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ROMANO v. ROMANO

District Court of Appeal of Florida, Fourth District.

Feb 16, 1994

Judgment

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Summary of Opinion: Romano v. Romano, No. 92-2793 (Fla. 4th DCA Feb. 16, 1994)

Factual and Procedural Background

The parties, Carol L. Romano (former wife) and Paul J. Romano (former husband), were married in late September 1987 and separated in April 1991 after about three and a half years of cohabitation. No children were born of the marriage. Paul Romano was employed by two corporations in which he was the sole stockholder; the former wife did not work. During the marriage the parties purchased a marital home in Broward County. The home was purchased for $179,000 with $29,000 of the down payment from the husband's nonmarital funds and $7,000 from the wife's nonmarital funds.

The wife filed for dissolution in July 1991. During the proceedings the husband was ordered to pay $1,000 per month temporary support and various ongoing debts (including the wife's car payments and mortgage payments). At trial the parties stipulated that, as of September 5, 1991, marital assets totalled approximately $505,203 (excluding the home), with certain agreed reductions: $15,000 premarital funds contributed by the husband; $22,000 previously distributed equally to the parties; and approximately $50,000 paid by the husband for tax liability on marital income. They also stipulated to selling the marital home for $199,000 and, under the Landay formula, that the husband would receive 56% of the net proceeds and the wife 44%.

At trial the husband admitted to extramarital spending (a loan of $2,240 and $600 for veterinary bills, plus other expenses) on another woman while separated, and acknowledged an annuity with a $5,190 cancellation value. The parties presented conflicting evidence about corporate receivables and payables associated with the husband's business.

The trial court, in its final judgment, began with $505,000 as the marital asset pool (excluding the home) and reduced that figure to $330,800 by applying certain deductions (including the items stipulated above and other debts). The court then awarded 70% ($231,560) to the husband and 30% ($99,240) to the wife. The court listed several factors to support the unequal division (no minor children, the wife's not caring for husband's children from a prior marriage, and that the husband had paid $65,000 in temporary support). The court also reserved ruling to clarify the parties' stipulation as to distribution of the home's net sale proceeds.

The wife appealed the final judgment and the husband cross-appealed. The district court reviewed the record, found multiple errors in the trial court's handling of classification and distribution issues, and issued the opinion summarized here.

Legal Issues Presented

Whether the trial court properly identified marital and nonmarital assets as required by section 61.075(3), Florida Statutes (1991).
Whether the trial court erred in refusing to credit the former wife for marital funds that the former husband expended on his mistress (alleged dissipation of marital assets).
Whether the trial court erred in refusing to allocate to the wife a portion of the corporate accounts/payables or otherwise treat corporate receivables/payables consistent with the record.
Whether the trial court's deviation from an equal division of marital assets (70%/30%) was justified by the factors it relied upon.
On cross-appeal: How the parties' stipulation applying the Landay formula should be applied to the proceeds of sale of the marital home (i.e., whether deductions for mortgage payoffs, closing costs, and commissions are made before or after applying the stipulated percentages).
Whether appellate attorney's fees and costs should be awarded to the former wife, and the proper procedure to determine a reasonable amount.

Arguments of the Parties

Appellant (Former Wife)'s Arguments

The trial court failed to identify marital versus nonmarital assets (e.g., the husband's annuity) as required by statute.
The court should have credited her for marital funds the husband expended on his mistress (dissipation of marital assets) because those expenditures reduced the marital estate.
The court erred in not allocating to her a credit for the corporate receivables portion of the husband's claimed premarital contribution and in allowing the husband to benefit from corporate payables paid with marital funds.
The unequal distribution (70% to husband, 30% to wife) was not supported by adequate factors and therefore was error; she requested equal distribution.
She sought appellate costs and attorney's fees and requested the court to order an evidentiary hearing to determine a reasonable award based on need and ability to pay.

