FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-40

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MARY GRACE VINSON,

Appellant/Cross-Appellee,

v.

TOMMY JUNIOR VINSON,

Appellee/Cross-Appellant.

_____________________________

On appeal from the Circuit Court for Okaloosa County.

Michael A. Flowers, Judge.

January 7, 2019

ON MOTION FOR REHEARING

JAY, J.

We deny the former wife’s Pro Se Motion for Rehearing. We 

withdraw our earlier opinion, however, and substitute the 

following corrected opinion in its place.

Before us are the former wife’s appeal, the former husband’s 

cross-appeal from the Amended Final Judgment of Dissolution of 

Marriage, and the orders properly subsumed therein. See Fla. R. 

App. P. 9.110(h). After giving due consideration to all of the 

arguments raised by each party, we affirm the points raised on 

appeal, but reverse in part the points raised on cross-appeal. As a 
2

result—and for the reasons discussed below—we remand the cause

for further proceedings.

I. FACTS

There are few dissolution cases that reach this Court having 

taken the straight and narrow path. Likewise, in the present case, 

the parties met pitfalls and took detours of their own device prior 

to reaching the final hearing. We take note of the trial court’s 

commendable efforts to shepherd them toward that end. But in 

order to fairly and accurately recount the hazards they 

encountered along the way requires that we include the following,

relatively lengthy, recitation of the facts.

A.

The parties were married on February 14, 2007. Their 

daughter was born in 2012. The parties separated in December 

2014, and six months later, on June 1, 2015, the former wife filed 

her Petition for Dissolution of Marriage. On January 15, 2016,

following a hearing, the trial court entered a Stipulated Temporary 

Order adopting the parties’ stipulated temporary time-sharing 

agreement concerning their minor child. The stipulated order

established an equal time-sharing arrangement between the 

parties and obligated the former husband to pay temporary child 

support.

A final hearing was scheduled on the former wife’s petition on 

October 5, 2016. In the meantime, on September 26, the former 

wife and her attorney—Wanda Morgan—arrived at the law offices 

of the former husband’s attorney with the intent of taking the 

former husband’s deposition. Instead, the parties entered into a

new time-sharing agreement that departed markedly from the 

equal time-sharing plan approved by the trial court in the

Stipulated Temporary Order. 

Specifically, Ms. Morgan announced that they had “worked 

out the time sharing in this case, that the husband [would] have 

majority time sharing with the parties’ minor child,” and the 

former wife “[would] get all of the summer []—which will begin one 

week after school lets out and it will end when—one week before 

school reconvenes.” In addition, the parties would “alternate the 
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entire Thanksgiving holiday . . . [and] [would] split the Christmas 

Holiday according to [the] Okaloosa Shared Parenting Plan.” 

Furthermore, the former wife would get “every three or four day 

weekend,” which they anticipated would amount to one weekend 

per month, “whether it be due to a teacher work day or holiday like 

Labor Day, Memorial Day, [P]resident’s Day . . . .” Lastly, the 

former wife would pay “$200 a month to the husband as child 

support.” Ms. Morgan represented that they would “reserve” on the 

remainder of the assets, including the marital home, until the 

upcoming October hearing.

Next, the court reporter—who had been retained to report the 

former husband’s deposition—placed the former wife under oath. 

Ms. Morgan asked the former wife if she understood the timesharing arrangement as it was outlined by Ms. Morgan. The 

former wife replied, “Yes,” and then added, “Yeah, I just want to 

know about the social security that he can get[.]” After informing 

the former wife that they would eventually get to that issue, Ms. 

Morgan asked her if she was in agreement with the time-sharing 

plan as Ms. Morgan had summarized it. The former wife said she 

was in agreement and then asked about the “other holidays.” Ms. 

Morgan explained that she would get her daughter one long 

weekend per month. The former wife expressed her satisfaction 

with that answer and then testified that no one had promised or 

threatened her to enter into the agreement—she was entering into 

it freely and voluntarily because she believed it was in the best 

interest of her daughter. 

The former husband was then questioned by his attorney—

Travis Johnson. The former husband confirmed that he had 

discussed the terms of the agreement with Mr. Johnson, who had

answered all of his questions. He agreed that the time-sharing 

plan was in his daughter’s best interest; that he had not been 

forced into the agreement or promised anything for his agreement; 

and that he had entered into it freely and voluntarily. Both parties

confirmed they understood that the issues of the equitable 

distribution of assets and liabilities and other financial issues 

would be decided at a later date.

Nevertheless, three business days before the scheduled

dissolution hearing, the former wife waivered and filed a pro se
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Motion to Set Aside Custody Agreement, in which she alleged that 

she had been fearful and anxious and had felt pressured and 

coerced when she entered into the newly-stipulated time-sharing 

plan. On the heels of the motion, and based upon a Stipulated 

Motion to Withdraw, the trial court entered an order relieving

Wanda Morgan of responsibility as the former wife’s attorney of 

record.

On October 13, 2016, following a hearing, the trial court 

granted the former wife’s Motion to Continue, in order that she 

could retain new counsel. The court also awarded the former 

husband fees and costs for the preparation necessary for the 

previously scheduled final hearing. In the meantime, the former 

wife—who did retain new counsel—filed Petitioner’s Motion for 

Contempt, asking the trial court to find the former husband in 

contempt for failing to follow the January 7, 2016 Stipulated

Temporary Order, as opposed to the terms of the September 

stipulated agreement.

B.

On January 20, 2017, a hearing was held before the court on

the former wife’s two motions. The former husband was present 

and represented by Mr. Johnson. The former wife was also present 

and represented by Tonya Holman. The trial court heard 

testimony from the former wife and Wanda Morgan. 

According to the former wife—prior to the day that they met 

at the Mr. Johnson’s law offices—Ms. Morgan had been telling the 

former wife that her “custody” case was weak because she worked 

and the former husband did not. She also referenced an email from 

Ms. Morgan sent on September 21, 2016, in which—in the former 

wife’s words—Ms. Morgan told her that she might “lose [the case]

. . . because [she] withheld very important information until just a 

couple of weeks before trial[.]” 

Prior to admitting the email into evidence, the trial court 

informed the former wife that, by doing so, she was waiving her 

attorney-client privilege. The former wife said she understood. She

then testified as to her version of the sequence of events that

occurred on September 26, 2016, when she first arrived at the law 

offices for the deposition of her former husband.
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As she described it, Ms. Morgan talked to her “quickly” 

outside, again advising her that her case was “weak” and that the 

judge “probably” would not give her custody because she worked. 

She then said, “So we opened the conversation” about a plan that 

would give the former husband majority time-sharing during the 

school year, but claimed that they “rushed into it.” The former wife

related that Ms. Morgan then spoke to Mr. Johnson and, 

afterwards, relayed back to her that he was willing to reduce her 

child support obligation to $200 per month during the months the 

former husband maintained majority time-sharing. The former 

wife said that she told the attorneys she could not afford even that 

amount, but Ms. Morgan allegedly responded that it was “the best 

deal” she could get “because the Judge may give some more.”

At that point, Ms. Holman addressed the former wife’s

September 26 testimony where the former wife assented to the 

agreement. Specifically, the former wife argued that despite Ms. 

