Wendy Rogers Van Duyne v. Peter Van Duyne

In this appeal from a final judgment of dissolution, the mother of the two
children born to the parties' marriage argues that she should have been designated the
primary residential parent and that the trial court's findings do not support an unequal
division of marital assets.

We find no fault with the trial court's determination that rotating custody is in
the best interests of the children. See, e.g., O'Brien v. Crumley, 695 So. 2d 881 (Fla.
5th DCA 1997) (holding evidence supported determination that rotating custody was
in child's best interest where child had adjusted well to rotating custody schedule in
effect prior to determination and the child had close ties and a loving relationship with
both parents). See generally Charlee Perrow, Note, The Origin and Evolution of
Florida's Presumption Against Rotating Custody: A Guideline for Florida Judges, 30
Fla. St. U. L. Rev. 503, 507 (2003) ("Florida courts . . . consider various factors when determining whether to order rotating custody instead of unquestionably applying the
presumption.").

We agree, however, that the trial court's findings fail to support the distribution
of marital assets that the judgment under review effects. "[T]he court must begin with
the premise that the distribution should be equal, unless there is a justification for an
unequal distribution based on all relevant factors" listed under section 61.075(1),
Florida Statutes. § 61.075(1), Fla. Stat. (2001). In the present case, the trial court
concluded that the down payment on the marital home (made less than two years into
the nineteen-year marriage) was a gift that did not give rise to a special equity under
section 61.075(5)(a), Florida Statutes. Gifts from one spouse to another are marital
property, § 61.075(5)(a)(3), Fla. Stat. (2001), that must be distributed like other marital assets.

Insofar as it distributes the parties' assets only, the judgment is vacated; and the
case is remanded for findings in accordance with section 61.075(1), Florida Statutes,
and distribution of marital assets in accordance with the statute.

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