Appellee/Cross-Appellant (Former Husband)'s Arguments

He questioned the entitlement to credits for expenditures on the mistress (implicitly contesting dissipation or relevance of expenditures made while separated).
On cross-appeal, he contended the trial court failed to specify how proceeds of sale of the marital home should be allocated after applying the parties' stipulated percentages; he argued (as he interpreted Landay) that he was entitled to 56% of the $199,000 sales price, subject to deduction only of his one-half share of mortgage, commission and closing costs (i.e., a particular logistics of applying Landay to sale proceeds).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Landay v. Landay, 429 So.2d 1197 (Fla. 1983)	Established a formula for "special equity" when one spouse contributes nonmarital funds to purchase tenancy by the entireties property: contributing spouse receives automatic one-half share plus one-half of the ratio of that spouse's contribution to the entire consideration.	The parties had stipulated to apply the Landay formula to distribution of the marital home's proceeds. The court examined competing interpretations of how the formula should be applied to sale proceeds and ultimately held the husband was bound by the plain language of the parties' stipulation: deduct costs of sale, closing costs, and mortgage payoff to reach net proceeds, then apply the stipulated percentages.
Eckroade v. Eckroade, 570 So.2d 1347 (Fla. 3d DCA 1990)	Supports the principle that dissipation of marital assets can be a basis for unequal division or assignment of the dissipated amounts to the spending spouse.	The court cited Eckroade as authority that marital misconduct resulting in depletion of marital assets can justify crediting the non-spending spouse; used to support reversal of the trial court's refusal to credit the wife for funds the husband expended on his mistress.
Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. 3d DCA 1992)	Same principle as Eckroade: dissipation of marital assets supports unequal division or assignment to spending spouse.	Used with other authorities to support the proposition that the husband's expenditures should be charged against him as dissipation, and the wife was entitled to credit.
Poe v. Poe, 522 So.2d 50 (Fla. 5th DCA 1988)	Further authority that dissipation of marital assets may be considered in equitable distribution.	Cited as part of the body of precedent establishing dissipation as a ground for unequal distribution or assignment; court relied on this line of cases to find error in refusing to credit the wife.
Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990)	Provides a definition of "dissipation" in domestic relations context: use of marital funds for own benefit unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.	The court quoted Gentile's definition (which itself quoted Hellwig) to explain that expenditures made while separated favor awarding the non-spending spouse a credit; applied that definition to the husband's admitted expenditures while separated.
Hellwig v. Hellwig, 100 Ill. App.3d 452, 426 N.E.2d 1087 (1981)	Source of the definition of "dissipation" quoted in Gentile.	Quoted indirectly via Gentile; the court relied on the definition as adopted in Gentile when evaluating whether the husband's expenditures constituted dissipation.
Bobb v. Bobb, 552 So.2d 334 (Fla. 4th DCA 1989)	Holds that distribution of marital assets should ordinarily be equal unless relevant factors justify disparate treatment.	Cited to support the proposition that unequal division requires adequate justification; used to conclude the trial court's 70/30 split was not properly supported.
Ervin v. Ervin, 553 So.2d 230 (Fla. 1st DCA 1989)	Also supports that equitable distribution should be equal absent factors justifying deviation.	Used with Bobb to show established principle that equality is the default in marital asset division unless specific factors warrant otherwise.
Buttner v. Buttner, 484 So.2d 1265 (Fla. 4th DCA 1986), rev. denied 494 So.2d 1149	Holds that a spouse's homemaking and child-rearing contributions constitute sufficient justification for an award of a portion of marital assets even if the other spouse was the primary wage earner.	The court relied on Buttner to reject the trial court's apparent rationale that the wife's homemaking role and the absence of minor children justified denying her a fair share; the court used Buttner to support remand for equal distribution absent extraordinary services by the husband.
Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA 1982)	Reversed an extreme unequal (75%–25%) split where both parties shared equally in responsibilities and benefits of the marriage.	Invoked as precedent that large disparities in distribution cannot stand where both parties contributed in traditional ways; used to support reversal of the unequal split in the present case.
Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980)	Addresses allocation of attorney's fees and how payments should be treated in equitable distribution contexts.	The court cited Canakaris to state that the trial court should not have credited the husband for that portion of the $65,000 temporary support which covered the wife's attorney's fees; used to adjust the accounting of support payments.
Griffiths v. Griffiths, 563 So.2d 773 (Fla. 3d DCA 1990)	One approach to applying Landay: applying the special equity calculation to total proceeds of sale (with some courts subtracting mortgage indebtedness differently).	Cited as one of the cases interpreting the logistics of applying Landay to sale proceeds; the court discussed Griffiths when evaluating competing methods but ultimately enforced the parties' stipulation on how to compute net proceeds.
Donaldson v. Donaldson, 481 So.2d 101 (Fla. 2d DCA 1986)	Interpreted Landay as applying to the "total proceeds of sale" after deduction of necessary and reasonable expenses incident to sale.	Discussed as authority that applies the Landay formula to proceeds after reasonable sale expenses are deducted; the court contrasted these cases with the parties' own stipulation and enforced the parties' express language.
Cochran v. Cochran, 560 So.2d 269 (Fla. 5th DCA 1990)	Appears to have followed Donaldson and Griffiths in its treatment of Landay calculations.	Referenced as part of the inconsistent line of cases concerning the mechanics of applying Landay; the court cited these authorities while concluding the parties' stipulation controlled the result here.
Davis v. Davis, 584 So.2d 1117 (Fla. 1st DCA 1991)	Provides for an evidentiary hearing to determine reasonable appellate attorney's fees based upon present need and ability to pay.	The court provisionally granted the former wife's motion for appellate fees and directed the trial court to conduct an evidentiary hearing consistent with Davis to determine the appropriate amount.