Morgan’s representation that they had discussed the details of the 

time-sharing agreement, the former wife still harbored questions, 

but was too afraid to ask them; it was not what she wanted, but 

“everything happened so fast,” she “wasn’t ready,” and she “wasn’t 

given enough time to think about it.”

The transcript of that meeting was moved into evidence. Ms.

Holman went over each question asked by Ms. Morgan and 

answered by the former wife. She then asked the former wife how

she felt when she answered those questions. The former wife 

testified that she felt “scared” and “confused,” and did not know 

what was going on. In light of the email she received from Ms. 

Morgan, the former wife claimed she felt she was already losing 

her case.

The email conversation between the former wife and Ms. 

Morgan was entered into evidence. Read as a whole and in context, 

it revealed that on September 21, 2016, just days before the 

scheduled final hearing, the former wife advised Ms. Morgan of a 

new witness she had just thought of and asked Morgan if she 

would subpoena the witness. In response, Ms. Morgan informed 

the former wife that she had “severely hurt [her] case by not 

telling” her this “important information sooner.” Ms. Morgan made 

clear that the former wife had been withholding information and 
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refusing to allow Morgan to request continuances. Ms. Morgan told 

her, “Your not allowing me to attempt to continue your case could 

cost you custody,” and she explained that by the former wife’s

having withheld important information from her “until just a 

couple of weeks before trial” left her “no time to get witnesses and 

much needed information.”

On cross-examination by Mr. Johnson, the former wife 

confirmed that it had been Ms. Morgan—and not the former 

husband—who had “forced” her into the agreement. She also 

admitted that after her deposition was taken on August 1, 2016, 

she and Ms. Morgan “consulted several times” on “the various 

strengths and weaknesses of the case.” She then testified that 

things were “going so fast” during the negotiations on September 

26, she could not “remember what was going on.” Despite 

acknowledging that Ms. Morgan was negotiating terms that would 

have been beneficial to her, the former wife insisted she did not 

“want to do it.” 

When confronted with her sworn testimony that she had not 

been threatened into entering into the agreement, and when asked 

if she essentially had changed her mind upon arriving home, the 

former wife replied, “No,” insisting she had never wanted the new 

time-sharing plan in the first place. She agreed with Mr. Johnson

that divorce proceedings could be stressful and emotionally 

draining on anyone, but when asked if there had been anything

beyond that “normal emotional strain of divorce that forced [her] 

to enter into this agreement,” the former wife replied, “It was fast. 

I don’t know.”

Before Wanda Morgan testified, the trial court reiterated its 

earlier ruling that the former wife had affirmatively waived all

privileged communications between her and Ms. Morgan.

Ms. Morgan testified that subsequent to the former wife’s 

August 1 deposition, the two had conversed about what the 

deposition had revealed and how it might affect her case. During 

the deposition, it came to light that the former wife’s work schedule 

as a nurse caused her to be “very reliant” on her mother to provide 

the necessary care for the parties’ minor child. Ms. Morgan went 

on to relate that the week prior to the former husband’s scheduled

deposition, she received from the former wife some “pretty 
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accusatory and inflammatory” emails. Accordingly, when they 

both arrived for the former husband’s deposition, Ms. Morgan 

asked the former wife to step outside to talk about the emails. 

Ms. Morgan maintained that the email admitted into evidence 

was not representative of all the other emails that had passed

between the two women. Rather, Ms. Morgan revealed that, in the

other emails, she had discussed with the former wife all “the good, 

the bad, and the ugly” of the case, as she normally does with all 

her clients. One of those “ugly” facts was that the domestic violence 

charge the former wife had lodged against the former husband had 

been nol prossed. She also informed the former wife of all of the 

factors the trial court would weigh in determining “primary 

custody.”

Returning to the conversation outside the law offices, Ms. 

Morgan testified that the former wife apologized about the earlier 

emails. She then told Ms. Morgan that she had been talking to her 

sister, who had previously given up custody of her child to her 

husband. Her sister told her that it was working out well and it 

would be in the best interests of the former wife’s daughter if she 

spent the majority of her time with the former husband during the 

school year. 

It was at that point—according to Morgan—that they began 

talking about a similar option for the former wife, and Ms. Morgan 

asked the former wife if she would want most of the summer with 

her daughter. The former wife said she would, and she also agreed 

to alternating visitation for Christmas and Thanksgiving. The 

former wife told Ms. Morgan that she was planning to return to 

school to become a nurse practitioner and was contemplating 

taking a job as a traveling nurse. For that reason, she agreed it 

would be in her child’s best interest to be with the former husband 

for the school year. Ms. Morgan asked her if she wanted her to 

relay her preferences to Mr. Johnson, and the former wife said, 

“‘Yes, that would be in her best interest.’” According to Ms. 

Morgan’s recollection, it was the former wife who had approached 

her about giving the former husband majority time-sharing. 

During the negotiations, however, the sticking point with the 

former wife was her support obligation. Ms. Morgan testified she 

explained to the former wife that she could not waive support, and 
8

if they went before the trial court, it would impose a guidelines 

support amount. She then explained to the former wife that the 

former husband was agreeing to a “downward deviation” from the 

guidelines based on her agreeing to pay his transportation costs

for visitation (the former husband was then living in Alabama). 

The guidelines monthly amount was close to $400, whereas the 

former husband was proposing the former wife pay only $200.

Ms. Morgan denied that the former wife at any time expressed 

confusion about the terms of the agreement. She asserted that she 

“made sure [the former wife] understood everything.” Moreover, 

she agreed that it was not a complete settlement, as there were 

additional issues that would have to go before the court. Ms. 

Morgan went on to state:

I have been doing this for fifteen years. I don’t force 

anybody into anything. If she wanted her day in court, 

she could have gotten it. But she was the one who 

presented it to me. I presented it to you [Mr. Johnson]. 

We ironed out the details about the child’s issues and put 

it on the record.

And three or four hours later, she e-mailed me, and 

it wasn’t about that she didn’t want to agree to the 

custody anymore. She said, she couldn’t afford to pay the 

$200 a month child support, that she was bringing in 

another family member from, I think, the Philippines. . . 

. [S]he had too many people to support already. She can’t 

afford to pay $200, and I need you to set this aside.

I said, “I’m sorry, ma’am. I can’t in good faith file a 

motion to set aside because I don’t feel I have the proper 

grounds for it. And over the course of the next couple of 

days, we went back and forth with e-mails. And I finally 

said, I have to withdraw as your attorney because I 

cannot ethically do what you’re asking me to do.

On cross-examination, Ms. Morgan reiterated her testimony 

about the conversation outside in the parking lot, when the former 

wife announced she wanted to make the time-sharing offer to the 

former husband. Then she added:
9

And I was just like, really? I’m like, why? What are your 

reasons? We discussed the reasons. It’s the 12-hour shifts 

at the hospital night and day. It’s the traveling nurse job 

that she was anticipating getting. It’s going to school to 

be a registered nurse practitioner, that she wasn’t going 

to have time, and it wasn’t fair to the child in that it 

would be best for her to be with her dad for the school 

year so that she could continue to go and make more 

money so that she could then – she has her mother over 

here. She’s supporting her mom. So she could continue on 

to make more money to bring another family member. I 

think it was her dad, to come over.

