author: HAZOURI, J.

text:
    Barbara YAKAVONIS, Appellant, v. DOLPHIN PETROLEUM, INC., a Florida corporation, Himes Associates, Ltd. Corporation, a Florida corporation, Gil Hyatt, Inc., a Florida corporation, and Gil Hyatt, Inc. d/b/a Gil Hyatt Construction, a Florida corporation, Appellees.
    No. 4D05-3653.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      James W. Shuttleworth, III, and Joel S. Finkelstein of Finkelstein & Partners, LLP, Newburgh, NY, and Arthur C. Nei-wirth of Rothstein Rosenfeldt Adler, Fort Lauderdale, for appellant.
    Dana J. McElroy and John R. Hargrove of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellee Gil Hyatt, Ine., a Florida corporation, and Gil Hyatt, Inc. d/b/a Gil Hyatt Construction, a Florida corporation.
   HAZOURI, J.

This is an appeal from a final judgment awarding attorney’s fees to defendant/ap-pellee, Gil Hyatt, Inc. d/b/a Gil Hyatt Construction (“Hyatt”), pursuant to section 57.105(1), Florida Statutes (2003).

On October 15, 2001, appellant, Barbara Yakavonis, filed a complaint for negligence against Dolphin Petroleum, Inc., for injuries she received on January 25, 2001, when she fell on the sidewalk at Dolphin’s newly constructed convenience store allegedly due to the lack of striping or painting differentiating the parking lot pavement from the sidewalk. In its answer, Dolphin asserted a Fabre v. Marin, 623 So.2d 1182 (Fla.1993), defense, alleging that its contractor and its architect, without naming them, may be at fault for Yakavonis’s injuries. A year later, Dolphin’s counsel provided Yakavonis’s counsel with the names of these entities but did not amend Dolphin’s answer to name them as Fabre defendants. Yakavonis was granted leave to amend her complaint and added Hyatt, who was the general contractor, and the architect as defendants in her negligence claim.

On January 4, 2003, shortly after being served with the amended complaint, Mr. Hyatt wrote Yakavonis’s counsel, Joel Finkelstein, and filed with the court a letter in which he stated that the sidewalk was constructed as per the plans approved by the building department and that a certificate of occupancy was issued by the city evidencing its approval that the work met the requirements of all applicable codes.

Upon Yakavonis’s application for a default judgment against Hyatt for its failure to answer the amended complaint, Hyatt hired counsel in December 2003 and, by agreement of the parties, filed its answer on December 19, 2003. The litigation proceeded and on August 13, 2004, Hyatt filed its motion for summary judgment requesting judgment as a matter of law. Mr. Hyatt submitted an affidavit averring that Hyatt did not deviate from the plans provided, there was no direction or instruction to paint or stripe the curb, and the City of Fort Pierce issued certificates of occupancy.

Two weeks later, Yakavonis’s expert, Dr. Ronald Zoilo, who was hired by her attorney in March 2001 before suit was filed, was deposed at the request of the defendants, including Hyatt. Dr. Zoilo testified that he had no evidence that would provide a basis for opining that Hyatt was negligent in any way.

Pursuant to section 57.105(4), Florida Statutes, Hyatt served its motion for fees upon Yakavonis on September 1, 2004. On November 16, 2004, the trial court held a hearing on Hyatt’s motion for summary judgment at which Yakavonis’s counsel, Finkelstein, stated that the reason he did not dismiss Hyatt from the case was that Dolphin refused to drop Hyatt as a Fabre defendant. However, he did not now oppose Hyatt’s motion for summary judgment. The day before, at mediation, Dolphin had finally said it would not include Hyatt as a Fabre defendant. Finkelstein specifically stated to the court that “[fjrom the very beginning, we’re like we don’t see where there would be any liability on them, but since the defendant who hired them and knows them well brought them in, we felt compelled to bring them in as a direct defendant, which we did.” That same day the trial court entered summary judgment in favor of Hyatt and retained jurisdiction to determine entitlement to and the amount of attorney’s fees.

Immediately after the hearing, Hyatt filed its motion for attorney’s fees pursuant to section 57.105, which it had previously served on Yakavonis, asserting that she and her counsel knew or should have known that her claim against Hyatt was without any merit, especially in light of her own expert’s opinion and Finkelstein’s admission that from the beginning he did not see any liability. Yakavonis responded to Hyatt’s motion arguing that her claim was brought in good faith based upon Dolphin pointing the finger at Hyatt. She admitted that once it became evident that Hyatt did not belong in the suit, she conceded it.

Based upon the pleadings and argument, the trial court granted Hyatt’s motion for entitlement to fees on December 15, 2004. On April 19, 2005, a hearing was held to determine the amount of attorney’s fees to be awarded to Hyatt. The trial court entered a final judgment awarding the amount requested by Hyatt less certain hours spent by a paralegal and a law clerk. The fees awarded covered work done by Hyatt’s attorneys from when they initially entered the case until January 10, 2005. Hyatt was also awarded an expert witness fee. As required by section 57.105, the trial court enunciated the basis for the award by finding that Yakavonis’s counsel knew or should have known that her claim against Hyatt, when initially presented, was not supported by the material facts necessary to establish the claim.

