Joshua S. Winegar v. Gabrielle D. Winegar

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         JOSHUA S. WINEGAR,
                        Appellant/Cross-Appellee,

                                     v.

                        GABRIELLE D. WINEGAR,
                        Appellee/Cross-Appellant.

                             No. 4D2024-2076

                              [April 29, 2026]

  Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Joseph Murphy, Senior Judge; L.T.
Case No. 502019DR011563XXXXSB.

  Jay Mitchell Levy of Jay M. Levy, P.A., Miami, for appellant/cross-
appellee.

   Sara Jennifer Singer of Singer Family Law, Pompano Beach, and Erin
Pogue Newell of Open Book Appeals, Fort Lauderdale, for appellee/cross-
appellant.

LOTT, J.

   Under Florida Family Law Rule of Procedure 12.530(a), “[t]o preserve
for appeal a challenge to the failure of the trial court to make required
findings of fact in the final judgment, a party must raise that issue in a
motion for rehearing under this rule.” Fla. Fam. L. R. P. 12.530(a) (2024).

   This appeal from a final judgment of dissolution of marriage highlights
the usefulness of Rule 12.530(a)’s preservation requirement. The rule
recognizes the impossibly busy dockets that circuit courts face, family
divisions being no exception. Errors creep in to even the most diligent
judges’ orders. The rule gives trial judges a mulligan.

   The trial court’s final judgment in this case was facially deficient in a
number of respects—failing to identify and distribute certain assets, failing
to make sufficient factual findings, and math errors. But these errors were
timely brought to the trial court’s attention in a Rule 12.530 motion for
rehearing. No harm, no foul—yet.
   The trial court, being presented with these concerns in the motion,
could have, and should have, taken heed of these identified errors and
issued a corrected judgment. Instead, the trial court summarily denied
the motion. Now we have error.

   We fully appreciate that litigants frequently abuse opportunities to seek
rehearing or reconsideration by merely rearguing matters that have
already been properly considered and rejected. 1 But that does not mean
that motions for rehearing are presumptively deniable or may be taken
with a grain of salt. Trial courts would be wise to give due consideration
to such motions, particularly where they raise issues of failure to make
required findings or address certain issues, so that time and money may
be better spent than in the appellate court.

   We divide our opinion into two parts. First, we identify and reverse
those errors that sound in failure to make certain findings. Second, we
address the only legal error raised in the appeal, concerning the marital
versus nonmarital character of a pre-marital brokerage account that was
pledged as collateral and used to obtain and repay a loan used for marital
purposes.

   I.     The trial court erred by failing to make sufficient findings

    Husband raises a number of arguments that the trial court erred by
failing to make sufficient findings. Wife raises similar arguments on cross-
appeal. We agree with most of these arguments.

1 See, e.g., Elliott v. Elliott, 648 So. 2d 135, 135 (Fla. 4th DCA 1994) (“Time and

time again the appellate courts have endeavored to inform the bar about the
importance of adhering to rule 9.330 expressing the hope that the bar will heed
the Rule’s command that the motion shall not reargue the merits of the court’s
order.”) (quotations omitted); Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100,
1101 (Fla. 4th DCA 1993) (“Certainly it is not the function of a petition for
rehearing to furnish a medium through which counsel may advise the court that
they disagree with its conclusion, to reargue matters already discussed in briefs
and oral argument and necessarily considered by the court, or to request the
court to change its mind as to a matter which has already received the careful
attention of the judges, or to further delay the termination of litigation.”) (citation
and quotation omitted); McDonnell v. Sanford Airport Auth., 200 So. 3d 83, 84–85
(Fla. 5th DCA 2015) (motions for rehearing are “not a vehicle through which an
unhappy litigant or attorney may reargue the same points previously presented,
or discuss the bottomless depth of the displeasure that one might feel toward this
judicial body as a result of having unsuccessfully sought appellate relief”)
(cleaned up).