Ms. Morgan repeated that it had been the former wife who brought 

up the subject; she wanted her to present it, and “kept saying over 

and over that it was in her daughter’s best interest that she go live 

with dad for the school year,” even though their plan all along had

been to take it to trial. Ms. Morgan denied that she said their case 

was “weak,” but just presented to the former wife what the court 

might do under the circumstances.

After hearing argument from counsel, the trial court recapped 

the evidence it had heard and then found:

From the Court’s perspective, the case was ongoing. 

It was litigious and contested. For a period of time, 

depositions had been taken. Conversations between [the 

former wife] and counsel, Ms. Morgan, had taken place.

And [the former wife’s] testimony is that on the date 

that [the former husband’s] testimony was going to be 

taken at deposition, that she met with counsel. [The 

former husband] was to appear by telephone for his 

deposition.

However, the deposition did not take place because 

negotiations ensued. The evidence presented in the form 

of [the former wife’s] testimony is that under oath that 

day she answered many questions, and she was 

untruthful. That’s her testimony today that she lied. So 

the reason, therefore, is the emotional tole [sic] that had 
10

been taken upon her rendered her unable to truthfully 

testify as to whether or not she agreed and understood.

But the record is clear that she did agree and 

understand the terms of the agreement. In fact, Exhibit 

1, the transcript, indicates the answers to those questions 

indicate that she did understand what she was doing, 

that she not been [sic] forced or coerced.

And the evidence today is all understood that in the 

event an agreement was not reached, that a final hearing 

was going to be conducted within weeks of that deposition 

and the date which the agreement that is sought to be set 

aside here was reached.

With respect to setting aside this agreement, 

because consistent with case law, the Court is looking for 

the best interest of the child. And to the extent that I think 

. . . the Court [sic] is devoid of any evidence that would 

suggest the best interest of the child will not be served by 

the agreement that was reached by the parties.

There is no evidence presented and none suggested 

that [the former husband], nor his counsel, coerced or 

manipulated or did anything untoward which resulted in 

[the former wife’s] decision to enter into the agreement. 

That if there was duress, [the former wife’s] testimony 

was that her counsel would have been the source of that 

duress.

Based on the best evidence before the Court, [the 

former husband] in no way, nor did his attorney, in any 

way, provide any coercion or any coercive activity. There’s 

no legal evidence of that.

The motion to set aside the clearly-agreed upon custody 

arrangement is respectfully denied. Therefore, the 

motion or suggestion that by following the terms of the 

agreed-upon disposition that Mr. Vinson has acted in 

contempt of this Court cannot be well founded.

(Emphasis added.)
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A written Order on Petitioner’s Motion to Set Aside 

Agreement and Motion for Contempt was subsequently entered on 

January 27, 2017. Consistent with the trial court’s oral findings, 

the order stated that the former wife was not coerced into entering 

into the stipulation and no evidence was presented to suggest the 

new time-sharing plan was not in the child’s best interests. The 

day before, Ms. Holman, the former wife’s attorney, was granted 

leave to withdraw as attorney of record based on an “impasse 

reached in the handling of the case.”

On February 13, 2017, the “Parenting Plan of Mary Grace 

Vinson and Tommy Vinson for Final Judgment” was approved by 

the trial court. The plan memorialized in writing the parties’ 

September 2016 stipulated agreement and granted majority timesharing of the parties’ daughter to the former husband during her 

school year. It was later incorporated into the Amended Final 

Judgment of Dissolution of Marriage.

C.

The final hearing on the former wife’s Petition for Dissolution 

of Marriage was held on October 30, 2017. The former wife 

appeared with new counsel, Michael Webster. The former husband 

continued to be represented by Travis Johnson. It was established 

early on in the former wife’s testimony that there was no claim for 

alimony or spousal support, since she acknowledged that she had 

a higher income than the former husband at the time of the divorce 

proceedings. The evidence demonstrated that during the period of 

separation, the former wife did not contribute any portion of her 

wages or earnings to the former husband. She maintained 

separate accounts and accumulated separate assets during that 

time, but no funds were co-mingled.

Relative to the issues raised on cross-appeal, the evidence 

established that during the course of the marriage, the former 

husband had been employed by the U.S. Army Corps of Engineers. 

After he was fired from his position, he filed an administrative 

action alleging unlawful discrimination. The former husband 

prevailed before an administrative law judge and was awarded 

damages. The damages were divided into three discreet awards. 
12

The first sum awarded was in the amount of $70,000. In a 

letter addressed to the Director of the Department of the Army 

dated June 20, 2017, the former husband’s attorney who had 

handled the lawsuit—Adam J. Conti—referenced an enclosed copy 

of the “Final Agency Action,” which ordered payment to the former 

husband of “nonpecuniary compensatory damages in the amount 

of $70,000.” The compliance order from the office for Equal 

Employment Opportunity (“EEO”) referenced a payment of 

$70,000, but did not specifically designate the award as one for 

“nonpecuniary compensatory damages.” Later, in a letter from the 

Department of the Army dated July 14, 2017, in response to Mr. 

Conti’s letter, it was again noted that a check in the amount of 

$70,000, dated December 23, 2016, was issued to the former 

husband. 

At the final hearing, one of the issues for the trial court to 

resolve was how to characterize the $70,000 for purposes of 

equitable distribution. During the former wife’s direct 

examination, Mr. Webster referred to the damages as 

“nonpecuniary” when he was reading from Mr. Conti’s letter. On 

cross-examination of the former wife by Mr. Johnson, the following 

questions and answers transpired:

Q. [by Mr. Johnson] Now let’s talk about the time 

periods and frames as what we have at issue here. First 

of all, isn’t it true, ma’am, that nonpecuniary means nonmoney?

A. I don’t know.

Q. Okay. If I told you that nonpecuniary meant that 

it was not related to a money quantifiable amount, what 

would that mean to you?

A. I don’t understand.

Q. If nonpecuniary meant it is not calculable by 

money, what does that mean to you?

A. It is an asset.
13

Q. And that asset – was the nonpecuniary 

compensatory damages paid to Mr. Vinson as a result of 

essentially an unlawful firing claim, right, an 

employment discrimination claim?

A. I don’t know what it is all for.

The trial court put an end to this fruitless interrogation by tersely

interjecting: “Mr. Johnson, I know what it means.” 

In his direct examination, the former husband explained that 

he had filed a discrimination claim, had gone to trial, eschewing a 

settlement offer, and was awarded “damages.” Over Mr. Webster’s 

objection, the former husband was permitted to testify that the 

$70,000 award was “nonpecuniary” “for stress, for health issues, 

and for putting [him] in a bind financially.” He said, “The . . . 

federal judge awarded me that money for me for what I had been 

put through by my Army Corp [sic] of Engineers boss.”

The second element of damages awarded in the federal 

administrative lawsuit was back pay in the gross amount of 

$112,618.72. However, according to the former husband, his actual 

payout was the “net amount” of $71,082.85, as acknowledged by 

the Department of the Army’s July 14, 2017 letter to Mr. Conti.

During her testimony, the former wife and her attorney set 

about to determine whether the net amount was legitimate.