Yakavonis argues that the trial court abused its discretion in determining that she knew or should have known that her claim against Hyatt, when presented to the court, was unsupported by the then existing material facts.

In determining whether to award attorney’s fees under section 57.105, Florida Statutes (2001), the trial court applies an abuse of discretion standard. Grob v. Bieluch, 912 So.2d 666, 667 (Fla. 4th DCA 2005). “The trial court’s finding must be based upon substantial competent evidence presented to the court at the hearing on attorney’s fees or otherwise before the court and in the trial court record.” Weatherby Assocs., Inc. v. Ballack, 783 So.2d 1138, 1141 (Fla. 4th DCA 2001). “When reviewing this issue, this court must look to see if the trial court abused its discretion in finding no justiciable issues of fact or law.” Fisher v. John Carter & Assocs., Inc. 864 So.2d 493, 497 (Fla. 4th DCA 2004), disapproved on other grounds, Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006).

Section 57.105, Florida Statutes, provides, in pertinent part:

(1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

In Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So.2d 520 (Fla. 1st DCA 2003), the court discussed section 57.105, which was amended in 1999:

[T]his statute was amended in 1999 as part of the 1999 Tort Reform Act in an effort to reduce frivolous litigation and thereby to decrease the cost imposed on the civil justice system by broadening the remedies that were previously available. Unlike its predecessor, the 1999 version of the statute no longer requires a party to show a complete absence of a justiciable issue of fact or law, but instead allows recovery of fees for any claims or defenses that are unsupported. However, this Court cautioned that section 57.105 must be applied carefully to ensure that it serves the purpose for which it was intended, which was to deter frivolous pleadings.
In determining whether a party is entitled to statutory attorney’s fees under section 57.105, Florida Statutes, frivolousness is determined when the claim or defense was initially filed; if the claim or defense is not initially frivolous, the court must then determine whether the claim or defense became frivolous after the suit was filed. In so doing, the court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.

Id. at 523 (citations omitted). Wendy’s continues by quoting from Visoly v. Security Pacific Credit Corp., 768 So.2d 482 (Fla. 3d DCA 2000):

We recognize that to some extent, the definition of “frivolous” is incapable of precise determination. Nevertheless, a review of Florida case law reveals that there are established guidelines for determining when an action is frivolous. These include where a case is found: (a) to be completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (b) to be contradicted by overwhelming evidence; (c) as having been undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (c) [sic] as asserting material factual statements that are false.

Id. at 491 (footnotes omitted). Finally, Wendy’s concludes (quoting. Mullins v. Kennelly, 847 So.2d 1151, 1155 n. 4 (Fla. 5th DCA 2003)):

While the revised statute incorporates the “not supported by the material facts or would not be supported by application of then-existing law to those material facts” standard instead of the “frivolous” standard of the earlier statute, an all encompassing definition of the new standard defies us. It is clear that the bar for the imposition of sanctions has been lowered, but just how far it has been lowered is an open question requiring a case by case analysis....

Wendy’s, 865 So.2d at 524.

At the time suit was filed against Hyatt, Yakavonis’s claim against Hyatt was not supported by the material facts necessary to establish the claim. Finkel-stein admits that at the time he filed the claim against Hyatt, he did not think there was a claim. The record also indicates that long before Yakavonis filed suit against Dolphin, she had retained her expert who was not specifically consulted concerning Hyatt’s possible liability. This is evidence of a lack of investigation by Yakavonis’s counsel into the sidewalk’s construction and his own expert’s opinion. Although Yakavonis argues that she was reasonable in adding Hyatt to the suit because of Dolphin’s assertion that Hyatt was a Fabre defendant, that claim does not relieve Yakavonis from doing her own investigation to determine if Hyatt has any liability. Although Dolphin is free to claim there is a Fabre defendant, Dolphin must bear the burden of naming that defendant and proving its claim before that Fabre defendant can be included on the jury verdict form. See § 768.81(3)(d) and (e), Fla. Stat. (2003). Therefore, Yakavonis cannot avoid responsibility for attorney’s fees simply because Dolphin claimed Hyatt was liable.

Yakavonis argues that even if Hyatt is entitled to attorney’s fees, she is only liable for those fees incurred after the expiration of the twenty-one day notice period given by Hyatt pursuant to section 57.105(4). The statute gives Yakavonis a twenty-one day window within which to withdraw her claim against Hyatt and avoid any attorney’s fees. However, once that time expires there is nothing in the statute which requires the time for computation of attorney’s fees to begin only then. The trial court is free to measure the attorney’s fees from the time it was known or should have been known that the claim had no basis in fact or law.

We conclude that the trial court did not abuse its discretion and there was substantial competent evidence to support the trial court’s decision.

Although we affirm the trial court’s decision to impose attorney’s fees from the beginning of Hyatt’s involvement in this litigation, we remand for the trial court to calculate the fees from that date until December 15, 2004, the date when it was determined that Hyatt was entitled to attorney’s fees, not January 10, 2005, as the trial court ordered. Attorney’s fees are only available for time spent litigating the issue of entitlement, not for the time spent litigating the amount of fees to be awarded. See State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 833 (Fla.1993).

