PUKIN v. PUKIN (2023)

Appellant, Carl Pukin, and Appellee, Kristen Pukin, were married on June 30, 2007. Two children were born during the marriage and remain minors. On June 25, 2019, Appellant filed a Petition for Dissolution of Marriage and Partition. Thereafter, Appellee filed an Answer to Husband's Petition for Dissolution of Marriage and Partition and Counter-Petition for Dissolution of Marriage with Minor Children and Other Relief, and Appellant filed an Answer thereto. A trial was held on the parties' petitions before a general magistrate over the course of five separate days between April 28, 2021, and September 8, 2021. On December 2, 2021, the magistrate submitted his “Report and Recommended Final Judgment of Dissolution of Marriage with Minor Children” with attachments including a parenting plan, equitable distribution worksheet, and child support guidelines worksheets. On December 15, 2021, the trial court entered the Final Judgment of Dissolution of Marriage and Order Adopting Report of Magistrate, ratifying, approving, and incorporating the report with its attachments and ordering the parties' compliance therewith. Appellant and Appellee both filed a motion for rehearing, and the trial court summarily denied the parties' respective motions. This appeal followed ¹ . Three of the eleven issues raised in this appeal require us to reverse the final judgment in part and remand to the trial court for further proceedings.

I. Failing to Identify, Value and Distribute All Marital Liabilities

Appellant claims the trial court erred when it failed to identify, value, and distribute all marital liabilities; specifically, a promissory note in the amount of $11,500 executed during the parties' marriage and owing to Appellant's father. Section 61.075(6), Florida Statutes (2021), provides in pertinent part:

(a) “Marital assets and liabilities” include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them.

․

(b) “Nonmarital assets and liabilities” include: 1. Assets acquired and liabilities incurred by either party prior to the marriage, and assets acquired and liabilities incurred in exchange for such assets and liabilities; 2. Assets acquired separately by either party by noninterspousal gift, bequest, devise, or descent, and assets acquired in exchange for such assets.

Section 61.075(3) further provides that:

“The distribution of all marital assets and liabilities, whether equal or unequal, shall include specific written findings of fact as to the following: ․ (c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability; (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.”

“A final judgment that fails to identify and value all of the parties' marital assets and liabilities and that fails to distribute them equitably between the parties must be reversed.” Tritschler v. Tritschler, 273 So. 3d 1161, 1163 (Fla. 2d DCA 2019); Heiny v. Heiny, 113 So. 3d 897, 901 (Fla. 2d DCA 2013) (“A trial court's failure to include all marital assets or debts in an equitable distribution plan violates section 61.075, Florida Statutes, and requires reversal.”).

During trial, Appellant testified that the parties owed his father $11,500 for a loan his father gave them for the parties' 2012 taxes. At trial, Appellant testified that this loan had not been paid off, and that the balance due and owing was still $11,500. Appellee did not offer any testimony or evidence to rebut this testimony aside from the following statement: “That's kind of convenient, loans from his parents and I now have to pay half. My parents have helped me financially and they just did it because they are my parents.” The final judgment does not address this debt at all. Accordingly, we reverse and remand to the trial court to determine if this loan is a marital liability, and if so, to value and distribute it appropriately.

II. Failing to Provide for Unilateral Parental Consent for Mental Health Treatment

Appellant argues the trial court erred in not providing unilateral parental consent for mental health treatment for the minor children in the final judgment. Section 61.13(2)(b)(3)(a), Florida Statutes (2021), provides as follows: “[i]f the court orders shared parental responsibility over health care decisions, the parenting plan must provide that either parent may consent to mental health treatment for the child.” The final judgment ordered shared parental responsibility over health care decisions; however, the parenting plan fails to provide that either parent may consent to mental health treatment for the children. As such, remand is necessary for the limited purpose of including this provision in the final judgment. See Lennon v. Lennon, 264 So. 3d 1084, 1085 (Fla. 2d DCA 2019) (“[W]e remand for the limited purpose of having the trial court include in the final judgment a provision that either parent alone may provide consent for a child to receive mental health treatment.”).

III. Basing Findings of the Parties' Gross Incomes for Purposes of Child Support on the Most Recent Financial Affidavits

In the final judgment, the trial court found, based on the parties' most recent financial affidavits, that Appellee had a gross yearly income of $56,160, and that Appellant had a gross yearly income of $70,000. Appellant's most recent financial affidavit was dated July 7, 2021, and reflects an annual income of $70,000, and although it was discussed during trial, it was not admitted into evidence. The only financial affidavit admitted into evidence by either party was Appellant's original financial affidavit dated August 28, 2019. However, Appellant testified his salary from his new employment was $70,000 per year. Accordingly, even if it was error for the trial court to base its findings on the Appellant's most recent financial affidavit, such error was harmless as the resulting child support calculations from Appellant's testimony would be the same.

Appellee, on the other hand, filed her most recent financial affidavit on February 5, 2020—more than a year before the first day of trial—and it reflects a gross income of $56,160. Appellee testified at trial, however, that she earned gross wages of $65,845 in the year 2019 and $61,311.71 in 2020. “A financial affidavit is not competent, substantial evidence of a party's income if the party testifies that the financial affidavit is not accurate.” Reese v. Reese, ––– So.3d ––––, 2023 WL 3400377 (Fla. 6th DCA May 12, 2023) (first citing Addie v. Coale, 120 So. 3d 44, 46 (Fla. 4th DCA 2013); and then citing Fiala v. Fiala, 333 So. 3d 215, 222 (Fla. 4th DCA 2022)). Consequently, the trial court's finding that Appellee has a gross yearly income of $56,160 is not supported by competent and substantial evidence. Accordingly, we reverse and remand with instructions to determine the parties' gross incomes based on record evidence and recalculate child support accordingly.

We affirm the final judgment as to the remaining issues without further comment.

AFFIRMED in part; REVERSED in part; and REMANDED.

FOOTNOTES

1.   This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.

STARGEL, J.

COHEN and MIZE, JJ., concur.