Through his questioning of the former wife, Mr. Webster

established that if the former husband, in fact, had netted only 

$71,082.85, then around $40,000 was withheld from the $112,618

gross award for “some reason” that could not be explained in terms 

of typical federal withholding. The former wife testified that she 

and Mr. Webster ran the amount through a computer software 

program known as “FinPlan” to calculate “federal income taxes, 

Social Security, and Medicare to determine the correct amount of 

withholding.” Utilizing the FinPlan calculations, and taking into 

account head-of-household and child exemptions, the former wife 

claimed that the correct amount of back pay the former husband 

should have received was $83,844, not $71,082.85. The former 

husband objected to the calculation on the basis it was hearsay and 

speculative, but his objection was overruled.
14

For his part, the former husband insisted that he received a 

check for only $71,082 from the $112,618 awarded. He claimed he 

had no control over what amounts were withheld. Furthermore, in 

calculating the marital portion of the $71,082, he excluded the 

months of June 2015 through October 2015. According to the 

former husband, those months were post-filing and, therefore, the 

portion of the award amortized over those months would be nonmarital. He likewise excluded the months from January 2015 to 

June 2015, when the parties were separated. His figure for the 

marital portion of back pay was $35,541. The former husband

explained his request for an unequal distribution of those portions 

of the back pay that accrued after the parties had separated on the

following grounds: “We were living separately, we had our own 

separate incomes, we were not paying each other’s bills, [and] we 

had no association whatsoever.”

The third component of the administrative damages award

was the former husband’s front pay from November 2016 through 

April 1, 2017. The former wife agreed that it was a non-marital 

asset. 

Also during the marriage, the former husband had a “BB&T 

account.” The former wife agreed that the account was solely in her 

husband’s name. It was established that on April 12, 2010, 

$32,962.97 was deposited into the account. A second deposit of 

$31,728.37 was deposited on May 7, 2015. The former husband 

testified at length about the circumstances under which he 

attained the money in the account. He explained that the 

investment account was opened prior to his mother’s death and 

that he and his brother had invested money for her in the account. 

He further testified that the funds were used strictly for his 

mother’s benefit until they passed to him and his brother upon her 

death. He testified that the funds had been gifted to him by his 

mother and were never co-mingled with marital funds. 

Furthermore, no contributions had been made to the account

during the marriage. In her pre-trial deposition, the former wife 

acknowledged that she considered the account to be non-marital 

property.

Next, the former husband testified that he had made 100

percent of the mortgage payments on the marital home following 
15

the parties’ separation and prior to entry of the final judgment.

The pay down on the principal of the mortgage was due solely to 

his payments. He claimed that the amount of equity created during 

that period totaled $4,903.32 in his favor.

While exercising equal time-sharing of their daughter prior to 

the September 2016 agreement, the parties had agreed to rotate 

the child dependency tax exemption. Nevertheless, the former wife 

claimed the exemption two years in a row. In 2016, the child 

resided primarily with the former husband, but the former wife 

claimed her as an exemption in both 2015 and 2016. Consequently, 

the former husband testified to losing $1615.

In her direct examination, the former wife testified she “was 

suggesting that each [party] maintain $100,000 worth of life 

insurance on [their] respective lives naming the other party as 

beneficiary.” The former husband made a similar plea in his 

counter-petition for dissolution of marriage. The only other 

evidence relevant to the insurance issue established that the 

former husband was sixty-four years old.

D.

In its Final Judgment of Dissolution of Marriage, the trial 

court ordered the parties to share parental responsibility for their 

daughter “per the terms of the Parenting Plan of Mary Grace 

Vinson and Tommy Vinson for Final Judgment previously entered 

in this action on February 13, 2017.” It required that both parties 

maintain life insurance policies of at least $100,000, naming the 

other party as the sole beneficiary “in trust for the parties’ minor 

child.” The trial court adopted the former wife’s date of filing her 

petition as the cut-off date for designating the parties’ assets and 

liabilities as marital or non-marital for purposes of equitable 

distribution, according to section 61.075(7), Florida Statutes. 

The marital assets were identified in a table entitled “Marital 

Assets,” which contained two columns describing the assets and 

their values and, next, a column each for the former husband and 

the former wife in which the trial court indicated the marital asset

(or liability). In the column regarding the former husband’s receipt 

of back pay, the trial court arrived at the net amount as follows: 

“$112,618.72 gross. Net $71,082.85. Received by H on May 24, 
16

2017. 74.1% MARITAL. Covers time frame of 3/22/14-10/31/15. 

Deductions way too high.” Accordingly, the parties each received 

in their respective columns a net value of the back pay in the 

amount of $83,844, as calculated by the former wife. The full 

$70,000 of the alleged “nonpecuniary compensatory damages” was 

placed in the former husband’s column, indicating that the trial

court found it to be a marital asset.

Following the table, the trial court set forth line-item 

explanations. Regarding the back pay calculation, the trial court 

explained its findings as follows:

As to the “Back Pay” component, Wife’s Exhibit 18, 

properly calculates that the parties were married to each 

other (up until the date of filing) for 435 days and with 

this claim component spanning a period of 587 days. The 

Wife properly calculated that 74.1% of this component is 

“marital.” That percentage equates to $83,844 of the 

gross distribution.

When the “Back Pay” settlement was paid to 

Husband, $41,536 was deducted. The Husband provided 

to the court no itemization of what those deductions were 

for. In Wife’s Exhibit 20, the FinPlan calculations state 

that after deducting Federal Income Taxes, Social 

Security, and Medicare contributions, the Husband’s true 

“net” pay is slightly more than 80% of the gross 

distribution. So, the court accepts as accurate the Wife’s 

use of $16,768 deduction which is 20% of the gross 

marital portion of this claim.

Regarding the $70,000, earmarked as “nonpecuniary 

compensatory damages” by the former husband, the trial court

commented:

This is the “nonpecuniary compensatory damages” of 

$70,000 pertaining to the Army Corps of Engineers 

claims. Both parties have cited the Weisfeld[∗] case which 

states that “non economic compensatory damages for 

 ∗ Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989). 
17

pain and suffering” are to be classified as the injured 

party’s non-marital asset. There is no evidence as to this 

portion of the claim being even labeled for any genuine 

“pain and suffering.” In the absence of any document 

whatsoever which states these damages are for “pain and 

suffering” then the court finds this asset accrued during 

the marriage is properly classified as a marital asset.

The trial court next turned to the former husband’s BB&T

account. It found that the former husband “met his burden of 

showing the nature of the monetary asset being non-marital.” 

Therefore, that asset, valued at $64,691, was not included in the 

equitable distribution table under marital assets.

Lastly, in an effort to assure that all marital assets and 

liabilities were equally divided between the parties, the trial court 

ordered the former husband to pay to the former wife an

“equalization payment” of $80,596. The trial court specifically 

noted that the former husband “testified that he has uncashed 

checks in his safe totaling that amount or more.” Nevertheless, the 

trial court ordered that the equalization payment be reduced by 

$2400, the amount the court found equaled the amount of child 

support the former wife should have paid to the former husband 

for the twelve months preceding the final hearing, in accordance 

with the September 2016 stipulation. 

Additionally, the trial court found that the former husband 

“has the uncontroverted better ability to pay the Wife’s attorney’s 

fees and court costs . . . .” However, it went on to state that the 

former wife owed the former husband “unspecified attorney’s fees 

and costs associated with the Wife’s first sought and obtained 

continuance herein.” On the other hand, it further noted that the 

former wife “later had to incur attorney’s fees and costs associated 

with successful [sic] Motion to Compel.” To resolve the competing 

claims, the trial court awarded to the former wife 50% of her fees 

and costs incurred in the dissolution proceeding and retained 

jurisdiction to ascertain the amount of said fees and costs.

