NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2005 MIGUEL HERRERA, Appellant/Cross-appellee, vs. BRENDA HERRERA, Appellee/Cross-appellant. ** ** ** ** ** ** Opinion filed February 16, 2005. An Appeal from the Circuit Court for Miami-Dade County, Robert N. Scola, Jr., Judge. Greene, Smith & Associates and Cynthia L. Greene; Markus & Winter, for appellant/cross-appellee. Keith W. Saks; Slesnick & Casey and James C. Casey, for appellee/cross-appellant. Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ. CORTIÑAS, Judge. The former husband, Miguel Herrera, appeals and the former wife, Brenda Herrera, cross-appeals from a final judgment of LOWER TRIBUNAL NO. 02-26257 CASE NO. 3D03-3007
dissolution of marriage. and remand. The husband, Hospital. former an wife, a
We affirm, in part; reverse, in part,
Registered doctor,
Nurse, while
met
the at
former Baptist
emergency
room
working
The parties were engaged in 1993.
On February 11,
1994, while the former wife was pregnant with the parties’ first child, the parties executed a prenuptial agreement and were
subsequently married on February 19, 1994.
During the marriage,
the former wife stayed home and cared for the parties’ three minor children. On April 15, 2002, the parties separated, and on September 23, 2002, the former husband filed a Petition for Dissolution of Marriage. The former wife filed a counter-petition seeking
dissolution and affirmative relief in the form of reformation, rescission or modification of the prenuptial agreement. The
former wife asserted that the agreement was obtained by the former husband as a result of undue influence, coercion, threat, duress, and intimidation. The former wife also alleged that the
prenuptial agreement was unfair, lacked mutuality, and did not contemplate or make provisions for the eventuality of children being born of the marriage. On September 18 and September 26, 2003, a trial was
conducted. judgment
On October 8, 2003, the trial court entered final finding that the former wife entered into the
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prenuptial agreement freely, knowingly, and voluntarily. final judgment of awarded assets, each party the $305,041 enhanced in
The
equitable of the
distribution
including
value
former husband’s premarital home.
It also named the former wife
as the primary residential parent of the three minor children, awarded the former wife exclusive use and possession of the premarital home until the youngest child reaches the age of majority, awarded the former wife monthly child support of
$3,208, and ordered rehabilitative alimony of $1,000 per month for twelve months pursuant to the terms of the prenuptial
agreement.
The former husband appeals, and the former wife
cross-appeals. The former husband contends that the trial court abused its discretion by finding that his premarital home had enhanced in value by $100,000 and that such enhancement was a marital asset. We disagree. Section 61.075(5)(a)(2), Florida Statutes (2002), provides, in pertinent in part, value that and “Marital assets” of include “[t]he assets
enhancement
appreciation
nonmarital
resulting . . . from the contribution to or expenditure thereon of marital funds or other forms of marital assets or both.” In the instant case, the trial court found that the former husband’s premarital home had enhanced in value by $100,000. Contrary to the former husband’s assertion, this finding is
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supported by competent, substantial evidence where the former wife testified that the former husband expended $90,000 in
marital funds to pay off the existing mortgage on said property and built an addition, a den, onto the premarital home. See
Adkins v. Adkins, 650 So. 2d 61, 67 (Fla. 3d DCA 1994); see also Gaetani-Slade v. Slade, 852 So. 2d 343, 346 (Fla. 1st DCA 2003). Further, the former husband failed to meet his burden of showing that the funds used for these expenditures were non-marital. Jahnke v. Jahnke, 804 So. 2d 513, 517 (Fla. 3d DCA 2001);
Adkins, 650 So. 2d at 68.
Consequently, the resulting increased
equity in the property is a marital asset subject to equitable distribution. Perrin v. Perrin, 795 So. 2d 1023 (Fla. 3d DCA
2001); Cornette v. Cornette, 704 So. 2d 667, 668 (Fla. 2d DCA 1998). A review of the equitable distribution detailed in the
final judgment shows that the trial court properly divided the increased equity in the value of the former husband’s premarital home equally between the parties. equitable distribution award. Next, the former husband contends that the trial court Accordingly, we affirm the
erred by granting the former wife exclusive use and possession of the former husband’s premarital home until the youngest child reaches the age of majority. We agree.