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   First, Husband argues that the trial court failed to equitably distribute
certain liabilities. We agree that the trial court did not explicitly adopt and
incorporate Wife’s proposed equitable distribution schedule into the final
order or otherwise identify and distribute marital liabilities that were
presented at trial. On remand, the trial court should specifically identify
and distribute all assets and liabilities, preferably in the order’s text or in
a distribution schedule plainly attached to the order. 2

    Second, both Husband and Wife argue that the trial court erred in
valuing Husband’s law practice, without findings or explanation, at
$140,000. Wife’s expert testified that the practice was valued at about
$263,000. Husband argued that the practice should be valued at near
zero. We need not decide who is right, but the trial court failed to explain
how it arrived at the $140,000 figure or identify the substantial, competent
evidence in the record supporting a $140,000 valuation. While we can
appreciate the apparent Solomonic wisdom of the trial court, baby-
splitting must still be supported by competent, substantial evidence. See,
e.g., Mullen v. Mullen, 825 So. 2d 1078, 1079 (Fla. 4th DCA 2002) (holding
that while “a trial court has broad discretion in valuing a retirement
account, the trial court must arrive at an appropriate figure without merely
resorting to an estimation.”) (quotations and citation omitted); Vanzant v.
Vanzant, 82 So. 3d 991, 992–93 (Fla. 1st DCA 2011) (“It appears that the
trial court simply ‘split the difference’ between the values presented by the
parties. This was error.”) (footnote omitted); Augoshe v. Lehman, 962 So.
2d 398, 403 (Fla. 2d DCA 2007) (“The trial court’s valuation must be based
on competent evidence and cannot be determined by splitting the
difference.”) (cleaned up); Blossman v. Blossman, 92 So. 3d 878, 878 (Fla.
1st DCA 2012) (“[I]t appears as though the trial court split the difference
between the two valuations. Florida law prohibits this type of valuation.”).

2 We note that some of the liabilities Husband on appeal seeks to distribute do

not appear to be supported by competent, substantial evidence at trial. No
testimony or other evidence whatsoever was presented as to these liabilities. The
fact that Husband identified liabilities on his pre-trial proposed equitable
distribution schedule was insufficient; absent agreement, the parties must
actually present competent evidence at trial of any assets and liabilities they wish
the court to distribute in order to trigger the court’s obligation to distribute them.
See, e.g., Aguirre v. Aguirre, 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008) (“A trial
judge has no duty under section 61.075 to make findings of value if the parties
have not presented any evidence on that issue.”) (citing Simmons v. Simmons, 979
So. 2d 1063, 1064 (Fla. 1st DCA 2008)). On remand, we leave to the trial court’s
discretion whether it wishes to hear additional evidence concerning the liabilities
that were not supported by evidence at trial, or whether it simply wishes to
identify and distribute the liabilities that were supported at trial.

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On remand, the trial court may in its discretion take new evidence, and
should enter specific findings, valuing the law practice in a manner
supported by competent, substantial evidence, and with a clear valuation
date.

    Third, both Husband and Wife argue that the trial court erred in
modifying, without sufficient findings, the parties’ agreed order on
temporary support, which remained in place for years prior to trial. We
agree. While the court has broad discretion to modify temporary support
orders, modification must be supported by findings of need and ability to
pay. See Bengisu v. Bengisu, 12 So. 3d 283, 286 (Fla. 4th DCA 2009) (“In
determining whether and to what extent temporary alimony is required,
the trial court must consider the needs of the spouse requesting the
alimony and the ability of the other spouse to pay alimony.”) (citation
omitted); Driscoll v. Driscoll, 915 So. 2d 771, 773 (Fla. 2d DCA 2005)
(“[T]emporary alimony awards must be supported by competent,
substantial evidence that demonstrates the need for support and the
paying spouse’s ability to pay.”) (citation omitted); § 61.14(11)(a), Fla. Stat.
(2024) (“A court may, upon good cause shown, and without a showing of
a substantial change of circumstances, modify, vacate, or set aside a
temporary support order before or upon entering a final order in a
proceeding.”).

