### D ISTRICT 

### C OURT 

### O F 

### A PPEAL 

### O F 

### T HE 

### S TATE 

### O F 

### F LORIDA

F OURTH D ISTRICT

SONYA WITT

- BAHLS
, Appellant,

v.

DENNIS BAHLS
, Appellee

.

No. 4D 14

- 152

[ April 20, 2016 ]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County ; Tim Bailey , Judge; L.T. Case No. FMCE 11

- 000673 (41)

.

Lori D. Shelby, Fort Lauderdale, for appellant.

Theodore H. Uno of Boies, Schiller & Flexner LLP, Hollywood (withdrawn after filing brief) , for appellee.

ON MOTION FOR REHEARING

P ER C URIAM

.

Appellant filed a motion for rehearing for the sole purpose of conforming certain language to that currently used in the relevant statutes. We grant

the motion

, withdraw the opinion of this Court issued February 3, 2016, and substitute the following

.

In this case, Appellant Sonya W itt

- Bahls (“the w ife”) appeals various aspects of the Final Judgment of Dissolution of Marriage between her and Appellee Dennis Bahls (“the h usband” ). We reverse the judgment insofar as it failed to provide the s pecific step s required for the w ife to reestablish contact with her child beyond supervised timesharing. We affirm on all other issues, but write to address the passivity of appreciation of stock in a marriage.

Background

The h usband worked at Kiewit Incorporated (“Kiewit”) for twelve years prior to the marriage. Kiewit is a privately

- held international company2

employing thousands of people. The husband was demoted at least twice during the marriage and was eventually terminated

. At his highest position, there w ere seven or eight level s of management above t he

h usband

.

The h usband had purchased a large number of shares of Kiewit stock prior to the marriage. The h usband purchased these shares using a bank

loan on which he made monthly repayments. A CPA called by the h usband testified that there had been no payments on the loan other than interest
payments. When the h usband was terminated from Ki ewit

, his stock was liquidated. The stock sold for substantially mor e than the outstanding balance of the loan used to purchas e them. The trial court found that the appreciation of the stock was passive and th erefore not a marital asset subject to equitable distribution

.

In addition to testimony regarding their financ ial affairs, the trial court

also heard from many individuals regarding the issue of appropriate parental responsibility and timesharing for the parties’ child. This testimony included recommendations that the w ife receive therapy and

worries that the w if

e had coached the child into making false reports of

abuse. The trial judge’s takeaw ay was that he was “concern[ed]” with the

w ife and that “ it would [not] be in [the child’s] best interest if mom’s time with him was unsupervised.”

The court found that “joint decision m aking would be detrimental to [the c hild] in this ca se as of today. As of today.” The court did not order counselling or therapy for the wife , and instead “want[ed] to see what mom is going to do about [the court’s concerns].” The cour t specifically said that it was not “com[ing] up with a magical answer .” Instead, t he court said that, “[s]hould the day come when mom and dad and [the c hild], or any combination, along with healthcare providers thinks it would be a good idea to drop the supervised conditions , you come back and see me.”

T he court ordered shared parental responsibility with the husband having ultimate decision

- making and also ordered that the husband have majority timesharing and that wife have no unsupervised contact wi th the

c hild.

Analysis

I. Appreciation of Stock

Determinations of assets as marital or non marital are reviewed de novo. Preudhomme v. Bailey , 82 So. 3d 138, 140 (Fla. 4th DCA 2012). Marital3

assets are subject to distribution between the formerly married parties. § 61.075(1), Fla. Stat. (2015). Marital assets include “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marria ge or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or

both.” Id. § 61.705(6)(a)1.b.

The enhanced value of s tock from a company for which the owning

spouse works can be considered a marital asset and be subject to equitable

distribution. See, e.g.

, Pagano v. Pagano , 665 So. 2d 370, 372 (Fla. 4th DCA 1996). However, it can also be a nonmarital asset if marital effort or assets are not used in so enhancing its value. See, e.g.

, Oxley v. Oxley

, 695 So. 2d 364, 367

- 68 (Fla. 4th DCA 1997). The question raised in this appeal is whether the h usband exerted the sort of “effort” required to move the appreciation value from the nonmari tal category to the marital one.

The details of our prior case law make the answer to that question quickly apparent. In Robbie v. Robbie , 6 54 So. 2d 616 (Fla. 4th DCA 1995 )

, we held that the appreciation of stock owned by the genera l manager of the Miami Dolphins

— a business enterprise r un largely by the husband’s family

— was a marital asset

. Id. at 617. Similarly, in Pagano

, we held the same with regards to the appreciation of stock owned by the president and operations manager of a family who lesale plumbing supply business. Pagano , 66 5 So. 2d at 371

- 72. In Minton v. Minton , 698 So. 2d 936 (Fla. 4th DCA 1997)

, we again held that the appreciation of stock from a family

owned business for which the husband was chief operating officer of two subsidiaries and vice president of two others was a marital asset

. Id. at

369

- 97. The pattern here is clear.

The case at bar demonstrates neither of the key feature s in the cases

described. Kiewit is not a business enterprise owned or run by the husband’s family. Nor was t he h usband in a posit i on of significant authority in the company. Although he had some supervisory responsibility, the most reasonable description of his position would seem to be “middle manager .”

