MEMORANDUM OF LAW

To: Margarita M. Koblasz, Esq.

From: Michael D. Citelli MDC

Date: April 13, 2016

Re: Analysis of Motion on Equitable Distribution, Primary Residence, and

Psychological Evaluation, and Analysis of Motion for Equitable Distribution
Inclusion, Alimony, and Attorney’s Fees

STATEMENT OF ASSIGNMENT

The purpose of this memorandum is to analyze the following:

1. Whether Clark Kent is entitled to a share of the lottery winnings within equitable

distribution;

2. Whether it is in the child’s, Cir-El’s, best interests to have primary residence with Clark

Kent;

3. Whether Lois Kent may be required to undergo a psychological evaluation;

4. Whether Clark Kent is required to include the Fortress of Solitude within equitable

distribution;

5. Whether Clark Kent is required to pay alimony; and

6. Whether Clark Kent is required to pay Lois Kent’s attorney’s fees.

STATEMENT OF ISSUES

The issues in this case are as follows:

1. Do the lottery winnings belong within the equitable distribution process pursuant to Fla.

Stat. §61.075(7) (2016)?

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2. Can Clark Kent receive primary residence over the child pursuant to Fla. Stat. §61.13(3)

(2016)?

3. Can Lois Kent be required to undergo a psychological evaluation under Fla. Fam. L. R. P.

12.360 (2016) and Fla. R. Civ. P. 1.360(a)(1)-(2) (2016)?

4. Must Clark Kent include the Fortress of Solitude within equitable distribution pursuant to

Fla. Stat. §§61.075(6)(a)-(b) (2016)?

5. Must Clark Kent be required to pay alimony pursuant to Fla. Stat. §61.08(2) (2016)?

6. Pursuant to Foster v. Foster, 83 So. 3d 747 (Fla. 5th DCA 2011), must Clark Kent pay

Lois Kent’s attorney’s fees?

STATEMENT OF THE ANSWER

The answers to the issues in this case are as follows:

1. Yes, according to Fla. Stat. §61.075(7) (2016), the lottery winnings should be included in the

equitable distribution process. The parties had not entered a valid separation agreement

making the winnings fair game. As the lottery winnings were acquired before filing for

dissolution, they count as a marital asset subject to distribution.

2. Yes, pursuant to Fla. Stat. §61.13(3) (2016), it is within the child’s best interests to be

entrusted to Clark Kent. The Court will assess his viability according to the statute’s factors

and make a determination.

3. No, according to Fla. Fam. L. R. P. 12.360 (2016) and Fla. R. Civ. P. 1.360(a)(1)-(2) (2016),

the subject’s condition must be “in controversy” and the allegations as to the controversy

must be supported by “good cause” before they can be compelled to undergo a psychological

evaluation. These legal requirements have not been met, so Lois Kent cannot be ordered to

do so.
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4. No, pursuant to Fla. Stat. §§61.075(6)(a)-(b) (2016), enhancements on nonmarital assets are

marital assets. The nonmarital property, acquired prior to the marriage by noninterspousal

gift, stays nonmarital regardless of any marital enhancements upon it.

5. No, under Fla. Stat. §61.08(2) (2016), alimony is only distributed when there is a need for it.

Lois Kent will receive an equitable portion of the assets to be divided, so there may not be a

need for alimony.

6. No, pursuant to Foster v. Foster, 83 So. 3d 747 (Fla. 5th DCA 2011), the court may place the

parties in relatively equal financial circumstances. If equal financial circumstances result

after equitable distribution, then one party should not have to substantially deplete his share

of the overall equitable distribution.

STATEMENT OF THE FACTS

The facts of this case are as follows:

 Clark Kent will be referred to as “Husband” and Lois Kent will be referred to as “Wife”

herein.

 Husband moved away from Wife.

 Wife has stayed home to take care of their child.

 Wife has worked to keep the Fortress of Solitude clean.

 Wife helped maintain and enhance the Fortress.