Court's Reasoning and Analysis

The district court analyzed the trial court's disposition in several distinct steps:

Classification of assets: The court found the trial court failed to comply with section 61.075(3), Florida Statutes (1991), which requires clear identification of marital and nonmarital assets and designation of which spouse shall receive each asset. The opinion observed the trial court made no findings regarding the husband's annuity (obtained during the marriage) and therefore remanded for additional testimony and determination whether the annuity is marital.
Dissipation: The court concluded the trial court erred in refusing to credit the wife for marital funds the husband spent on his mistress. The opinion cited precedent establishing that dissipation (use of marital funds for personal benefit unrelated to the marriage during an irreconcilable breakdown) can justify unequal division or assignment of the dissipated amounts to the spending spouse. Because the husband admitted spending at least $2,840 of marital funds on the other woman while separated, the court held the wife was entitled to a credit for those amounts.
Corporate receivables/payables: The court determined the trial court should not have given the husband full credit for claimed premarital contributions tied to corporate receivables. The evidence showed only $26,000 (including $11,000 in corporate receivables) was brought into the marriage; the court held the wife should receive credit for that portion of corporate payables equal to the receivables and that the remaining $20,000 balance should be treated as marital debt already paid. By failing to do so, the trial court effectively gave the husband a windfall.
Adequacy of factors supporting unequal distribution: The court reviewed the factors relied upon by the trial court to justify deviation from equality (no minor children, the wife's not caring for husband's children, and the husband's $65,000 in temporary support payments). It explained that ordinarily an equal distribution is the default and that factors relied upon by the trial court were insufficient to justify the 70/30 split. The court discussed Buttner and related authority to emphasize that homemaking and caretaking contributions justify a share of marital assets even when one spouse was the primary earner. The opinion also stated that the $65,000 in temporary support, paid from marital funds, should not have been credited to the husband to the extent it covered the wife's attorney's fees (citing Canakaris) and that only half the difference should have been credited because the support was paid from marital funds.
Remedy for distribution error: Given these errors, the court reversed the unequal distribution and directed the trial court to distribute the marital assets equally. It noted that the trial court may hold the wife responsible for half of her $10,600 credit card debts in light of equal distribution and recommended reconsideration of the attorney's fees award.
Interpretation of the Landay stipulation (cross-appeal): Regarding the marital home, the court evaluated prior district court decisions interpreting Landay's mechanics and concluded those decisions were inconsistent with the plain language of the parties' stipulation. Because the parties had agreed that the husband would receive 56% and the wife 44% "of the net seller proceeds of sale of the marital home after payment of ... closing costs of sale including mortgage payoff," the court held the husband was bound by that stipulation. Accordingly, the court directed that sale costs, closing costs, and mortgage indebtedness be deducted from the sales price to reach net proceeds, and that each party's agreed percentage be applied to that net figure.
Appellate fees: The court provisionally granted the wife's motion for appellate attorney's fees and directed the trial court to conduct an evidentiary hearing to determine a reasonable amount based on present need and ability to pay, citing Davis.

