Dissolution of marriage — Equitable distribution — Marital home — Marital gift presumption — Valuation — Trial court erred in unequally distributing marital home based on former husband’s assertion that the down payment on the home was made using funds former husband gratuitously received from his former employer during the marriage as a reward for former husband’s services prior to the marriage — Husband’s testimony alone that down payment was made with nonmarital funds was insufficient to overcome marital gift presumption — Trial court abused its discretion in valuing marital home based on an earlier appraisal rather than an appraisal which was completed closer to trial where record does not reflect that the home’s appreciation arose from any source other than market forces

DONNA ERDMAN, Appellant, v. ROBERT D. ERDMAN, Appellee. 5th District. Case No. 5D18-3043. September 13, 2019. Appeal from the Circuit Court for Brevard County, Charlie Crawford, Judge. Counsel: Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant. Elizabeth R. McHugh and J. Garry Rooney, of Rooney & Rooney, P.A., Vero Beach, for Appellee.

(COHEN, J.) Donna Erdman (“Former Wife”) appeals the second amended final judgment of dissolution dissolving her marriage to Robert D. Erdman (“Former Husband”). Former Wife argues that the trial court: 1) erred in unequally distributing the marital home; 2) abused its discretion in valuing the marital home; and 3) abused its discretion in establishing a payment scheme for Former Husband’s equalizing payment. We affirm in part and reverse in part.

The parties married in June 2007. In January 2016, Former Husband filed a petition for dissolution. At that time, the parties’ assets included one jointly owned property, which served as the marital home. In his petition, Former Husband requested an unequal distribution of the marital home, alleging that he purchased it with nonmarital funds.

Trial began in May 2017.¹ Former Husband testified that he provided $80,000 for the down payment on the marital home using funds he gratuitously received during the marriage from his former employer as a reward for his services prior to the marriage. The record reflects that the seller transferred the deed to the marital home to Former Husband and Former Wife in September 2008. Former Wife argued that the $80,000 was presumptively “a gift to the marriage” because Former Husband used the funds to purchase the home for the parties as tenants by the entireties, thus qualifying the entire marital home as a marital asset. Former Husband did not provide testimony or evidence explaining why the funds were not intended as a gift to Former Wife. In the second amended final judgment, the trial court classified $80,000 of the value of the marital home as a nonmarital down payment. On appeal, Former Wife argues that Former Husband failed to overcome the marital gift presumption. We agree.

“All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset.” § 61.075(6)(a)2., Fla. Stat. (2016). To overcome this presumption, the party asserting that the subject property, or a portion thereof, is a nonmarital asset has the burden of proving that no gift to the other party was intended. See id.; Robertson v. Robertson, 593 So. 2d 491, 494 (Fla. 1991). “[S]tanding alone, evidence that one spouse provided nonmarital funds to purchase a marital home is insufficient to prove that the spouse did not intend a gift.” David v. David, 58 So. 3d 336, 338 (Fla. 5th DCA 2011) (citing Cintron v. King, 961 So. 2d 1010 (Fla. 4th DCA 2007)). If the subject property is jointly titled, and the parties’ conduct during the marriage demonstrates joint ownership, the party asserting that no gift was intended must do more than make an “unsubstantiated claim, raised for the first time during a dissolution proceeding.” Cattaneo v. Cattaneo, 803 So. 2d 889, 890-91 (Fla. 5th DCA 2002) (quoting Rutland v. Rutland, 652 So. 2d 404, 406 (Fla. 5th DCA 1995)). Further, “[i]t is irrelevant how the funds were received or how much each party contributed.” Jurasek v. Jurasek, 67 So. 3d 1210, 1212 (Fla. 3d DCA 2011) (citing David, 58 So. 3d at 336).

Here, Former Husband failed to prove that the $80,000 down payment on the jointly titled marital home was not intended as a gift to Former Wife. His testimony alone that the down payment was made with nonmarital funds was insufficient to overcome the marital gift presumption. David, 58 So. 3d at 338; see also Jurasek, 67 So. 3d at 1212 (reversing unequal distribution award in favor of former husband who used funds from inheritance to purchase marital home but “never explained why or how the act of jointly titling the home purchased with those funds constituted anything other than a gift from him to the [former] wife”). Accordingly, we find that the trial court erred in awarding Former Husband an $80,000 credit in the marital home.

Former Wife also argues that the trial court abused its discretion in valuing the marital home based on a May 2016 appraisal rather than a February 2017 appraisal because the home passively appreciated after Former Husband filed his petition for dissolution.

“The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances.” § 61.075(7), Fla. Stat. (2018). “[W]hen marital assets have appreciated passively since the filing date, the date of the final hearing generally should be used. When marital assets have appreciated due to the work efforts of either party since the filing date, the filing date should be used.” Parry v. Parry, 933 So. 2d 9, 14 (Fla. 2d DCA 2006) (quoting Victoria M. Ho & James Rhett Brigman, A Seven-Step Analysis of Equitable Distribution in Florida Part I: Classification and Valuation of Marital Property, 73 FLA. BAR. J. 62, 67 (May 1999)).

In May 2016, the marital home was appraised at $192,000, but in February 2017, three months before trial, it was appraised at $220,000. The record does not reflect that this $28,000 increase arose from any source other than market forces. The trial court awarded Former Husband the marital home, and thus he received the entire value of the passive appreciation. We find that this resulted in an inequitable benefit to Former Husband, such that the trial court abused its discretion in valuing the home based on the May 2016 appraisal rather than the February 2017 appraisal, which was completed closer to the date of trial.

Accordingly, we remand for a recalculation of the equitable distribution award in light of this opinion. Because we must remand, we decline to address Former Wife’s claim regarding the payment scheme for Former Husband’s equalizing payment.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED. (GROSSHANS, J., and JACOBUS, B.W., Senior Judge, concur.)

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¹We note that the credibility of both parties in this action was suspect, particularly that of Former Wife, who attempted to perpetrate a fraud on the court by falsely claiming to have cancer. “Misconduct of a party, however, will not justify an unequal distribution of assets absent evidence demonstrating a sufficient relationship between the misconduct and the dissipation of assets.” Murray v. Murray, 636 So. 2d 536, 538 (Fla. 1st DCA 1994) (citations omitted). The trial court addressed Former Wife’s fraud on the court in terms of attorney’s fees.