IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

 FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

GEORGE C. HARRIS,

Appellant,

v. Case No. 5D15-3993

ANITA HARRIS,

Appellee.

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Opinion filed December 2, 2016

Appeal from the Circuit Court 

for Marion County,

Anthony M. Tatti, Judge.

Barry P. Burnette, of Barry P. Burnette, 

P.A., Tavares, for Appellant.

No Appearance for Appellee.

EDWARDS, J.

George C. Harris (“Former Husband”) appeals the final judgment of dissolution of 

marriage from Anita Harris (“Former Wife”). Former Husband raises two issues. First, 

he argues that the trial court erred by considering Former Wife’s voluntary support of her 

grandson and daughter from another relationship as part of Former Wife’s need for 

alimony. Second, Former Husband argues that the trial court erred by failing to properly
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consider the marital portion of the appreciation of Former Wife’s house. We find the 

issues raised by Former Husband have merit. Accordingly, we reverse and remand.

First, the trial court erred by basing Former Wife’s alimony award on a statement 

of expenses that included the voluntary financial support Former Wife provided to her 

daughter, who was not Former Husband’s child, and grandchild. The daughter and minor 

grandchild lived with Former Wife, who paid all of the household expenses. The daughter 

was unemployed and did not contribute financially to the household expenses. Neither 

Former Wife nor Former Husband provided any evidence of the expenses attributable to 

Former Wife alone, rather than those attributable to her daughter and grandchild. 

The trial court correctly stated, at one point, that it could not consider voluntary 

payments made by Former Wife to support her adult daughter and grandchild. See 

Quinones v. Quinones, 84 So. 3d 1101, 1104 (Fla. 3d DCA 2012) (holding that the trial 

court erred in considering the former husband’s voluntary college tuition and car 

payments for the former couple’s adult son as an expense for former husband). However, 

the trial court later stated, incorrectly, that “some consideration must be given to the

[Former Wife’s] voluntary support of her adult daughter and minor grandson in 

determining [her] needs.” We reverse the award of alimony and remand for the trial court

to make a determination of Former Wife’s individual need, which must be based upon 

competent substantial evidence. See § 61.08(2), Fla. Stat. (2015); Zinovoy v. Zinovoy, 

50 So. 3d 763, 766 (Fla. 2d DCA 2010). Former Wife, as the party seeking alimony, bears

the burden of proof. Demont v. Demont, 67 So. 3d 1096, 1101 (Fla. 1st DCA 2011).

Second, the trial court erred by considering one-half of the marital portion of the 

appreciation in value of Former Wife’s house as an asset of Former Husband, when
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Former Wife was awarded sole ownership of the home.1 During their marriage, the 

parties lived in a house Former Wife purchased nine years before the marriage. Former 

Husband does not dispute that, in general terms, the house should be awarded to Former

Wife as a nonmarital asset. Marital assets include “[t]he enhancement in value and 

appreciation of nonmarital assets resulting either from the efforts of either party during 

the marriage or from the contribution to or expenditure thereon of marital funds or other 

forms of marital assets, or both.” § 61.075(6)(a)1.b., Fla. Stat. (2015). Here, evidence 

was presented that the parties used marital funds to pay a few mortgage payments and 

to make improvements to the house, including a new roof, an air conditioning system, 

new kitchen appliances, and a remodel of the garage. 

The trial court determined that the total appreciation of the house was $45,850.50. 

The trial court then assigned $35,000 of the passive appreciation as a nonmarital asset 

of Former Wife. The trial court found that the improvements discussed above, financed 

with marital funds, added $850.50 to the house’s value and assigned $10,000 in passive 

appreciation as a marital asset. Former Husband argues that the trial court erred in the 

equal distribution calculations because the court concluded that Former Husband and

Former Wife benefitted equally, so that each was considered to have a $5,425.25 marital 

asset representing the marital portion of the house’s appreciated value, despite the fact 

that Former Wife was awarded sole ownership and possession of the house.

 

1 The trial court repeatedly describes this appreciation as “passive.” While the 

majority of appreciated value was passive in nature, the court did find that a small portion 

of the increased value of the home was due to enhancements or improvements made to 

the house (non-passive).
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In Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2010), the Florida Supreme Court addressed 

a case with similar facts. In Kaaa, the former husband purchased a home prior to the 

couple’s marriage. 58 So. 3d at 869. The couple lived in the home throughout their 

twenty-seven-year marriage. Id. During the marriage, the couple used marital funds to 

pay the mortgage and undertake home improvements, thus, increasing the value of the 

home. Id. Upon the couple’s divorce, the trial court found that the total enhanced value 

of the home was $36,679 and ordered the former husband, the homeowner, to pay the 

former wife, the nonowner, half of that amount as an equalizing payment. Id. The former 

wife appealed, arguing that the trial court should also have awarded her a distribution for 

the passive appreciation of the home, not just the enhancement value. The Florida 

Supreme Court held that the trial court erred in not awarding the former wife one-half 

payment of passive appreciation, explaining that “principles of equity do not allow an 

owner spouse to receive the full benefit of the passive appreciation when the nonowner 

spouse contributed to the property.” Id. at 871. 

In the present case, Former Husband argues that the trial court did not equalize 

the parties’ marital assets and liabilities because it awarded sole ownership of the marital 

home to Former Wife but only credited her with one-half of the $10,850.50 marital portion 

of the appreciation. Husband is correct. As in Kaaa, the trial court should have either 

ordered Former Wife, the homeowner, to make a one-half payment of the marital portion 

of the appreciation of the house to Former Husband, the nonowner, or it should have 

credited the entire marital portion of the appreciation of the house to Former Wife when 

calculating equitable distribution. Therefore, we reverse and remand for the trial court to 

credit Former Wife with the entire marital portion of the appreciation of the house’s value 
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and to recalculate any equalizing payments between Former Wife and Former Husband. 

An amended final judgment shall be entered to reflect changes in alimony and equitable 

distribution.

REVERSED AND REMANDED.

SAWAYA and BERGER, JJ., concur.