 Wife helped in remodeling the Fortress.

 The child has always known a life in the Fortress of Solitude.

 The Fortress of Solitude is a noninterspousal gift to Husband, acquired prior to the

marriage.
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 Wife works hard at the Daily Planet.

 Wife will be potentially promoted soon.

 Wife makes enough to live comfortably while also contributing to her savings.

 Wife didn’t have time to fly around the world with Husband and their child.

 Wife lives in a downtown apartment.

 Husband and Wife never entered a valid separation agreement.

 Wife acquired lottery winnings prior to filing the petition for dissolution.

 Husband wants primary residence of their child.

 The child is 12 and a handful to take care of.

 The child is super-powered like her father.

 Husband believes Wife is unfit to raise their child.

 Husband wants Wife to undergo a psychological evaluation.

 Wife wants alimony, due to need.

 Discovery of Wife will reveal actual need.

 Wife wants her attorney’s fees to be paid by Husband.

 Discovery of Wife may reveal her inability to pay for said fees and need for payment of

said fees.

ANALYSIS

Do the lottery winnings belong within the equitable distribution process pursuant to Fla. Stat.

§61.075(7) (2016)?

 Fla. Stat. §61.075(7) (2016), states that the date of a valid separation agreement

becomes the cut-off date for determining marital assets and expenses. When a valid
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separation agreement is absent, the cut-off date then shifts to the date of filing for

dissolution. This means that all assets and expenses acquired before the cut-off date are

marital and included within the equitable distribution process. Separation of the spouses,

absent a valid separation agreement and before the filing for dissolution, does not

change owned marital assets into nonmarital assets.

 In Rao-Nagineni v. Rao, 895 So. 2d 1160 (Fla. 4th DCA 2005), the couple

“effectively separated all of their joint activities” two years before filing for dissolution.

These parties did not enter a valid separation agreement. If there is no valid separation

agreement, the cut-off for determining the marital classification of assets and liabilities

becomes the date of filing for dissolution. The trial court erred when it determined the

couple’s “separation” in 1999 as the cut-off date. The case was reversed and remanded

for the trial court to use the 2002 date of filing for dissolution to determine marital assets

and liabilities.

 Schmitz v. Schmitz, 950 So. 2d 462 (Fla. 4th DCA 2007), features another couple who

had not entered a valid separation agreement. The court ruled that the cut-off date for

determining assets and liabilities is the date the petition for the dissolution of marriage

was filed. The difference with this case is that the husband had post-filing debts for

litigation and expenses. He wanted to include these fees within equitable distribution,

but they came after the date of filing for dissolution, so they were not marital fees. This

means that all assets and liabilities incurred absent a valid separation agreement and

before filing for dissolution are marital. Assets and liabilities incurred afterward are

nonmarital.
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 The only defense my opponent may offer comes from Agoshe v. Lehman, 962 So. 2d

398 (Fla. 2d DCA 2007). This case states that a trial court’s valuation of marital

property, for purposes of equitable distribution, must be based on competent evidence.

The valuation should not be determined by splitting the difference between each party’s

assertions. This ruling secures a fair portion of the winnings for Wife. There is no

defense as to inclusion of the winnings in equitable distribution.

 In comparing these facts of law to the facts of this case, a nearly identical

predicament is found. Husband and Wife have not entered into a valid separation

agreement. Like some of their predecessors, they “separated” before filing for a petition

of dissolution. As analysis of these cases shows, separation does not officially separate

one spouse’s assets from the other spouse’s assets. The cut-off date for determining what

assets are marital and what assets are nonmarital in this instance, is the date of filing for

dissolution. The money used to buy the lottery ticket is marital, being that this couple

had not yet filed for dissolution, This in turn means the lottery winnings are marital and

subject to equitable distribution. There is no defense for this issue.

Can Husband receive primary residence over the child pursuant to Fla. Stat. §61.13(3) (2016)?