Holding and Implications

Holding: The district court concluded the trial court's equitable distribution contained reversible errors. In sum, the court ordered correction of multiple deficiencies.

CORE RULING: The judgment of equitable distribution is REVERSED and REMANDED for further proceedings consistent with this opinion.

Direct implications for the parties (as articulated by the court):

The trial court must clearly identify marital and nonmarital assets on remand and designate which spouse shall receive each asset, including taking additional testimony regarding the husband's annuity and determining whether it is marital.
The wife is entitled to a credit for marital funds the husband expended on his mistress (the court found at least $2,840 was admitted to have been spent and should be considered dissipated marital assets).
The trial court must properly account for corporate receivables/payables: the wife should receive credit for the receivables portion, and a $20,000 balance is to be treated as marital debt already paid rather than a premarital credit to the husband.
The trial court's listed factors did not justify a 70/30 departure from equal distribution; the court directed equal distribution of marital assets on remand and advised adjustments (for example, one-half of the wife's $10,600 credit card debt may be her responsibility in light of equal division).
The parties' stipulation regarding the marital home controls: deduct costs of sale, closing costs, and mortgage payoff to reach net proceeds, then multiply the stipulated percentages (56% and 44%) to determine each party's share.
The wife's motion for appellate attorney's fees was provisionally granted; the trial court must hold an evidentiary hearing to determine a reasonable fee award based on need and ability to pay, per Davis.

Broader implications: The court applied existing Florida authority on dissipation, classification of marital assets, and the presumption of equal distribution in the absence of adequate justification for deviation. The opinion does not announce a new rule of law; instead it clarifies application of statutory and precedent-based principles to the record in this case and enforces the parties' stipulation as written with respect to the home sale proceeds.

This summary is based exclusively on the text of the opinion provided; no information beyond that opinion has been added.

Show all summary ...

DONNER, AMY STEELE, Associate Judge.

Carol Romano, the former wife, appeals, and Paul Romano, the former husband, cross appeals, from a final judgment dissolving the parties' marriage and distributing their marital assets. Finding error in the trial court's: (1) failure to clearly identify marital and nonmarital assets; (2) refusal to credit the former wife with marital funds spent by the former husband; and (3) deviation from an equal division of the marital assets, we reverse.

The parties were married in late September of 1987 and lived together for approximately three and a half years, until April 1991, when they separated. No children were born of the marriage. The former husband was employed by Paul's Place, Inc., and Sound Pulse International, Inc., corporations in which he was the sole stockholder. The former wife did not work.

During the marriage, the parties jointly purchased a marital home in Broward County, Florida. The home was purchased for $179,000, with the former husband contributing $29,000 of his nonmarital funds and the former wife contributing $7,000 of her nonmarital funds towards the down payment.

In July of 1991, the former wife filed a petition to dissolve the parties' marriage and equitably distribute their marital property. On September 10, 1991, during the pendency of the proceedings, the former husband was ordered to pay the former wife $1,000 per month as temporary support, as well as various ongoing debts, such as the former wife's car payments and insurance, mortgage payments and other costs associated with the marital home, and temporary attorney's fees.

At trial, the parties stipulated that, as of September 5, 1991, the marital assets totalled approximately $505,203 (excluding the home), all of which represented an accumulation of the former husband's earnings throughout the marriage. The parties also stipulated that: (1) $15,000 of this amount was premarital money brought into the marriage by the former husband; (2) $22,000 of that amount was previously distributed in equal parts to the parties; and (3) that amount was further reduced by approximately $50,000 paid by the former husband for tax liability on marital income. Finally, the parties stipulated in open court to the sale of the marital home for $199,000, and that, under the Landay formula, "[the former husband] would receive 56 percent of the net proceeds after costs of sale, closing costs, et cetera to pay off the mortgage, and [the former wife] would receive 44 percent."

Landay v. Landay, 429 So.2d 1197 (Fla. 1983).