   The trial court failed to explain how it calculated the award of
temporary alimony arrearages, where the agreed order was for
undifferentiated support with no way to identify which share of the award
was for child support and which was alimony. Any order modifying
temporary support should follow best practice and differentiate between
child support and alimony, making the appropriate findings for each. See
Van Maerssen v. Gerdts, 213 So. 3d 952, 953–54 (Fla. 4th DCA 2017)
(holding “the trial court abused its discretion in awarding the wife
undifferentiated spousal and child support instead of calculating them
separately” and “[t]he trial court’s failure to specify which share of the
award was for spousal support and which share was for child support has
compounded our difficulty in evaluating whether the award is supported
by the evidence”) (quotation omitted) (citing Greenhouse v. Greenhouse,
913 So. 2d 1201, 1201 (Fla. 4th DCA 2005), and Blum v. Blum, 769 So. 2d
1142, 1143 (Fla. 4th DCA 2000)); Allison v. Allison, 605 So. 2d 130, 131
(Fla. 4th DCA 1992) (remanding for clarification where it was unclear how
the trial court calculated deduction in temporary alimony arrearage). On
remand, the trial court should recalculate the awards for temporary
alimony arrearages, making the necessary findings based on competent,
substantial evidence of need and ability to pay. Whether additional
testimony and evidence is required or whether the current record contains

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sufficient evidence, we leave for the trial court to determine.

   Fourth, Husband argues that the trial court erred in calculating
prejudgment interest. Wife concedes error. On remand, the trial court
should correct the error. 3

   Fifth, Husband argues that the trial court did not make sufficient
written factual findings to support its award of attorney’s fees to Wife. Wife
concedes error, in part, agreeing that the trial court should be directed to
make specific written findings as to the lodestar amount of such fees on
remand. On remand, the trial court should make sufficient written
findings to calculate the reasonable attorney’s fees in accordance with our
precedent, including Florida Patient’s Compensation Fund v. Rowe, 472 So.
2d 1145 (Fla. 1985) and Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997).
See also Faircloth v. Bliss, 917 So. 2d 1005, 1006 (Fla. 4th DCA 2006)
(“Generally, a fee award must be supported by competent evidence which
must include evidence detailing the services performed and the
reasonableness of the fee.”) (citation omitted); Norman v. Norman, 939 So.
2d 240, 242 (Fla. 1st DCA 2006) (“A dissolution order directing a party to
pay the other party’s fees and costs, which recites simply that the total
amounts are reasonable time spent and hourly rates, is insufficient under
Rowe.”) (quotations and citation omitted). 4

    II.   The court erred by characterizing Husband’s brokerage
          account as marital property

    Husband opened a Wells Fargo brokerage account prior to marriage.

3 We are aware that the trial court, with the parties’ agreement, issued an
amended judgment modifying the prejudgment interest calculation while this
appeal was pending. That amended judgment is a nullity. See Jallali v.
Knightsbridge Vill. Homeowners’ Ass’n, Inc., 152 So. 3d 808, 809 (Fla. 4th DCA
2014) (“When an appeal is taken, the lower court is divested of jurisdiction to
proceed with matters related to the final judgment.”) (citation omitted); Fonseca
v. Taverna Imports, Inc., 193 So. 3d 92, 94 (Fla. 3d DCA 2016) (“[A] trial court is
without jurisdiction to modify a judgment, while that judgment is pending on
appeal, in the absence of the appellate court relinquishing jurisdiction to the trial
court for that purpose.”) (citation omitted). Instead, the parties could have asked
us to relinquish jurisdiction for the limited purpose of modifying the judgment by
agreement, or they could have asked the trial court to stay that portion of the
order while the appeal was pending.

4 We reject as without merit Husband’s argument that the trial court erred in

failing to make factual findings on the parties’ net incomes with respect to child
support calculations. We summarily affirm.

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During the marriage, Husband used his Wells Fargo brokerage account as
collateral to obtain a margin loan. The loan proceeds were used to pay
marital expenses. Husband then paid off the margin loan using funds
from the parties’ marital Bank of America checking account, by depositing
those funds into his Wells Fargo brokerage account. Wife argued that
“commingling” made the Wells Fargo brokerage account a marital asset.