 The language within Fla. Stat. §61.13(3) (2016) refers to parental qualities that make

a residence fall under a child’s best interests. According to this statute, a parent must

have strong moral fitness and strong mental health. The parent must also have the ability

to oversee the home, school, and community records of the child. The parent must have

the demonstrated knowledge, capacity, and disposition to be informed on the

circumstances of the child. Each parent must have the demonstrated capacity and

disposition to encourage a close and continuing parent-child relationship.

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 In Adair v. Adair, 720 So. 2d 316 (Fla. 4th DCA 1998), the parents contested

custody over their children. When the court weighed the factors listed in Fla. Stat.

§61.13(3) (2016), they found that the husband was in the children’s best interests. While

both parties are good parents, the mother failed to evidence a willingness to encourage a

close relationship between the children and the father. The evidence for the lack of

encouragement was accrued throughout the pendency of the divorce. This caused the

court to rule in the husband’s favor for primary residence.

 In Miller v. Miller, 842 So. 2d 168 (Fla. 1st DCA 2003), the evidence supported that

either parent could obtain primary residence. The court used the previously listed statute

to evaluate all factors affecting the welfare and interests of the child. While the parents

had near equal qualifications, the court chose the father. The court had substantial

competent evidence supporting their decision, so they did not abuse their discretion. The

court has broad discretion to award primary residence when their ruling is supported by

substantial competent evidence.

 My opponent may refer to the case law within Buccini v. Sonara, 989 So. 2d 1288

(Fla. 4th DCA 2008). This case was appealed to identify an abuse of discretion by the

trial court, which granted child custody in light of a conflict of evidence. The holding of

this case affirms the trial court’s decision. The court held, “an appellate court will not

change the trial court’s decision unless there is no substantially competent evidence to

support their decision.” If the court rules according to substantially competent evidence,

there is no error.

 In deciding who will receive the primary residence of the child the court weighs each

parent’s ability to meet the factors under the statute. The court will find the Husband is
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qualified within most of the factors. Wife may be found to be suitable candidate for

primary residence. The court may find that Wife fails to facilitate a close relationship

between child and father. This makes the Husband, the better choice of the two. My

opponent may argue that there is no substantial competent evidence supporting the

Husband’s claim to primary residence. During trial, the court will determine if the

evidence presented is substantially competent to support an acquisition of primary

residence.

Can Wife be required to undergo a psychological evaluation under Fla. Fam. L. R. P. 12.360

(2016) and Fla. R. Civ. P. 1.360(a)(1)-(2) (2016)?

 Fla. Fam. L. R. P. 12.360 (2016), states Fla. R. Civ. P. 1.360 (2016), “shall govern

the general provisions of examination of persons.” Fla. Fam. L. R. P. 12.360 (2016)

does not rely on Fla. R. Civ. P. 1.360 (2016), for an exclusive list of allowable

examinations. This means the Fla. Fam. L. R. P. 12.360 (2016) is not exclusive to

psychological examinations. Pursuant to Fla. R. Civ. P. 1.360(a)(1)-(2) (2016), the

requirements must be met in order to request an examination. This rule requires the

subject’s condition to be “in controversy,” which is shown through “good cause.” Good

cause can be shown through evidence that a parent is unable to meet the special needs of

the child. Allegations must be factual in order to qualify as good cause. Factual good

cause will show that the mental condition of a parent is in controversy, and then a

psychological evaluation may be granted.

 A court need not always specifically state the mental condition is “in controversy,” or

that the alleging parent has demonstrated “good cause.” In Barry v. Barry, 159 So. 3d

306 (Fla. 5th DCA 2015), the court made factual findings that supported the “in
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controversy” and “good cause” conclusions. The trial court was found not to have

departed from these essential conclusions in ordering the husband to undergo a

psychological evaluation. The court made the factual findings as to the “good cause” and

“in controversy” requirements or conclusions.

