Lori D. Carter v. Aaron G. Carter

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            LORI D. CARTER,
                               Appellant,

                                     v.

                           AARON G. CARTER,
                               Appellee.

                   Nos. 4D2025-1183 & 4D2025-1193

                             [April 29, 2026]

   Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Dina Keever-Agrama, Judge; L.T. Case No.
502023DR006228XXXXNB.

    Eddie E. Stephens, III of Stephens & Stevens, PLLC, West Palm Beach,
for appellant.

  Cindy Ann Crawford of Law Office of Cindy A. Crawford, PLLC, Palm
Beach Gardens, for appellee.

SHAW, J.

   In this cross-appeal following a Final Judgment on Dissolution of
Marriage (the “final judgment”), Lori D. Carter (“Wife”) appeals the circuit
court’s failure to award retroactive child support and failure to distribute
family photographs and videos, while Aaron G. Carter (“Husband”) appeals
the circuit court’s calculation of Husband’s income, award of alimony to
Wife, and inclusion of four promissory notes as marital liabilities.

   We affirm without discussion the issues raised by Husband. For the
reasons discussed more fully below, we reverse on the issues raised by
Wife and remand to the circuit court for further proceedings.

   I. BACKGROUND

   Wife and Husband married on July 14, 2011. They share a minor child.
On July 18, 2023, Husband filed his petition for dissolution of marriage
and other related relief. Wife filed an answer and counterpetition for
dissolution of marriage and other related relief. The minor child resided
solely with Wife for most of the separation period.

   On January 15, 2025 and January 30, 2025, the circuit court held a
final hearing on these matters.

   Wife called a forensic accountant to testify on Wife’s income and need
for alimony, as well as Husband’s income and monthly surplus. The
forensic accountant prepared an extensive trial exhibit binder utilizing the
parties’ financial records for the calculations. The forensic accountant
also testified on retroactive child support and conducted an analysis for
such award.

   Before and during trial, Husband’s unwillingness to share family
photographs and videos located on his hard drives became a heated point
of contention between the parties. Ultimately, given the upcoming
memorial service for Wife’s recently-deceased mother, the circuit court
entered a written order requiring Husband to provide Wife with hard drives
containing photographs of Wife’s mother within forty-eight hours.

   On March 11, 2025, the circuit court issued its final judgment.
Relevant here, the final judgment did not award retroactive child support
to Wife. Additionally, the family photographs and videos contained on
Husband’s hard drives were not included in the equitable distribution list.

   II. STANDARDS OF REVIEW

   “The standard of review for a child support award is abuse of
discretion.” Smith v. Loffredo-Smith, 230 So. 3d 898, 899 (Fla. 4th DCA
2017).

   The standard of review of a trial court’s determination of equitable
distribution also is abuse of discretion. See Whittaker v. Whittaker, 331
So. 3d 719, 720–21 (Fla. 4th DCA 2021). “However, ‘[a] trial court’s legal
conclusion that an asset is marital or nonmarital is subject to de novo
review.’” Id. at 721 (citation omitted).

   III. DISCUSSION

   We divide our discussion into two parts. First, we discuss why the
circuit court erred in failing to award retroactive child support to Wife.
Second, we discuss why the circuit court erred in failing to equitably
distribute the family photographs and videos obtained during the parties’
marriage.


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   A. The Circuit Court Erred in Failing to Award Retroactive Child Support

    “A trial court abuses its discretion when it fails to award retroactive
child support . . . where there is a need for child support and an ability to
pay.” Leventhal v. Leventhal, 885 So. 2d 919, 920 (Fla. 3d DCA 2004).
“Although the award of retroactive child support is discretionary, appellate
courts routinely find it to be error to not award it.” Nierenberg v.
Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000) (citing Anderson
v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992)). In Nierenberg, we found
error where no authority was cited to support the denial of retroactive child
support and the reasons given by the circuit court did not support the
denial either. See id.

    In denying retroactive child support here, the circuit court found no
evidence was presented regarding the child’s need and the parties’ ability
to pay. This was incorrect. Wife presented competent substantial evidence
on the minor child’s needs and Husband’s ability to pay. Specifically, a
forensic accountant testified on the need for retroactive child support and
calculated an award amount based on Husband’s ability to pay. This
evidence was uncontroverted. Additionally, Husband conceded he had not
been paying regular child support during the separation period, during
most of which the minor child had resided solely with Wife.