The former husband testified to having an affair with another woman while he was married but separated from his wife. He admitted to loaning this "other woman" $2,240, spending $600 to pay some of her veterinary bills, and paying some of the expenses for a business trip the two took together, with all of the money coming from funds he earned during the marriage. He also acknowledged having an annuity through American Express with a cancellation value of $5,190. An account statement reflecting activity from January to June of 1991 was introduced into evidence, but it does not reveal when or how the annuity was obtained.

Lloyd Winfield, the former husband's accountant, testified approximately $11,214 in accounts receivables in Paul's Place had accrued prior to the parties' marriage in September, 1987, although it was paid after the marriage. He further testified that, according to the October 31, 1987, tax return he prepared, the corporation had accounts payable totalling approximately $46,000. He could not definitively say if that amount of debt accrued before or during the marriage. However, he testified the debt was paid after October 31. He also admitted that, if the former husband brought only $15,000 into the marriage, he had to generate $31,000 to pay the $46,000 in payables.

After hearing argument, the court decided it was not going to give the former wife credit for: (1) marital funds expended by the former husband on his mistress; (2) the American Express annuity; and (3) funds used to pay off the $46,000 in business payables. Rather, in its final judgment, the trial court used $505,000 as its starting point for purposes of equitable distribution, and then reduced that figure to $330,800 based only on the following deductions: (1) $22,000 previously distributed between the parties as mentioned above; (2) $50,000 in taxes paid by the former husband as mentioned above; (3) the $15,000 the former husband brought into the marriage as mentioned above; (4) $48,000 owed by the former husband for additional taxes; (5) $11,000 in accounts receivable which accrued prior to the marriage; (6) $19,700 in marital credit card debts; (7) $6,000 paid by the former husband for the debt on the former wife's Porsche; and (8) $2,500 removed by the former wife from the former husband's safe. Then, the court awarded the former husband 70% of this $330,800, or $231,560, and only 30% ($99,240) to the former wife. Several factors were listed in the final judgment supporting this disparity, including the fact that there were no minor children born of this marriage and the former wife did not care for the former husband's children from a previous marriage, and that the former husband already paid the former wife $65,000 in temporary support. In addition, the court ordered the former husband to pay an additional $10,600, representing the former wife's credit card debts, as well as her attorney's fees and costs, which totalled approximately $11,000. Finally, the court reserved ruling to clarify the parties' joint stipulation as to the distribution of the net proceeds from the sale of the marital home.

Deducting that $21,600 from the husband's share and adding it to the wife's shows the split was more like 63.5%-36.5%.

Pursuant to that reservation, the former wife filed a Motion for Clarification. Consequently, the court entered an order which stated, "The court clarifies the parties stipulation entered in open court on April 23, 1992 to mean that the wife shall receive 44% and the husband 56% of the net seller proceeds of sale of the marital home after payment of closing costs of sale including mortgage payoff." Notwithstanding, the parties failed to reach an agreement on the exact division of the proceeds.

First, we find the trial court failed to properly identify the parties' marital and nonmarital assets as required by section 61.075(3), Florida Statutes (1991), which requires a trial court clearly identify marital and nonmarital assets, and designate which spouse shall receive each asset. For instance, the trial court made no findings with regard to the former husband's annuity, which it is undisputed that he obtained during the marriage. From this record, we are unable to discern whether the annuity is a marital or nonmarital asset. Since we are reversing the trial court's equitable distribution, on remand, the trial court is directed to take additional testimony on this issue and determine if the annuity is a marital asset subject to equitable distribution.

In addition, we agree with the former wife that the trial court erred in refusing to credit her for monies the husband lent to, or spent on, his mistress. The former husband testified at trial that he had an affair with another woman while he was married but separated from his wife. He further admitted to spending at least $2,840 of marital funds on her behalf. Where marital misconduct results in a depletion or dissipation of marital assets, such misconduct can serve as a basis for an unequal division of marital property, or can be assigned to the spending spouse as part of that spouse's equitable distribution. See Eckroade v. Eckroade, 570 So.2d 1347 (Fla. 3d DCA 1990); Rosenfeld v. Rosenfeld, 597 So.2d 835, 838 (Fla. 3d DCA 1992); Poe v. Poe, 522 So.2d 50 (Fla. 5th DCA 1988). "Dissipation" has been defined in the domestic relations context as "where one spouse uses marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown." Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990) (quoting Hellwig v. Hellwig, 100 Ill. App.3d 452, 55 Ill.Dec. 762, 769, 426 N.E.2d 1087, 1094 (1981)) (emphasis added). Consequently, contrary to what the former husband suggests, the fact that the parties were separated at the time of the expenditures actually works in favor of awarding the former wife a credit for them.