 In most cases the “in controversy” and “good cause” requirements are met by an

affirmative showing by the movant. In Temares v. Temares, No. 3D15-1593, 2015 WL

5139484, at *1 (Fla. 3d DCA Sept. 2, 2015), there were no verified allegations. The

affirmative showing or verification of the “in controversy” and “good cause” allegations

should have been received at hearings or through pleading.

 Wade v. Wade, 124 So. 3d 369 (Fla. 3d DCA 2013), demonstrates that a hearing is

where the allegations are clearly manifested. My opponent will argue that according to

this case, our hearings should have set forth the factual basis for Husband’s allegations.

The hearing date I established has passed. Unfortunately my opponent was absent so the

allegations were not discussed. My opponent failed to present me with her notice of

hearing. Unless given a chance properly allege and verify our allegations, we will

discuss these issues at trial.

 Husband has not yet been able to solidify his allegations for “in controversy” and

“good cause” requirements in court. Wife’s counsel denied the ability to do so. In any

case it is within the court’s power to make factual findings as to the requirements for a

request of psychological evaluation. As of now the court has not seen Husband’s factual

allegations. At trial, the court will be presented with the allegations. They will weigh on

the allegations presented to them and they will ultimately decide if this request may be

granted.
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Must Husband include the Fortress of Solitude within equitable distribution pursuant to Fla. Stat.

§§61.075(6)(a)-(b) (2016)?

 Fla. Stat. §§61.075(6)(a)-(b) (2016) lists marital and nonmarital assets and liabilities.

The specific asset at issue is classified as noninterspousal gift received prior to marriage.

As the statute states, enhancement in value and appreciation to nonmarital assets

resulting from marital efforts and expenses are marital. The noninterspousal gift

received prior to marriage remains nonmarital.

 According to Wilson v. Wilson, 992 So. 2d 395 (Fla. 1st DCA 2008), improvements

upon a nonmarital asset do not change its classification to marital. In this case, a motel

was given as a gift to the wife. This motel was a nonmarital asset not subject to equitable

distribution. The trial court ruled that it became a marital asset when marital labor

enhanced its value. The appellate court ruled that regardless of marital labor and funds

used on improvement, the whole nonmarital asset does not become marital. The

enhanced value is marital and is subject to equitable distribution.

 In Martin v. Martin, 923 So. 2d 1236, (Fla. 1st DCA 2006), the same issue occurs.

The wife inherited a portion of land and it was titled in her name alone, making it a

nonmarital asset. The title was never changed, but the husband made enhancements to

the land during marriage and property taxes were paid with marital money. Regardless

of marital payment of the property taxes, the land stayed nonmarital. The husband had

the option to receive some special equity or enhancement value. He failed to provide

sufficient factual support of marital enhancement and payment so they were not included

in equitable distribution.
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 My opponent may find precedent in Prefrengle v. Prefrengle, 976 So. 2d 1134 (Fla.

2d DCA 2008). In this case, an account was titled in a one of the spouse’s name alone.

The husband was in charge of this separate nonmarital account. He commingled marital

funds into the separate nonmarital account. The commingling of funds caused that

account to become marital. My opponent may attempt to translate these facts to our

facts, but marital assets have not commingled with the nonmartial asset at issue.

 The Fortress of Solitude is a noninterspousal gift that was received prior to the

marriage. Marital labor and funds have gone into enhancement upon the Fortress. This

enhancement does not change the nonmarital Fortress into a marital asset. Wife must

provide a sufficient factual support of the marital enhancement in order to include it

within equitable distribution. This asset has not commingled with other marital assets so

it remains nonmarital. Husband will be required to include the enhancement value of the

Fortress in equitable distribution.

Must Husband be required to pay alimony pursuant to Fla. Stat. §61.08(2) (2016)?

 The court has many relevant factors to assess under Fla. Stat. §61.08(2) (2016). The

court must first make a specifically factual determination as to either party’s actual need

for alimony and the opposition’s ability to pay it. The factors the court must assess are

the standard-of-living established during the marriage and the duration of the marriage.