As was the case in Oxley

, we today avoid a holding that “would effectively make all spouses partners in the increased value of all nonmarital assets that does not result from passive appreciation.” Oxley

, 695 So. 2d at 368. Inst ead, we hold that, because the wife failed to

establish that the h usband occupied a significant management role in Kiewit, the appreciation of the Kiewit stock was not due to active effort and4

is therefore not a marital asset. 1 We fail to see h ow the rule proposed by

the w ife

— that all appreciation of the stock of a company for which a spouse works is a marital asset

— would not force the trial courts to determine exactly how much of the increase in value of a multi

- national corporation each and every hourly employee was responsible for

. “ Such a significant expansion . . . is better left to the legislature to consider.” Id.

II. Steps Required to Reestablish Contact

Timesharing determinations are reviewed for abuse of discretion.

Castillo v. Castillo , 950 So. 2d 527, 528 (Fla. 4th DCA 2007). “‘Discretion . . . is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial

court.’” Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980) (quoting Deln o v. Mkt. St. Ry. Co. , 124 F.2d 965, 967 (9th Cir. 1942) ).

The failure to “set forth any specific requirements or standards” for the alleviation of timesharing restrictions is error. Ross v. Botha , 867 So. 2d 567, 571 (Fla. 4th DCA 2004). This applies to both the prevention of timesharing altogether and to restrictions. Hunter v. Hunter , 540 So. 2d 235, 238 (Fla. 3d DCA 1989). “Essentially, the court must give the parent the key to reconnecting with his or her children. An order that does not set forth the specific steps a parent must take to reestablish time

- sharing, thus depriving the parent of that key, is deficient . . . .” Grigsby v. Grigsby

, 39 So. 3d 453, 457 (Fla. 2d DCA 2010) ; s ee also Davis v. Lopez

- Davis , 162 So. 3d 19, 21 (Fla. 4th DCA 2014) (quoting Grigsby in holding judgment was deficient in not setting forth the steps father needed to take in order to establish time sharing).

The court here did not provide specific steps or a k ey. In fact, the court

1 We acknowledge that the w ife also mentions the Florida Supreme Court’s

decision in Kaaa v. Kaaa , 58 So. 3d 867 (Fla. 2010)

, but we find this mention to be unpersuasive her e for two reasons. First, the w ife does not explain exactly why she believes Kaaa would compel a reversal here given the facts as found

, instead focusing on an evidentiary issue that we affi rm without further

discussion. See E & I, Inc. v. Excavators, Inc. , 697 So. 2d 545, 547 (Fla. 4th DCA 1997) (requiring the appellant to make error clear). Second, without further development from the parties, we are unable to say with certainty that Kaaa cannot be distingui shed. There, the court ignored any interest payments that might have been made on a loan, focusing only on the reduction of the principal.

Kaa a , 58 So. 3d at 869. Here, the trial court found that the only payments made went towards the interest and the principal was never reduced. Per E & I , w e decline to express an opinion on whether this distinction makes a difference

.5

explicitly said that it would “disappoint mom’s attorney” and would not give “a magical answer.” Instead, the court suggested that the w ife “do

what she thinks is b est for herself and her son ” and indicated that the supervised cond ition might be dropped when “some combination of” the wife, the h usband, and the child, as well as unspecified “ health care providers ,” think s it is a good idea to do so

. This is not enough to allow “the parent [to] know[] what is expected” or to allow “any successor judge [to] monitor[] the parent’s progress.” Grigsby , 39 So. 3d at 457.

We do not mean to suggest that the trial court was obligated to set out

every minute detail of the steps to reestablish unsupervised timesharing

. However, if the trial court determines that anger management thera py or a substance abuse program, for example, would be more appropriate than merely general counseling, it must so specify, alo n g with a timeframe. See

Forssell v. Forssell

, Nos. 4D15

- 502 & 4D15

- 730 (Fla

. 4th DCA Jan. 6, 2016) ( citing to Ross

, Grigsby , and Hunter in concluding that the trial court “abused its discretion in failing to set forth

. . . the steps the father must

take to re

- establish time

- sharing” and noting that, “[o]n remand, the trial court may consider the need for a psychological evaluation, a parenting course, and/or an anger management course before the father may resum[e] time

- sharing”). The requirement is for the w ife to walk out of the courtroom knowing that if she satisfactorily accomplishes relatively specific tasks , she will be able to reestablish unsupervised timesharing

. “[A]bsent such benchmarks being identified by the trial court, the ‘temporary’ na tu re of the suspension of the [w ife’s] timesharing will become illusory. ” Grigsby

, 39 So. 3d at 457 n.1.

Conclusion

For the reasons given above, the judgment of the trial court is reversed

and remanded for the limited purpose of providing the w ife with the steps required to reestablish contact with her child

. We believe that modification

of the order is possible from the record alone and do not suggest that a

new trial is necessary. In all other respects, the judgment of the trial court

is affirmed.

Affirmed in Part and Reversed in Part

.

W ARNER
, S TEVENSON and F ORST
, JJ., concur.