 As made abundantly clear by the instant appeal and crossappeal, both parties claim error from the trial court’s decisions in 

this litigation and in its findings of fact and conclusions of law 
18

contained in the final judgment. In the following sections, we will 

address their points of alleged error in turn.

II. FORMER WIFE’S APPEAL

A. The stipulated time-sharing agreement and the trial

court’s parenting plan.

In her first and second points on appeal—combined for 

purposes of her Initial Brief—the former wife contends that the 

trial court erred in failing to set forth in its “Parenting Plan of 

Mary Grace Vinson and Tommy Vinson for Final Judgment” the

specific factual findings concerning the best interests of the child

as enumerated in section 61.13(3), Florida Statutes. Specifically, 

the factors the former wife claims should have been considered are 

those set forth in section 61.13(3)(m) and (s) regarding, 

respectively, evidence of domestic violence and the developmental 

stages and needs of the parties’ minor child. She further argues 

that the trial court improperly considered itself bound by the 

parties’ September 2016 time-sharing agreement, thereby 

improperly abdicating its responsibility to make specific findings 

as to the best interests of the parties’ minor child regarding child 

support, custody, and visitation.

“It is well settled that a trial court has broad discretion in 

child custody matters; its decision in that regard is reviewed for a 

clear showing of an abuse of discretion.” Adair v. Adair, 720 So. 2d 

316, 317 (Fla. 4th DCA 1998). Moreover, although section 61.13(3) 

does indeed set forth a lengthy list of factors concerning the best 

interests of the child that the trial court should evaluate in 

determining issues of shared parental responsibility, “there is no 

statutory requirement that the trial court make specific written 

findings in a custody decision.” Id.; accord Neville v. McKibben, 227 

So. 3d 1270, 1273 (Fla. 1st DCA 2017); Hindle v. Fuith, 33 So. 3d 

782, 785 (Fla. 5th DCA 2010) (“Thus, a final judgment is not 

erroneous simply for failing to list the factors on which it relied in 

making its determination.”); Miller v. Miller, 842 So. 2d 168, 169 

(Fla. 1st DCA 2003). “However, the trial court must find, at a 

minimum, that its custody determination is in the best interests of 

the child.” Neville, 227 So. 3d at 1273; but see Fazzaro v. Fazarro, 

110 So. 3d 49, 51 (Fla. 2d DCA 2013) (holding there was no logic or 
19

justification for the trial court’s decision to grant one party 

ultimate responsibility over all decisions affecting the child).

To the extent that the former wife seeks reversal based on the 

trial court’s failure to make specific findings under section 

61.13(3), we hold that she waived that claim by failing to apprise 

the trial court of the point in a motion for rehearing, so that the 

court could have addressed the matter while the facts were still 

fresh and easily recollected. Frost v. Frost, 227 So. 3d 227, 227 (Fla. 

1st DCA 2017); Freiha v. Freiha, 197 So. 3d 606, 608 (Fla. 1st DCA 

2016); Welch v. Welch, 22 So. 3d 153, 155-56 (Fla. 1st DCA 2009); 

Helling v. Bartok, 987 So. 2d 713, 715 n.1 (Fla. 1st DCA 2008) 

(citing cases). Nor do we find that she has demonstrated

fundamental error. Cf. Freiha, 197 So. 3d at 609. As we did in 

Frost, we find this case distinguishable from Freiha, which 

involved a total failure on the trial court’s part to address the focal 

issue of the litigation, that being the need for a parenting plan that

included a detailed time-sharing schedule. Here, in contrast, the 

trial court heard lengthy testimony concerning the parties’ revised 

time-sharing plan, determined that the parties had entered into 

the plan voluntarily and without coercion, and further found that 

the plan was in the child’s best interests.

However, the former wife makes the additional claim that the 

trial court abdicated its authority to consider the best interests of 

the child to the parties by adopting their September 2016 timesharing agreement. Although the former wife did not raise this 

alleged error in a motion for rehearing, insofar as section 

61.13(2)(c), Florida Statutes, mandates that the trial court “shall 

determine all matters relating to parenting and time-sharing of 

each minor child of the parties in accordance with the best 

interests of the child,” whether a trial court abdicates that 

authority takes on fundamental proportions. Accordingly, we will 

consider the point under the instant facts for fundamental error. 

The former wife’s argument under this point is predicated on the 

well-established law expressed in Higgins v. Higgins, 945 So. 2d 

593 (Fla. 2d DCA 2006), and Lane v. Lane, 599 So. 2d 218 (Fla. 4th 

DCA 1992). We discuss the cases in reverse order below.

First, it is clear that Florida courts respect separation 

agreements as long as they are fair “and are not tainted by fraud, 
20

overreaching or concealment.” Sedell v. Sedell, 100 So. 2d 639, 642 

(Fla. 1st DCA 1958). But, “[t]he ‘best interests’ of the child takes 

predominance over any agreement between the parents and must 

be independently determined by the trial court.” Puglisi v. Puglisi, 

135 So. 3d 1146, 1148 (Fla. 5th DCA 2014). As the Fourth District 

ruled in Lane, “a trial court’s responsibility to the child cannot be 

abdicated to any parent [or to] any expert[.]” 599 So. 2d at 219. 

Rather, “[t]hat heavy responsibility mandates that a court is not 

bound by any agreement between parents, nor by the opinions of 

any expert or group of experts.” Id.

Lane involved an appeal by the father of a final judgment 

limiting his telephone contact with his son, restricting his 

visitation to “supervised,” and domesticating a Michigan divorce 

decree that granted “reasonable” visitation. The father and mother 

had earlier agreed at mediation to be bound by a psychologist’s 

opinion concerning whether visitation should be supervised or 

unsupervised. Both that psychologist, as well as a second 

psychologist—who did not interview the child—favored 

unsupervised visitation. No hearing was held on the matter. 

Instead, in entering its judgment, the trial court considered only 

those printed reports, the father’s pre-dissolution Michigan 

convictions, and “a novel time saver of some 14 pages of a ‘proffer’ 

[] stating the position of each parent.” Id. The Fourth District 

reversed the trial court’s judgment. It held that the “rationale” for 

the above-stated rule that “a court is not bound by any agreement 

between parents, nor by the opinions of any expert or group of 

experts,”

is the ability of the trial judge to observe the demeanor 

and personalities of the parties and witnesses, to discern 

delicate vibrations and hidden influences, and to 

interpret nuances that are invisible in a cold record. 

Custody and visitation are too important to both the child 

and parents to restrict a determination to a reading of 

unemotional and dispassionate words on a printed page.

Id. In short, the trial court in Lane should have held a hearing to 

determine the best interests of the child.