The financial resources of each party, including nonmarital and marital liabilities and

assets, are factors for determining need and ability. Other factors are the contribution of

each party to the marriage, earning capacity, all sources of income, and responsibilities

concerning the child. After equitable distribution, the court weighs these factors and

finds which party has a need and which has the ability to pay for that need.
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 In Marshall-Beasley v. Beasley, 77 So. 3d 751 (Fla. 4th DCA 2011), a wife does not

receive permanent alimony. In this case, the wife had impressive education, marketing

experience, her own business, and she was younger with more earning years than the

husband. A bridge-the-gap alimony was awarded in order to ease the transition into

single life. The wife demanded more due to her loss of standard-of-living. The court

ruled that alimony is not intended to fund enjoyment over every luxury had before

dissolution. The wife was employed and had adequate employment skills with no need

for additional rehabilitation to ease into the single life.

 Alimony is given on a basis of actual income and current assets. In Smith v. Smith,

737 So. 2d 641 (Fla. 1st DCA 1999), the husband is voluntarily underemployed. In this

instance, the court needed to determine his actual income through factual findings of

probable and potential earnings. Since he voluntarily had no job the court imputed his

previous earnings, denying him alimony. The purpose of this case is to show that court

will make factual findings as to probable and potential earnings proving a need for

alimony.

 A party is viable for permanent alimony when dissolution causes that party to miss

out on the necessities of life established during their marriage. In Gray v. Gray, 103 So.

2d 962 (Fla. 1st DCA 2012), a wife was awarded a large permanent monthly alimony.

No factual findings were given for the need of this alimony. The length of the marriage,

marital and nonmarital financial resources, earning capacities, contribution to the

marriage and all sources of income were weighed. The court found that the couple

enjoyed an affluent lifestyle, which was ended by the dissolution making the alimony
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award justified. My opponent may reference this case in support of Wife’s claim to

alimony.

 After the court determines what equitable distribution will be, they must determine

alimony merits. They will assess the parties according to the factors listed within the

governing statute. Then they will determine if Wife has a need for alimony and if

Husband can pay for that need. Wife requests permanent alimony, but not all cases that

deal with post-dissolution life-style adjustments may acquire permanent alimony. Wife

is employed, capable to work, and well off with a potential incoming promotion. The

court will make factual findings as to the parties’ probable and potential income. The

court may find that Wife is not in need of permanent alimony, but will be in need of

bridge-the-gap alimony. Husband may be compelled to pay bridge-the-gap alimony.

Pursuant to Foster v. Foster, 83 So. 3d 747 (Fla. 5th DCA 2011), must Husband pay Wife’s

attorney’s fees?

 After the court determines equitable distribution and alimony imputations, they must

assess the parties’ needs and abilities to pay for attorney’s fees. In Foster v. Foster, 83

So. 3d 747 (Fla. 5th DCA 2011), the parties were placed within equal financial

circumstances. Equitable distribution and alimony had been awarded within these

relatively equal financial circumstances. If a trial court creates financially equal

circumstances for both parties then undue depletion should not be put upon one’s share

of the equitable distribution. The trial court erred when it awarded the wife with

attorney’s fees, because it caused the equitable circumstances to unfairly tip in her favor.

The attorney’s fees placed on the husband substantially depleted his share of the overall

equitable distribution, so the appellate court reversed and remanded the ruling.
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 Future income will not be weighed in determining payment of attorney’s fees. In

Derrevere v. Derrevere, 899 So. 2d 1152 (Fla. 4th DCA 2005), the wife acquired more

in equitable distribution. The trial court ruled that the husband’s possibility of future

income meant he had the ability to pay attorney’s fees. At the end of dissolution, the

parties were financially equal. The possible future income was a speculative increase in

income, making it seem as though the husband had the ability to pay attorney’s fees. The

attorney’s fee award then should have been denied since the parties were financially

equal and the future income was not included in the judgment.

