09-2045 LINDA JOYCE PUSKAR, former wife, v. ANTHONY PAUL PUSKAR, former husband

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State: Florida

Court: Florida First District Court

Docket No: 09-2045

Case Date: 03/17/2010

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA LINDA JOYCE PUSKAR, former wife, Appellant, v. ANTHONY PAUL PUSKAR, former husband, Appellee. _____________________________/ Opinion filed March 17, 2010. An appeal from the Circuit Court for Clay County. Dan Wilensky, Judge. Neal Betancourt of Rotchford & Betancourt, P.A., Jacksonville, for Appellant. Holly E. Fulton of Head, Moss & Fulton, P.A., Fleming Island, for Appellee. CASE NO. 1D09-2045 NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

KAHN, J. Appellant, Linda Joyce Puskar, seeks review of a March 2009 final judgment of dissolution of marriage. She contends the trial court erred in failing to designate any portion of the couple's Orange Park property as non-marital for purposes of equitable distribution. Appellant also alleges error in the court's

treatment of $63,000 in the equitable distribution plan.

We affirm the latter

finding, but reverse and remand as to the characterization of the subject real property. FACTUAL & PROCEDURAL BACKGROUND The Puskar union lasted nearly 13 years before the parties separated. In a dissolution petition, the husband asked for an equitable distribution of the parties' marital assets. Of the parties' four properties, Mr. Puskar claimed a special equity in the residence located at 1217 Bee Street North, in Orange Park. This parcel, described during at the final hearing simply as the "Bear Run" estate, was owned jointly by appellant and her father before the parties married. In her answer to the petition, appellant claimed that the Bear Run home was solely her premarital asset, thus entitling her to all proceeds from the sale of the property. Much testimony addressed the Bear Run property. Appellant recalled that title to Bear Run passed to her after her father's death. Appellee stated he moved into the Bear Run residence with appellant in the summer of 1993, ahead of their marriage in October of that year. Mrs. Puskar denied that the parties lived together at Bear Run before the marriage, but explained that appellee constructed an addition to the home around October or November 1992. Appellant testified she paid her future husband $8,000 for the construction labor.

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The parties also rented the property to third parties during the course of the marriage. Mr. Puskar claimed that Bear Run generated a net income of $42,513 during those years, as reflected in the couple's joint tax returns. He stated that the parties used marital funds to cover the cost of debt, repairs, taxes, and miscellaneous expenses required to maintain the property. Citing another rental property in Crescent Beach, he asserted that the wife controlled the bank accounts into which the rental incomes were deposited. The wife confirmed that she alone controlled and administered rental incomes from the Bear Run and Crescent Beach properties, maintaining a separate account for each parcel. In September 2006, after appellee filed the petition for dissolution of marriage, Mrs. Puskar sold the Bear Run estate. Appellant testified she deposited the proceeds of sale ($124,000 after taxes and expenses) into a separate VyStar account on advice of counsel. The trial court entered a final judgment of dissolution of marriage on March 29, 2009. The order found that appellee moved into the Bear Run home around July 1993, and "made numerous repairs to the property over the years of the marriage." Though recognizing that Bear Run was originally titled in

appellant's name, the order determined that $165,000--the full sale price of the property--should be credited on Mrs. Puskar's side of the equitable distribution ledger and not set apart as non-marital. These sale proceeds were, the court reasoned, "co-mingled" with marital funds, because appellant deposited those 3

funds "into . . . accounts which also contained marital sums." The trial court accordingly classified the proceeds as marital. ANALYSIS We review de novo identification of an asset as marital or non-marital. See Farrior v. Farrior, 736 So. 2d 1177, 1179 (Fla. 1999). Where mixed questions of law and fact arise, we defer to the trial court's factual findings to the extent they are supported by competent, substantial evidence, but review legal conclusions de novo. Batur v. Signature Props. of Nw. Fla., Inc., 903 So. 2d 985, 995 (Fla. 1st DCA 2005). Pursuant to section 61.075(5)(b), Florida Statutes (2006), non-marital assets include those acquired by either party prior to the marriage. For present purposes, the cut-off date for determining the marital status of assets is the date of filing the petition for dissolution. See

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