We also agree with the former wife that the trial court erred in refusing to debit the former husband for a portion of the $46,000 in account payables owed by his corporation, Paul's Place. The evidence showed the former husband brought a total of only $26,000 into the marriage, $15,000 in cash and $11,000 in corporate receivables. The trial court gave him full credit for that $26,000 when the court should have given the former wife a credit for that portion of the debt that is equal to the corporate receivables. By not doing so, the court essentially gave the former husband a windfall. The $20,000 balance is to be treated as marital debt that has already been paid.

We also find the factors relied upon by the trial court to support its unequal division are insufficient under Florida law. Two of those factors merit discussion. First, the trial court relied on the fact that the parties had no minor children, and that the former wife did not care for the former husband's children from a previous marriage. Second, the court cited the fact that the former husband already paid the former wife $65,000 in temporary support to cover various ongoing marital debts (including the mortgage on the marital residence), provide her with $1,000 per month in cash, and pay her temporary attorney's fees.

Ordinarily, the distribution of marital assets should be equal unless some relevant factor justifies disparate treatment, such as the payment of permanent periodic alimony or the performance of extraordinary services over and above the normal marital duties. Bobb v. Bobb, 552 So.2d 334 (Fla. 4th DCA 1989); Ervin v. Ervin, 553 So.2d 230 (Fla. 1st DCA 1989); see also section 61.075(1) (requiring a trial court consider, when fashioning an equitable distribution plan, "all relevant factors," including the contribution of each spouse to the marriage, contribution to each other, duration of the marriage, and any other factors necessary to do equity and justice between the parties).

In Buttner v. Buttner, 484 So.2d 1265 (Fla. 4th DCA), rev. denied, 494 So.2d 1149 (Fla. 1986), the parties to a thirteen-year marriage sought dissolution and distribution of their marital assets. The husband served as the wage earner and the wife devoted her time to caring for the home and the parties' children. The bulk of their marital assets consisted of two parcels of property with a combined value of $1,005,000, which had been purchased by the husband during the marriage. In fashioning its distribution scheme, the trial court refused to award the wife any portion of the property or any of its appreciation. Thus, the wife was left with hardly anything of value and the husband left the marriage with over $1,000,000. This court reversed, holding that:

Naturally, in making a division of marital assets, courts may consider the role each party played in the accumulation of those assets. [citation omitted] However, the fact that one spouse had a more active role in their acquisition because that spouse acted as a wage earner does not defeat the claim of the spouse who contributed to the family welfare by working within the home.

. . . .

In the present case, the trial court may have been correct in noting that the wife had not performed any "extraordinary services" on behalf of her husband; however, she is nonetheless entitled to a share of the marital assets held in her husband's name. It is clear that she contributed to their acquisition and enhancement by working at home as a wife and mother throughout the course of the marriage. This forms a sufficient justification for award of a portion of those assets.

Id. at 1267.

As in Buttner, in this case, it is undisputed that the former wife attended to the parties' home while the former husband earned all the money. Each party simply fulfilled their traditional roles in the marriage. Furthermore, the fact that the marriage was childless does not necessarily mean it was loveless; nor can it serve as a basis for penalizing the former wife for not bearing any children. In addition, the record indicates, and the former husband admitted, that the former wife did care for his children; and without that care, he would have been forced to hire a baby-sitter or would have had to stay at home with them, thus diminishing his ability to earn the substantial income he brought in during the marriage. In short, without the requisite showing of some extraordinary services on the part of the spouse receiving the lion's share of the distribution, that unequal division cannot stand. See Grimmett v. Grimmett, 425 So.2d 545 (Fla. 4th DCA 1982) (reversing 75%-25% split and remanding for equitable distribution where both parties shared equally in the responsibilities and benefits of the marital relationship).