While Higgins involved a different factual scenario, the facts 

are no less compelling than those in Lane. In Higgins, the husband, 
21

the wife, and the trial court engaged in ex parte letter writing 

between the three in an attempt to resolve the issue of the wife’s 

failure to abide by the terms of the parties’ settlement 

agreement—which had been incorporated in the final judgment of 

dissolution—as well as the wife’s announced intention to move 

with the parties’ son to North Florida. At a hearing, where the 

parties appeared pro se, the judge held the wife in contempt, 

ordered her to be incarcerated, and modified child custody. Later 

in the day, the judge released the wife, brought the parties back 

into court, and ordered them to proceed to mediation. Still later, 

the judge signed what the Second District described as “an odd 

document” entitled “‘Order,’” indicating at the bottom that it was 

“so ordered” by the judge, though it was clear from the body of the 

order that it was an agreement entered into by the parties. The 

order transferred official custody of the minor child to the husband.

Higgins, 945 So. 2d at 595. 

On appeal, the wife challenged the order on the basis that 

there had been no petition for such relief filed and modification 

had been outside the scope of the hearing. The Second District held 

that “the order would be reversible for those reasons if it was 

intended to reflect the judge’s determination that the best 

interests of the parties’ child warranted a custody modification.” 

Id. Instead, it adopted the husband’s view that the order “simply 

incorporated and approved the terms of the mediation agreement 

signed by the parties.” Id. The Second District went on to consider 

the record before it and discerned the following problems:

The record amply demonstrates that the circuit judge did 

not guard against the strong possibility that Ms. Higgins 

agreed to surrender custody of her son for reasons other 

than the child’s best interests. To the contrary, the record 

shows that she did so under highly coercive 

circumstances that were devised by the judge himself. 

With no prior notice and no counsel, this woman was 

ordered directly to mediation by the very judge who had 

just summarily held her in criminal contempt and placed 

her in custody to serve a six month jail sentence. 

Moreover, one of the judge’s stated reasons for the 

contempt conviction was his announced determination 

that Ms. Higgins’s attempt to relocate with the child was 
22

barred by court order and therefore was unlawful. As 

previously noted, this was simply untrue. Thus, in 

addition to the foregoing, the judge sent this woman into 

mediation after seriously misadvising her about her 

rights.

Id. at 596-97 (footnote omitted). Hence, the Second District 

concluded that the trial court abused its discretion, explaining:

Whether the judge in this case approved a hastily drafted 

agreement, or whether he ordered a change of custody 

without taking evidence, no reasonable person with 

knowledge of the facts of this case would not question the 

propriety of his decision. . . . No reasonable judge, 

apprised of the highly coercive circumstances under 

which this child custody agreement was made, would 

have approved it.

Id. at 597 (citations omitted). Again, as occurred in Lane, the judge 

in Higgins failed to personally take testimony to ascertain the best 

interests of the child.

Although not cited by the former wife, this Court addressed 

these same concerns in Sparks v. Sparks, 75 So. 3d 861 (Fla. 1st 

DCA 2011). In Sparks, the parties entered into a pro se marital 

settlement agreement in which they agreed upon the joint custody 

of their minor child and set forth a schedule of rotating physical 

custody. The father then filed a pro se petition for dissolution of 

marriage in which he sought sole custody of the child, without 

mentioning the agreement. In her answer and counter-petition, 

the mother alleged that custody and visitation should be awarded 

pursuant to the agreement and, on those grounds, moved for a 

partial summary judgment on the issue of custody. This Court 

emphasized the rule that “‘a trial court is not bound by any 

agreement between parents, nor by the opinions of any experts or 

group of experts.’” Sparks, 75 So. 3d at 862. (quoting Lane, 599 So. 

2d at 219). We next noted:

The trial court denied the motion for partial summary 

judgment and reserved “the right to evaluate a previously 

executed marital settlement agreement to determine if 

said agreement is in the best interests of the minor child, 
23

which is to be determined after an evidentiary hearing.” 

At the subsequent hearing, however, the trial court 

announced, over the objection of the father, that it was 

limiting its inquiry to the issues of whether the 

settlement agreement was a product of fraud or duress 

and whether the custody and visitation provisions of the 

agreement were facially unreasonable. Because the 

father had not formally moved to set aside the marital 

settlement agreement, the father would be bound by that 

agreement absent a finding of fraud, duress or 

unreasonableness. Finding none of these things, the trial 

court incorporated the marital settlement agreement in 

its amended final judgment. It also adopted the parenting 

plan submitted by the mother, a plan which, contrary to 

the agreement, did not allow for liberal rotation of 

physical custody.

Id. at 861-62. We reversed the trial court’s decision because the 

court would not permit the father to present evidence as to 

whether an award of custody pursuant to the agreement was in 

the best interests of the child, explaining:

By his dissolution petition and his affidavit in opposition 

to partial summary judgment, the father clearly advised 

the trial court that he sought a custody award without 

regard to the previous settlement agreement. Further, in 

his affidavit the father asserted that shared custody of 

the child with the mother was certainly not in the best 

interest of the child given certain averments. Because 

section 61.13(2)(c)[, Florida Statutes] requires a trial 

court to determine all parenting issues in accordance 

with the best interests of the child, and because the father 

asserted below that the child custody and visitation 

provisions of the settlement agreement are not in the best 

interests of the child, the trial court erred in denying an 

evidentiary hearing on the issues of custody and 

visitation.

Id. at 862.

In the present case, we find the facts differ from those in 

Sparks, Higgins, and Lane. Here, in contrast to Sparks, the trial 
24

court did not deny the former wife a hearing on her motion to set 

aside the settlement agreement and to present evidence of the best 

interests of the child. Neither did the trial court orchestrate the 

proceedings so as to deny the former wife her due process rights,

as did the trial court in Higgins. Finally, the trial court did not

base its decision to adopt the parties’ time-sharing plan on a cold 

record, as did the trial court in Lane. Instead, the court held a 

hearing and heard testimony from the former wife, who was 

represented by counsel, as well as testimony from the former wife’s

first attorney, who originally assisted the parties in reaching the 

agreement. 

As a result, the trial court was in a better position than we are 

now “to discern delicate vibrations and hidden influences, and to 

interpret nuances” in the testimony. Lane, 599 So. 2d at 219. The 

record supports the conclusion that the trial court considered the 

credibility of the witnesses, rather than deferring that 

responsibility to this Court, an additional, pivotal point in Lane. 

Id. (“Nor can this court substitute its opinion for that of the trier 

of fact.”). Moreover, the parties were certainly not strangers to 

stipulated agreements, as evidenced by the January 16, 2016 

Stipulated Temporary Order. 

Therefore, we conclude that the former wife has not carried 

her burden of demonstrating that the trial court “abdicated” its 

duty to determine the best interests of the child in adopting the 

parties’ parenting plan. The court’s decision to do so—following an 

evidentiary hearing—was based on competent, substantial 

evidence. Accordingly, under the circumstances of this case, we 

hold the trial court did not fundamentally err in denying the 

former wife’s motion to set aside the time-sharing plan in formally

adopting it, and incorporating it into the final judgment.

B. The trial court’s denial of the former wife’s motion for 

contempt.

Under what is the former wife’s third point, she argues that 

the trial court should have found that the former husband was in 

contempt of court by not paying child support in accordance with 

the January 7, 2016 Stipulated Temporary Order, since the court 

had not formally adopted the September 26, 2016 parenting plan 

as required by section 61.046(14)(a)1., Florida Statutes. We 
25

conclude the trial court did not abuse its discretion in denying the 

former wife’s motion. The court evaluated the evidence, the most 

prominent being the intervening September 2016 parenting plan 

agreement—by which the former husband had abided—and 

properly found it sufficient to support its finding that the former 

husband’s failure to pay the monthly support due under the 

January 2016 order was not willful. See Bowen v. Bowen, 471 So. 