 Financial need for payment of attorney’s fees must be found to in order to compel

another party to pay those fees. According to Von Baillou v. Von Baillou, 959 So. 2d 821

(Fla. 4th DCA 2007), fees are awarded to ensure equally competent counsel. The

outcome of equitable distribution may display, due to inability, a need for someone else

to pay for the counsel. In this case, the wife had no need for the payment of attorney’s

fees after equitable distribution, so the ruling granting it was reversed. The court

determines the viability of an asserted need by analyzing equitable distribution and

earnings.

 In cases where the husband has more income than the wife, trial courts tend to find

that the wife deserves attorney’s fees. In Onderjack v. Onderjack, 839 So. 2d 867 (Fla.

4th DCA 2003), the husband was left with income three times over the wife after

equitable distribution. My opponent will argue that Husband will be better off even with

equitable distribution, so he should pay attorney’s fees. The court’s evaluation of

equitable distribution will determine whether or not the potential need for attorney’s fees

must be paid. The need, as found in this case, will be based on a factual finding.
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 Equitable distribution will result in a fair dissemination based on the parties’ marital

and nonmarital assets and liabilities, and potential earnings. Once assessed, the court

may determine if Wife has a need. To establish a need, Wife must show she cannot pay

attorney’s fees without substantial depletion to her share of the overall equitable

distribution. Evidence of the need or the inability to pay must be established by a factual

finding. The court will determine if the need is viable when compared to overall

equitable distribution. If financial circumstances are nearly equal after equitable

distribution, Husband need not pay attorney’s fees. Future income will not be assessed

when deciding ability of Husband to pay for attorney’s fees. The court might find that

Husband is still better off than Wife after equitable distribution. If Husband is

substantially better off, they may find that Husband has the ability to pay attorney’s fees

and may thus compel him to do so.

CONCLUSION:

The trial court holds ultimate responsibility in ruling over these issues. The lottery

winnings were acquired before filing for dissolution. Husband and Wife never entered a valid

separation agreement, thus the winnings are marital and subject to equitable distribution.

Husband should acquire primary residence being that he satisfies more of the required factors

than Wife does. The court will assess the best interest factors for each party, and then determine

who should acquire primary residence. Substantial and competent evidence will show husband

meets the best interest factors. Affirmative showing and verification of the “in controversy” and

“good cause” requirements for psychological evaluation will be shown at trial. These

requirements have not yet been met in a hearing or pleading. The court has the ability to make

these findings on its own accord as well. The Fortress of Solitude is a noninterspousal gift
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received prior to marriage. It is nonmarital, but enhancement value placed upon it through

marital funds and labor is marital. The value of the enhancement is subject to equitable

distribution. Wife has not shown factual finding of her need for permanent alimony.

Nevertheless, the court may find her to be in need of alimony. In the event that they do, they may

compel Husband to pay some form of alimony. The court conclusion of equitable distribution

may result in a need for permanent alimony. Wife is employed, well off, and will soon be

promoted, so permanent alimony does not seem likely. Husband must be found to have the

ability to pay alimony. Wife has made no factual finding of her inability to pay attorney’s fees.

In the event that she has a need, husband must be determined to have the ability to pay her

attorney’s fees. If equitable distribution leaves these parties in equal financial circumstances, the

attorney fees may not be awarded to Wife. Attorney’s fees will not be rewarded if it causes

undue depletion from Husband’s share of the overall equitable distribution. The court will serve

justice in accordance with the law and analysis of these issues.

RECOMMENDATIONS

 Mediation may help the parties come to equal terms where it comes to primary residence

and the psychological evaluation.

 Additional substantially competent evidence proving best interest factors is required from

Husband.

 Additional substantially competent evidence required from Husband pertaining to the

matter of psychological evaluation.

 Another meeting with Husband will be scheduled.

 Another hearing will be scheduled, so as to present Husband’s factual assertions.

 If the need is factually supported, Husband can settle for bridge-the-gap alimony.
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 If the need is factually supported, Husband can settle to pay half of Wife’s attorney’s

fees.