 61.077, Florida Statutes (2008), provides: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably di...

...ther one or both parties will experience a capital gains taxable event as a result of the sale of the marital home; and *1150 (8) Any other factor necessary to bring about equity and justice between the parties. The final judgment does not reference section 61.077 or outline the factors which the trial court used to equitably determine that the Former Husband would not receive any credits for expenses of the marital home for which he was alone made responsible. Thus, remand is necessary for clarification on Former Husband's entitlement to credits upon sale of the marital home. See, e.g., Silverman v. Silverman, 940 So.2d 615, 618 (Fla. 2d DCA 2006) (remanding for trial court to address factors in section 61.077 and whether wife was entitled to credits or setoffs upon sale of marital home, where final judgment was silent on matter); Holitzner v....

...Moreover, there are no findings in the Final Judgment relating to the rehabilitative alimony award as required by section 61.08, Florida Statutes (2007). Finally, there is nothing in the record regarding any credits to which Husband may be entitled for his mortgage payments on the marital home, pursuant to section 61.077, Florida Statutes (2007)....

...he mortgage and debt obligations, and adjust the amounts Husband is ordered to pay accordingly. The trial court should also determine whether Husband is entitled to credits or setoffs for his mortgage payments on the marital home, in accordance with section 61.077, Florida Statutes....

...usband. Finally, as stated earlier, we have reversed and remanded for entry of a final judgment awarding the wife exclusive use and possession of the marital home until the minor child reaches the age of majority. Therefore, upon remand, pursuant to section 61.077, Florida Statutes (2005), the trial court is to determine whether the husband is entitled to setoffs or credits upon the sale of the marital home....

...nt of dissolution of marriage dissolving the union between him and Karen Annette Caine, the appellee and former wife. The appellant raises four issues on appeal. Because the trial court’s order did not reflect that it considered (i) the factors in section 61.077, Florida Statutes (2010) when it denied the appellant’s request for a set off of the amount of the fair rental value of the former marital home and (ii) evidence of the reasonable availability of insurance, the cost thereof, or appel...

...hat the husband maintain a $100,000 life insurance policy, we reverse and remand for further proceedings. We affirm as to all other issues raised on appeal. With respect to the granting of credits or setoffs relating to the sale of the marital home, section 61.077, Florida Statutes (2010), provides: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably...

...esponsible for the utilities from July 1, 2013, the other expenses were evenly split between the parties, and she was now paying half the costs associated with the parties’ yacht. The statute is clear, however, that the eight factors enumerated in section 61.077 “shall be considered before determining the issue of credits or setoffs in [the] final judgment.” The record does not establish that the trial court considered those factors in the context of the credit/setoff issue, requiring remand for further proceedings. On remand, the trial court should specifically address the factors enumerated in section 61.077 and determine whether the former husband is entitled to a credit or setoff regarding the marital home....

...Law Offices of James Jean-Francois, P.A., and James Jean-Francois (Hollywood), for appellant. Marro Law, P.A., and Meaghan K. Marro, (Plantation), for appellee. Before LOGUE, C.J., and GORDO and LOBREE, JJ. PER CURIAM. Affirmed. § 61.077, Fla....

...ry. The final judgment’s silence as to the marital home’s disposition made the final judgment ambiguous on that issue. The final judgment lacked the specific determinations required for the disposition of a marital home under sections 61.075 and 61.077, Florida Statutes (2009). Section 61.075(3) provides, in pertinent part: (3) In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or m...

...(d) Any other findings necessary to advise the parties or the reviewing court of the trial court’s rationale for the distribution of marital assets and allocation of liabilities. § 61.075(3), Fla. Stat. (2009) (emphasis added). Further, section 61.077 provides: A party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties’ settlement agreement, final judgment of dissolution of marriage, or final judgment equitably d...

...federal income tax purposes; (7) Whether one or both parties will experience a capital gains taxable event as a result of the sale of the marital home; and (8) Any other factor necessary to bring about equity and justice between the parties. § 61.077, Fla....

...However, it was unclear how the proceeds from the marital home were to be distributed once the home was sold, and if the former wife was entitled to reimbursement as a co-tenant for all expenses relating to the home that she incurred during the period of her exclusive possession. Id. After citing section 61.077, we remanded to the trial court to address the issue of whether the wife was entitled to any credits or set-offs upon the marital home’s sale. Id. Similarly here, the final judgment neither valued the marital home under section 61.075, nor determined how the proceeds from the marital home were to be distributed once the home was sold under section 61.077, including consideration of the former wife having lived in the marital home until the parties’ youngest child turned eighteen....

...Thus, we must remand for the circuit court to permit the former wife to amend her supplemental petition to allege the final judgment’s ambiguity as to the marital home’s disposition, so the circuit court may value the marital home under section 61.075(3) and apply the section 61.077 factors to determine whether the former wife was entitled to any credits or set-offs upon the marital home’s sale. We disagree with the circuit court’s statements that equitable distribution is non-modifiable, especially when t...

...We remand for the circuit court to grant the former wife’s motion to amend the supplemental petition to allege the final judgment’s ambiguity as to the marital home’s disposition, so the circuit court may value the marital home under section 61.075(3) and apply the section 61.077 factors to determine whether the former wife was entitled to any credits or set-offs upon the marital home’s sale. Reversed and remanded for proceedings consistent with this opinion. GROSS and MAY, JJ., concur....