2d 1274, 1278-79 (Fla. 1985). Consequently, we hold that the 

former wife has failed to demonstrate reversible error under this 

point.

III. FORMER HUSBAND’S CROSS-APPEAL

A. “Non-pecuniary compensatory damages” as a marital 

asset.

Identification of an asset as marital or non-marital for 

purposes of equitable distribution is reviewed de novo. Puskar v. 

Puskar, 29 So. 3d 1201 (Fla. 1st DCA 2010).

When a trial court makes an equitable distribution 

award, it must provide specific factual findings that 

identify and distinguish the marital assets from the nonmarital assets. See § 61.075(3)[, Florida Statutes]

(requiring that “any distribution of marital assets or 

marital liabilities shall be supported by factual findings 

in the judgment or order based on competent substantial 

evidence”).

Smith v. Smith, 996 So. 2d 924, 925 (Fla. 1st DCA 2008). In 

Florida, when a trial court is called upon to determine the marital 

or nonmarital status of a monetary award received by a spouse as 

damages stemming from a lawsuit, a workers’ compensation claim, 

or from disability, it must utilize the “analytical approach” adopted 

by the Florida Supreme Court in Weisfeld v. Weisfeld, 545 So. 2d 

1341, 1346 (Fla. 1989). Under that approach,

the damage award is allocated in accordance with the 

following: (a) the separate property of the injured spouse 

includes the noneconomic compensatory damages for 

pain, suffering, disability, and loss of ability to lead a 

normal life and the economic damages which occur 
26

subsequent to the termination of the marriage of the 

parties, including the amount of the award for loss of 

future wages and future medical expenses; (b) the 

separate property of the noninjured spouse includes loss 

of consortium; and (c) the marital property subject to 

distribution includes the amount of the award for lost 

wages or lost earning capacity during the marriage of the 

parties and medical expenses paid out of marital funds 

during the marriage. The marital property should also 

include those funds for which no allocation can be made.

Id. at 1345 (emphasis added) (relying on the principles set forth in 

Johnson v. Johnson, 346 S.E.2d 430 (1986)). In adopting this 

approach, the supreme court advised: “[A]pplication of this 

approach requires an understanding by the trial judge of the 

purpose of the damage award.” Id. at 1346. That observation 

reiterates a declaration made by the Third District Court of Appeal 

in Weisfeld v. Weisfeld, 513 So. 2d 1278 (Fla. 3d DCA 1987), and 

quoted by the supreme court in its opinion affirming the Third 

District’s decision: “[T]he trial court’s inquiry should focus ‘on the 

elements of damages the particular award was intended to remedy 

or, stated another way, the purpose of the award . . . .’” Weisfeld 

545 So. 2d at 1343-44 (quoting Weisfeld, 513 So. 2d at 1281).

In the present case, in its equitable distribution table, the trial 

court placed all of the $70,000 award in the husband’s column, 

thereby denominating it as a marital asset on the basis of the letter 

from his attorney, Adam J. Conti, to the Department of the Army, 

and the two letters he received in response. But that decision 

misperceived the evidence. In Conti’s letter, the $70,000 was 

designated as “nonpecuniary compensatory damages,” while the 

remainder of the award was itemized as back pay, front pay, and 

attorney’s fees. In neither of the letters from the Department of the 

Army was the $70,000 designated “nonpecuniary compensatory 

damages” or as any other form of specific damages. Instead, it was 

treated simply as a separate recovery within “the Army’s Final 

Decision for implementation concerning the subject EEO 

complaint[.]” (The administrative decision, itself, was not 

presented in evidence.)
27

As stated above, after the equitable distribution table, the 

trial court set forth specific findings explaining its distribution 

decisions. To recap, concerning the $70,000, the court declared:

This is the “nonpecuniary compensatory damages” of 

$70,000 pertaining to the Army Corps of Engineers claim. 

Both parties have cited the Weisfeld case which states 

that “non economic compensatory damages for pain and 

suffering” are to be classified as the injured party’s nonmarital asset. There is no evidence as to this portion of 

the claim being even labeled for any genuine “pain and 

suffering.” In the absence of any document whatsoever 

which states these damages are for “pain and suffering” 

then the court finds this asset accrued during the 

marriage is properly classified as a marital asset.

The court then went on to find that the former wife had made no 

claim to any portion of the former husband’s award of front pay.

It is clear from the forgoing that the trial court attempted to 

apply the analytical approach from Weisfeld in seeking to 

denominate the $70,000 damage award as marital. There is, in the 

former husband’s argument, a striking oxymoron created by 

describing a monetary value of $70,000 as “nonpecuniary.” 

“Nonpecuniary” is defined as “not consisting of money.” See

“Nonpecuniary,” Merriam-Webster Online Dictionary, 

https://www.merriam-webster.com/dictionary/nonpecuniary (last 

viewed Aug. 29, 2018).

Notwithstanding the incongruous terminology, it is clear from 

the context of the questioning that the parties and the trial court 

utilized the term “nonpecuniary” with the intent to mean 

“noneconomic,” as that term was used in Weisfeld. Although the 

three letters admitted into evidence do not explicitly specify that 

the $70,000 was awarded to compensate the former husband for

any noneconomic pain and suffering he might have endured as a 

result of the alleged harassment during his employment and his

subsequent firing, the former husband testified that that is 

precisely what the $70,000 was intended to compensate him for. 

And, because the former husband’s testimony went unrebutted

and was consistent with Mr. Conti’s allocation of the $70,000 

portion of the award as “compensatory,” it was sufficient to 
28

establish that the $70,000 was the former husband’s separate 

property, not subject to equitable distribution as a marital asset.

White v. White, 705 So. 2d 123, 124 (Fla. 2d DCA 1998) (holding 

that where the “[t]he only testimony regarding the purpose of the 

award came from the husband,” “[t]he unrebutted evidence 

established that the personal injury award was the husband’s 

separate property, not subject to equitable distribution”); accord

Gibbons v. Gibbons, 10 So. 3d 127, 132-33 (Fla. 2d DCA 2009); 

Lacher v. Lacher, 993 P.2d 413 (Alaska 1999). Accordingly, we hold 

the trial court erred in designating the $70,000 as a marital asset.

B. The trial court’s adoption of the former wife’s equitable 

distribution scheme.

Under this point, the former husband challenges (1) the trial 

court’s unequal distribution of the marital assets; (2) its failure to 

award him sole ownership of the lawnmower, a Coke machine, and 

a gumball machine located in the former wife’s house, which the 

former wife agreed below belonged to him; (3) the trial court’s 

decision to adopt the former wife’s valuation of the net back-pay 

awarded the former husband, which was accomplished through

use of the FinPlan software program; and, (4) the trial court’s 

decision to order the former husband to make a lump sum 

equalization payment of $80,596 to the former wife. 

Due to our decision to reverse the equitable distribution to the 

extent that the trial court misclassified the $70,000 as a marital 

asset—which necessarily affects the overall plan for equitable 

distribution of the marital property—we are compelled to vacate

the entire equitable distribution scheme and remand the cause for 

the trial court to reconsider equitable distribution consistent with 

this decision, in order to do equity and justice to both parties.