The husband goes to great pains to point out an excerpt of the wife's testimony in which she said the parties had not acted as "man and wife" for most of their marriage. However, the husband has taken the statement out of context. In fact, when asked to explain herself, the wife testified, "there was no other relationship, except business and caretaker of his children and our home. I thought it was a marriage and it was not." Clearly, the wife meant the relationship lacked any emotional attachments, and not that she neglected her marital duties.

With regard to the $65,000 paid by the former husband in temporary support, the court should not have credited the former husband with that portion of the total covering the former wife's attorney's fees. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Moreover, since that support was paid out of marital funds, the trial court should have credited the former husband with only half the difference. In any event, these support payments do not support deviating from an equitable distribution. Accordingly, we reverse the trial court's distribution and direct the court to distribute the marital assets equally. In light of this conclusion, the trial court may hold the wife responsible for one-half of the $10,600 representing her credit card debts. Additionally, we recommend the trial court revisit the award of attorney's fees and costs.

On cross-appeal, the former husband contends the trial court failed to direct how the proceeds from the sale of the marital home were to be distributed, including how adjustments for closing costs and mortgage payoff were to be made after the stipulated percentages were applied. He interprets Landay v. Landay, 429 So.2d 1197 (Fla. 1983), such that he is entitled to his 56% share of the $199,000 sales price, minus his one-half share of the outstanding mortgage balance, one-half of the real estate commission, and one-half of the closing costs.

In Landay, the supreme court was faced with the question of carving out special equities in property held in tenancy by the entireties (i.e., a marital home), where one or both spouses contributes nonmarital funds to the purchase of that property. Recognizing that the consideration furnished by a contributing spouse represents a capital investment for which that spouse should reap the benefits, if any, the court established the following formula: "in addition to that spouse's automatic one-half share, the contributing spouse acquires a special equity in the property equal to one-half the ratio which that spouse's contribution bears to the entire consideration." 429 So.2d at 1200. Significantly, though, the Landay court went no further in explaining the logistics of distributing sale proceeds.

At least two district courts have rejected the position that a spouse's special equity is carved out of the net proceeds of sale, after the mortgage is paid off, and applied the Landay formula to the total proceeds from the sale. Griffiths v. Griffiths, 563 So.2d 773, 775 (Fla. 3d DCA 1990); Donaldson v. Donaldson, 481 So.2d 101, 102 (Fla. 2d DCA 1986); see also Cochran v. Cochran, 560 So.2d 269, 270 (Fla. 5th DCA 1990) (appearing to follow Donaldson and Griffiths when the court calculated the wife's share of special equity based on the Landay formula, "after equal allocation of the mortgage indebtedness."). In those cases, one half the mortgage indebtedness was subtracted from that portion of the sale proceeds representing that spouse's share to arrive at the total amount due the contributing spouse. Notably, though, no costs for closing or real estate commission appear in the calculations there. In fact, in Donaldson, the court stated the Landay formula is applied only to the "total proceeds of sale," which the court interpreted to mean "those proceeds after deduction of necessary and reasonable expenses incident to sale." 481 So.2d at 102 (emphasis added).

Yet, these cases are inconsistent with the plain language of the stipulation, under which both parties agreed "[the former husband] would receive 56% of the net proceeds after costs of sale, closing costs, et cetera to pay off the mortgage, and [the former wife] would receive 44 percent." (emphasis added). Therefore, we hold the former husband is bound by the plain language of the stipulation. Accordingly, the costs of sale, closing costs, and mortgage indebtedness are to be deducted from the sales price to reach the net proceeds, and then that figure is to be multiplied by each parties' percentage to calculate their respective shares of the proceeds.

Finally, the former wife has moved to recover her appellate costs and attorney's fees. We provisionally grant her motion and direct the trial court to conduct an evidentiary hearing to determine a reasonable amount of fees based upon present need and ability to pay. See Davis v. Davis, 584 So.2d 1117 (Fla. 1st DCA 1991), and cases cited therein, which provide for such a procedure.

GLICKSTEIN and POLEN, JJ., concur.