   The trial court held that, while Husband’s Wells Fargo brokerage
account started as a nonmarital asset, it became a marital asset when
marital monies, used to pay back the loan, were deposited into the Wells
Fargo brokerage account. As we explain, that was error, and the Wells
Fargo brokerage account (absent perhaps about $94, which may have
been commingled) remained nonmarital property not subject to
distribution.

   “An asset acquired prior to the marriage is, by definition, nonmarital.”
Robinson v. Robinson, 10 So. 3d 196, 197 (Fla. 1st DCA 2009); see also
§ 61.075(6)(b)1., Fla. Stat. (2024). But “nonmarital assets may lose their
nonmarital character and become marital assets where . . . they have been
commingled with marital assets. This is especially true with respect to
money because money is fungible, and once commingled it loses its
separate character.” Dravis v. Dravis, 170 So. 3d 849, 852 (Fla. 2d DCA
2015) (cleaned up).

   But merely pledging the account as collateral does not convert the
account to marital property. See Higgins v. Higgins, 226 So. 3d 901, 907
(Fla. 4th DCA 2017) (“[T]he use of marital funds to satisfy a marital debt
secured by the nonmarital property did not transform the entire value of
the [premarital] property into a marital asset.”) (footnote omitted);
Escalona Socarras v. Bazan Vassallo, 273 So. 3d 131, 132 (Fla. 3d DCA
2019) (holding that “Former Wife failed to establish that the Former
Husband’s Miami Property had been ‘transformed’ to a marital asset”
where “the Former Husband obtained an equity line of credit in the
amount of $89,000 for an investment in Peru, using the Miami Property
as collateral”) (collecting authority); Farrior v. Farrior, 736 So. 2d 1177,
1180 (Fla. 1999) (“There is no principle of statutory law, case law, or equity
that would transform a clearly identifiable nonmarital asset into a marital
asset merely because the stock was pledged as a collateral for marital
debts.”) (Pariente, J., concurring).

   Here, the record reflects a Wells Fargo account statement showing the
margin loan balance to be $39,480.24 on November 30, 2019, and $0 by
December 31, 2019. The Wells Fargo account statement also details an
electronic funds transfer, reflecting that on December 16, 2019, a direct

                                      6
transfer of $39,574.06 was made from the parties’ joint Bank of America
checking account. The record also includes a Bank of America statement
confirming an electronic transfer of $39,574.06 was made from the parties’
joint Bank of America checking account in December 2019. This was
supported by testimony from Wife’s expert.

    This reflects that no commingling occurred, because the monies paid
into the Wells Fargo account matched the marital debt owed, nearly down
to the dollar, and remained traceable to payment of that debt. See, e.g.,
Belmont v. Belmont, 761 So. 2d 406, 408 (Fla. 2d DCA 2000) (“Money loses
its nonmarital character when it is commingled with marital money and
becomes untraceable.”) (citation omitted); Grieco v. Grieco, 917 So. 2d
1052, 1055 (Fla. 2d DCA 2006) (“Consolidated bank statements reflecting
a total account balance for the Husband and Wife do not change the
character of the Husband’s inherited funds where those funds remain
separate and identifiable.”).

   Perhaps commingling occurred to the extent that the amounts do not
match perfectly, about $94, but that would only convert that commingled
portion into a marital character, as the remaining bulk of funds remained
traceable. 5 Cf. Yon v. Yon, 286 So. 3d 322, 328 (Fla. 1st DCA 2019)
(“Deposit of the funds does not necessarily make the entire account
marital. The former husband may be able to meet his burden of proof to
establish what portion of the account remains nonmarital.”). The trial
court and parties can decide whether to litigate that de minimis sum on
remand.

    III.   Conclusion

   Accordingly, we remand this case to the trial court to conduct any
further proceedings that are not inconsistent with this opinion and to issue
a new final judgment of dissolution of marriage.

    Affirmed in part, reversed in part, and remanded for further proceedings.

KLINGENSMITH and SHAW, JJ., concur.

                            *         *         *


5 We recognize an alternative plausible explanation may be that the $94 was
interest which became due and owing between the November 30, 2019 statement
and the December 16, 2019 funds transfer. But the record does not support this
explanation.

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Not final until disposition of timely-filed motion for rehearing.




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