Young v. Young, 606 So. 2d 1267, 1270 (Fla. 1st DCA 1992); 

Sweeney v. Sweeney, 583 So. 2d 398, 399 (Fla. 1st DCA 1991).

However, our resolution of the former husband’s remaining points 

on cross-appeal should be instructive to the trial court on remand.

First, the trial court must reconsider its valuation of the 

former husband’s award of back pay. The only competent evidence 

of record is the former husband’s testimony that he received 

$71,082 out of the $112,618 awarded him in back pay. See White, 

705 So. 2d at 124. That figure was consonant with the amount set 
29

forth in the husband’s exhibits—the letters from the Department 

of the Army. The trial court’s rejection of that figure in favor of the 

former wife’s FinPlan software calculation of $83,844 was based 

on speculation and not on any other competent, substantial 

evidence presented by the former wife disputing the former 

husband’s testimony. Therefore, the trial court abused its 

discretion in utilizing the $83,844 number. On remand, the court 

should use the figure of $71,082 in determining the value of that 

marital asset.

We also agree with the former husband that the trial court 

erred when it provided that if the former husband failed to pay the 

lump sum equalization payment within ten days of the entry of the 

final judgment, the amount due would be reclassified as alimony.

First, at the outset of the hearing, the former wife, through 

counsel, advised the trial court that there would be “no claim for 

alimony.” Second, once reclassified, the so-called alimony 

payments were expressly ordered “not [to] terminate upon the 

Wife’s death or remarriage and shall not be subject to termination 

or modification in the event the Wife enters into a supportive 

relationship.” The latter language is wholly at odds with the 

definitions of the various forms of alimony authorized by section 

61.08(5)-(8), Florida Statutes, all of which provide that the alimony 

shall end upon the death or remarriage of the receiving spouse. 

Furthermore, as the former husband points out, a lump sum 

payment award that effects a property distribution is not 

enforceable by contempt, as are alimony awards. Bongiorno v. 

Yule, 920 So. 2d 1209, 1210 (Fla. 1st DCA 2006); see also Braswell 

v. Braswell, 881 So. 2d 1193, 1198 (Fla. 3d DCA 2004). Accordingly, 

on remand, in reconsidering the equitable distribution scheme, the 

trial court should not reclassify any equalization payments as 

alimony as a sanction for the former husband’s failure to make that 

lump sum payment.

Lastly, because the former wife agreed that the former 

husband is entitled to sole ownership of the lawnmower, the Coke 

machine, and the gumball machine, the trial court is instructed on 

remand to award those specific items to the former husband.

We dismiss as unfounded, however, the former husband’s 

claim that the trial court abused its discretion in failing to order 
30

an unequal distribution of $17,770.50, representing that portion of 

the back pay—which was otherwise held to be a marital asset—

that accrued during the period of time between December 28, 2014, 

to June 1, 2015 (the date of filing), when the parties were 

separated. The decisions relied on by the former husband—Moon 

v. Moon, 594 So. 2d 819 (Fla. 1st DCA 1992); Krafchuk v. Krafchuk, 

804 So. 2d 376 (Fla. 4th DCA 2001); and Heslop v. Moore, 716 So. 

2d 276 (Fla. 3d DCA 1998)—represent extreme factual scenarios 

and substantial periods of separation not equaled in the present 

case. See Boyle v. Boyle, 30 So. 3d 665, 666-67 (Fla. 5th DCA 2010). 

Moreover, as recognized in Boyle, the statute in Moon does not 

comport with the language of the current statute. Id. at 666 n.1. In 

the present case, the separation was a mere five months, and no 

compelling evidence was submitted that would shift the equities in 

favor of the former husband during the separation. The former 

husband clearly has more liquid assets than does the wife. It is 

submitted, therefore, that the trial court did not abuse its 

discretion in not making an unequal distribution of the assets 

during the period of separation. See Cooley v. Cooley, 43 Fla. L. 

Weekly D1965, D1967 (Fla. 2d DCA Aug. 24, 2018) (reversing the 

trial court’s decision to make an unequal distribution; 

distinguishing Heslop and Boyle, and concluding “there was no 

need for an unequal distribution based on the parties living 

separate lives,” observing that “the parties were married for eight 

years and separated after four years,” “[t]he petition for dissolution 

was filed less than two years after the separation date,” and the 

parties “agreed to use the date of separation for identifying and 

valuing nearly all of the marital assets and liabilities” except for 

the marital home). 

C. The trial court’s ordering the former husband to 

maintain a policy of life insurance and to pay the former 

wife’s attorney’s fees.

In its final judgment, the trial court ordered both parties to 

“keep in full force and effect” life insurance policies of at least 

$100,000, naming the other party as beneficiary of such policy “in 

trust for the parties’ minor child,” “for so long as either party has 

an obligation to pay child support.” Notably, in his counter-petition 

for dissolution of marriage, the former husband pleaded “that both 
31

parties be required to maintain life insurance on his or her life as 

security for child support, with the other party designated as the 

beneficiary of same in trust for the use and benefit of the parties’ 

minor child, on both a temporary and permanent basis.” Having 

requested what the trial court ultimately ordered, we conclude the 

former husband has waived any objection to the trial court’s 

granting of that request. Furthermore, to the extent the former 

husband challenges a lack of findings regarding the need and 

ability to pay for a life insurance policy, those omissions should 

have been brought first to the trial court’s attention in a motion for 

rehearing, which it was not. See Anaya v. Anaya, 987 So. 2d 806, 

807 (Fla. 5th DCA 2008) (Mem.) (citations omitted) (“A party may 

not complain about ‘inadequate findings in a dissolution case 

unless the alleged defect was brought to the trial court’s attention 

in a motion for rehearing.’”).

For the same reason, because the former husband’s failure to 

raise in a motion for rehearing the trial court’s lack of findings as 

to the former wife’s need for her attorney’s fees to be paid, and the 

former husband’s ability to pay the fees, the issue of the court’s 

failure to make those findings was not preserved for review. A 

party will not be heard to complain of an absence of factual 

findings for the first time on appeal. Brock v. Brock, 229 So. 3d 425 

(Fla. 1st DCA 2017) (Mem.); Byers v. Byers, 149 So. 3d 161, 161–

62 (Fla. 1st DCA 2014); Furr v. Furr, 57 So. 3d 914, 914 (Fla. 1st 

DCA 2011) (Mem.); Mize v. Mize, 45 So. 3d 49, 49 & n.1 (Fla. 1st 

DCA 2010); Welch, 22 So. 3d at 155–56; Simmons v. Simmons, 979 

So. 2d 1063, 1064 (Fla. 1st DCA 2008); Owens v. Owens, 973 So. 2d 

1169, 1169 (Fla. 1st DCA 2007).

IV. CONCLUSION

For the reasons stated above, the Final Judgment of 

Dissolution of Marriage is affirmed, in part, reversed, in part, and 

remanded for further proceedings consistent with this opinion.

AFFIRMED, in part, REVERSED, in part, and REMANDED with 

instructions.

MAKAR and OSTERHAUS, JJ., concur.
32

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Mary Grace Vinson, pro se, Appellant/Cross-Appellee.

Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for 

Appellee/Cross-Appellant.