Posted by Nydia Streets of Streets Law in Florida Divorce

Sometimes mistakes can happen in your Florida final judgment of divorce. These mistakes can usually be corrected via a motion for rehearing and ultimately, an appeal to a higher court. To protect your appellate rights, it is important to take the correct steps on the trial level to preserve arguments for appeal. This was one issue in the case Gupta v. Gupta, 5D20-536 (Fla. 5th DCA October 1, 2021).

Shortly before the former husband filed a petition for divorce, the former wife relocated to Texas with the parties’ minor child. During the pendency of the case, the former husband continued to reside in the martial home while the former wife continued to make the mortgage payments. The trial court eventually entered a temporary order giving the former wife exclusive use and possession of the home and giving her full authority to take all steps necessary to sell the home. The former husband objected that this was improper because neither party had pled for a partition of the home. The former wife thereafter amended her petition to include a count for partition. The case proceeded to trial and the lower court entered a final judgment which included a provision awarding the home to the former wife to facilitate a sale. The former husband appealed.

The appellate court noted that the former husband brought up issues on appeal regarding the sale of the home which he did not first raise on the trial level. The court therefore ruled these arguments were not preserved for appeal because the former husband did not give the lower court a chance to address them. Moving on to the former husband’s appeal of the temporary order and his argument that the court had no jurisdiction to order a sale at that time because neither party had pled for partition, the appellate court held “[W]e do not reach the merits of this argument for another reason - the final judgment states specifically that it ‘shall supersede the October 2, 2019 [temporary order].’ See Schumaker v. Schumaker, 931 So. 2d 271, 274 (Fla. 5th DCA 2006) (‘Once a final judgment of dissolution is rendered, the final judgment supersedes any prior temporary orders.’). Additionally, while the Former Husband complains that the temporary order contains a suspended coercive sanction, it is unclear that such sanction has ever been imposed. Thus, the issue is not properly before this Court (internal citation omitted).”

Next, the court examined the former husband’s challenge to the trial court’s imputation of income to him. The former husband testified at trial that he could live with his family in India rent-free earning about $500 per month. However, if he got a job far away from his family, he could earn $1,000.00 per month. Using this testimony, the trial court imputed $2,000.00 of income per month to the former husband, reasoning that $1,000 of that was in-kind income in the form of rent-free living and the remaining $1,000 was the highest level of income he could earn. The appellate court reversed this imputation holding “There are two issues with imputing $1,000 per month of in-kind income to Former Husband based upon his ability to live with his family in India for free. First, the record does not contain any evidence regarding rental values, thereby prohibiting the lower court from calculating the amount of in-kind income to impute to Former Husband with any certainty. Second, the record does not contain any evidence to support a finding that the Former Husband would be able to live for free while earning $1,000 per month in India.”

The last issue substantively considered by the appellate court was an issue with equitable distribution. The former husband argued it was error for the trial court to fail to consider transfer costs of a condominium awarded to the former husband which was located in India. The appellate court held the trial court was required to consider the 8% title transfer fee in the equitable distribution award. Additionally, as to a line of credit opened by the former wife’s father and paid down by the former husband’s family subsequent to the parties’ separation, the court held “the Former Husband is entitled to a credit and on remand, the lower court should consider the value of the line of credit connected to a CD from India in reformulating the equitable distribution scheme.”

This case illustrates how several errors can occur in a divorce case which can be costly to fix on appeal. Schedule a consultation with a Miami divorce attorney to go over your options in your case.