   Furthermore, in declining to award retroactive child support, the circuit
court cited Martinez v. Martinez, 911 So. 2d 288 (Fla. 2d DCA 2005), for
the unremarkable proposition that a retroactive child support award is
discretionary. But Martinez is inapposite. It did not involve retroactive
child support at all. Instead, it addressed a circuit court’s error in
requiring a couple to equally share the child’s uncovered medical
expenses. It offers no insight into whether a retroactive child support
award would be appropriate in this case.

    Thus, the circuit court erred in failing to award retroactive child
support to Wife. See Leventhal, 885 So. 2d at 920. We reverse and remand
for the circuit court to determine the retroactive child support amount to
be awarded to Wife. See Nierenberg, 758 So. 2d at 1180.

   B. The Circuit Court Erred in Failing to Equitably Distribute the Family
      Photographs and Videos as Marital Assets

   “When issues not raised by the pleadings are tried by express or implied
consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings.” Fla. R. Civ. P. 1.190(b); see also Hemraj v.
Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993) (holding issue of

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alimony, though not specifically stated in the pleadings, was clearly tried
by implied consent where wife requested and husband objected to such
award pretrial and during trial).

   “Marital assets and liabilities include all of the following . . . [a]ssets
acquired and liabilities incurred during the marriage, individually by
either spouse or jointly by them.” § 61.075(6)(a), Fla. Stat. (2024).

    “Although a property distribution need not be exactly equal, parties to
a dissolution proceeding are entitled to an equitable distribution of the
marital assets.” Buttner v. Buttner, 484 So. 2d 1265, 1266 (Fla. 4th DCA
1986). The crucial inquiry for what is considered a marital asset “should
be whether the property was legally and beneficially acquired by both or
either of the parties during the marriage.” Id. at 1266–67. “Marital assets
are assets acquired during the marriage, created or produced by the work
efforts, services or earnings of one or both spouses. They are the fruit of
the couple’s activities, working, living, and supporting one another as a
team.” Wright v. Wright, 505 So. 2d 699, 700 (Fla. 5th DCA 1987) (citation
omitted).

    “If the parties did not stipulate as to a particular marital asset or
liability, the trial court must set forth specific written findings.” Vitro v.
Vitro, 122 So. 3d 382, 387 (Fla. 4th DCA 2012). “Distribution of marital
assets and liabilities must be supported by factual findings in the
judgment or order based on competent substantial evidence.” Bardowell
v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008).

   Here, the issue of the family photographs and videos on Husband’s
hard drives was tried based on the parties’ implied consent. See Fla. R.
Civ. P. 1.190(b); Hemraj, 620 So. 2d at 1301. Before and during trial, the
issue of Husband withholding the family photographs and videos was
clearly contested by both parties. Only at trial, when questioned by the
circuit court, did Husband agree to provide some photographs to Wife.

   The family photographs and videos from the parties’ marriage and
contained on Husband’s hard drives should be deemed marital assets, as
the keepsakes were beneficially acquired by both parties during the
marriage. See Buttner, 484 So. 2d at 1266–67. Those family mementos
are clearly “the fruit of the couple’s activities” depicting their married life
and memories with their child. See Wright, 505 So. 2d at 700. Therefore,
Wife is entitled to an equitable distribution of these marital assets. See
Buttner, 484 So. 2d at 1266.

   Husband and Wife could not agree on how to distribute these marital

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assets. Despite Wife’s multiple requests for Husband to share the
photographs and videos, Husband refused. As of this appeal, Husband
still had not shared all the family photographs and videos with Wife.
Absent the parties’ stipulation, the circuit court should have set forth
specific written findings on how to distribute those marital assets. The
final judgment failed to identify and equitably distribute those marital
assets.

    Thus, the circuit court erred when it failed to do so. See Marconi v.
Erturk, 293 So. 3d 19, 21 (Fla. 4th DCA 2020); see also Tritschler v.
Tritschler, 273 So. 3d 1161, 1163 (Fla. 2d DCA 2019) (“A final judgment
that fails to identify and value all of the parties’ marital assets and
liabilities and that fails to distribute them equitably between the parties
must be reversed.”). We remand for the circuit court to include the family
photographs and videos as marital assets in the equitable distribution
scheme. See Tritschler, 273 So. 3d at 1166. We leave to the circuit court’s
discretion the method of sharing those assets.

   IV. CONCLUSION

    The circuit court erred in two respects: (1) denying Wife’s request for
retroactive child support despite evidence offered at trial showing the
minor child’s needs and Husband’s ability to pay; and (2) failing to identify
and equitably distribute the family photographs and videos as marital
assets. For the foregoing reasons, we reverse and remand for further
proceedings consistent with this opinion. We affirm without discussion on
all remaining issues.

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

KLINGENSMITH and LOTT, JJ., concur.

                            *         *        *

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




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