The trial court granted the former wife exclusive use and possession of the former husband’s home under the section of the
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order
dealing
with
equitable
distribution. (2002),
However,
Section
61.075(5)(b),
Florida
Statutes
defines
“Nonmarital
assets,” in part, as “[a]ssets acquired marriage . . . .”
. . . prior to the
A non-marital asset may not be conveyed to a
non-owner spouse as equitable distribution absent an agreement. Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA), review
denied, 846 So. 2d 1148 (Fla. 2003); Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA 2000). Thus, because the former husband
acquired title to the home prior to the marriage and kept it titled in his name, the non-marital property was not subject to equitable distribution. To the extent that the trial court may have awarded the former wife exclusive use and possession of the former husband’s home as an incident of the other party’s child support
obligation, the trial court did not make the necessary findings to support such an award. When considering non-marital real
property, a court may not award exclusive possession of such property section to the other spouse absent a finding pursuant the to
61.30(13),
Florida
Statutes
(2002),
that
non-
custodial parent’s recurring income is insufficient to meet his child support obligation. Mitchell v. Mitchell, 841 So. 2d 564,
569 (Fla. 2d DCA 2003); Dyer v. Dyer, 658 So. 2d 148, 149 (Fla. 4th DCA 1995). Accordingly, we reverse the award of exclusive
use and possession of the premarital home to the former wife.
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In his last issue on appeal, the former husband alleges several errors with regard to the calculation of child support. The first alleged error is rendered moot by the reversal of the award of exclusive use and possession of the former husband’s premarital home to the former wife. Next, the former husband
challenges the award of “child care costs” for items described in the former wife’s financial affidavit, such as babysitters, aftercare, and summer camp. where the trial court We find that this award was error to make the proper statutory
failed
findings that these costs were attributable to “employment, job search, or education calculated to result in employment or
enhance income of current employment of either parent,” pursuant to section 61.30(7), Florida Statutes (2002). Accordingly, we
reverse and remand for reconsideration of these costs under the statute. Lastly, the former husband contends that the trial court abused its discretion by requiring him to pay private school tuition in addition to his guideline child support obligation without making express factual findings supporting the
departure.
We disagree.
A court may order the parents to pay for private school tuition where they have the ability to pay, and such attendance is in the child’s is best interest, if they agree that of such
attendance
within
their
customary
standard
living.
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Forrest v. Ron, 821 So. 2d 1163, 1166 (Fla. 3d DCA 2002).
In
this case, it is undisputed that the parties agreed to provide private school for their children until completion of either the second or third grade. until the completion Whether they agreed on private school of the second grade as opposed to
completion of the third grade is a question of credibility, and we hold that the trial court did not abuse its discretion in finding that the parties agreed to private school until each child completes the third grade. Therefore, we affirm this
portion of the child support obligation. On cross-appeal, the former wife raises three issues. find that all of them lack merit. We
First, the former wife’s
contention that the pre-nuptial agreement should be set aside because it was a product of duress is unsubstantiated by the record. The trial court’s decision to uphold the agreement is A review of the
supported by competent, substantial evidence.
record shows that the wife was represented by counsel of her choice and that the former wife’s counsel actively participated in the negotiations of the agreement. Next, we find that the
former wife’s contention that the attorney-client privilege was violated when her counsel who represented her during the
negotiations of the prenuptial agreement testified below is also without merit as questioning was limited to issues such as how she was retained, identification of “working drafts” of the
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agreement,
and
the
process
of
the
negotiations.
See
§
90.502(1)(c), Fla. Stat. (2002); Jenney v. Airdata Wiman, Inc., 846 So. 2d 664 (Fla. 2d DCA 2003). The former wife’s counsel
was not asked about confidential communications that the wife had with her. Lastly, the former wife’s contention that the
hypothetical questions posed to the attorney who represented her during the negotiations of the prenuptial agreement were
improper is without merit. For these reasons, we affirm all the issues raised by the former wife in her cross-appeal. Affirmed, in part; reversed, in part, and remanded.
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