Affirmed in Part, Reversed in Part.

GUNTHER and MAY, JJ„ concur.


source: Caselaw Access Project

license: Public Domain

text:
    SOUTH RIVERWALK INVESTMENTS, LLC, a Florida limited liability company, and Lonnie N. Jackson Marital Trust, UAD 10/13/89, Appellants, v. CITY OF FORT LAUDERDALE, a municipal corporation of the State of Florida, Appellee.
    No. 4D03-2781.
    District Court of Appeal of Florida, Fourth District.
    July 26, 2006.

      Richard G. Coker, Jr., of Coker & Feiner, Fort Lauderdale, for appellants.
    Hal B. Anderson and Clark J. Cochran, Jr., of Billing, Cochran, Heath, Lyles, Mauro & Anderson, P.A., Fort Lauder-dale, for appellee.
   HAZOURI, J.

The plaintiffs, South Riverwalk Investments, LLC, and Lonnie N. Jackson Marital Trust, appeal the dismissal with prejudice of their complaint for declaratory judgment. We reverse.

South Riverwalk was the contract vend-ee for the purchase of the South Riverwalk Property and the developer of a proposed mixed use development consisting of 501 residential dwelling units and 4,700 square feet of retail commercial use. Jackson Marital Trust was the owner of the parcel of land in the City of Fort Lauderdale which was the subject of the South River-walk application for development approval. In February 2000, South Riverwalk filed an application for site plan approval with the City of Fort Lauderdale for the South Riverwalk Project. The property is in an area designated by the City in its comprehensive plan as a Regional Activity Center (RAC). Under the designation of RAC, a total of 5,100 dwelling units were permitted and were to be allocated by the City on a first come, first served basis at the time of site plan approval. After several months of review by the City of the South Riverwalk Project site plan, it became apparent that the number of available dwelling units in the RAC was insufficient to allocate to all of the pending developments going through the site plan review process.

South Riverwalk continued through the City’s site plan review process addressing all of the issues that were raised by the City staff. By the end of October 2001, South Riverwalk had obtained the site plan sign-offs from all required City departments except the Planning Department, the last department to sign off on a site plan. By the time the site plan was.presented to the Planning department, all of the available dwelling units within the RAC had been allocated to other developments. Accordingly, the South Riverwalk Project site plan could not be approved until the City allocated additional dwelling units by amending its comprehensive plan. The City has since initiated the process to amend its comprehensive plan.

Under the City’s rules, a site plan application remains pending while items requiring approval remain open. Through July 2002, the site plan for the South Riverwalk Project was listed by the City as a pending site plan. As a pending site plan, the Project was ready to complete the processing for site plan approval once dwelling units became available. However, the City has now taken the position that South Riverwalk’s site plan application is not pending and no longer exists as an active application. In order to determine the status of their site plan application, plaintiffs filed this action for declaratory relief.

Section 86.021, Florida Statutes (2003), provides that

Any person ... whose rights, status, or other equitable or legal relations are affected by ... municipal ordinance, contract, ... or other article, memorandum, or instrument in writing may have determined any question of construction or validity arising under such ... municipal ordinance, contract, ... or other article, memorandum, or instrument in writing, or any part thereof, and obtain a declaration of rights, status, or other equitable or legal relations thereunder.

The applicable standard of review is provided in Palumbo v. Moore, 777 So.2d 1177 (Fla. 5th DCA 2001):

Generally, the standard of review of an order dismissing a complaint with prejudice is de novo. However, when dismissing a count in a complaint seeking declaratory judgment, the trial court’s ruling is accorded great deference. Therefore, as to the dismissal of the declaratory relief claim, the standard of review is whether the trial court abused its discretion. A motion to dismiss for failure to state a cause of action admits all well pleaded facts as true, as well as reasonable inferences that may arise from those facts.

Id. at 1178 (citations omitted). “The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff will succeed in getting a declaration of rights in accordance with his theory and contention, but whether he is entitled to a declaration of rights at all.” Golf Club v. City of Plantation, 717 So.2d 166, 171 (Fla. 4th DCA 1998) (quoting Rosenhouse v. 1950 Spring Term Grand Jury, 56 So.2d 445 (Fla.1952)).

The complaint alleges that harm would result to the appellants if the site plan application is no longer pending. The common law standard for a trial court to entertain a declaratory relief action is stated in May v. Holley, 59 So.2d 636 (Fla.1952). May explained that

it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interests are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

Id. at 639. We find that the facts, as alleged by the plaintiffs, satisfy the May standard and the trial court abused its discretion by dismissing the complaint with prejudice.

The key is whether there is a “bona fide, actual, present practical need for the declaration.” Id. (Emphasis added). The City argues that the issue is not ripe for adjudication because the complaint fails to allege that additional dwelling units had become available or would ever become available in the future. If no dwelling units become available, the site plan can never be approved in the designated RAC, whether the application is declared pending or terminated.

“Any declaratory judgment ... may be rendered by way of anticipation with respect to any act not yet done or any event which has not yet happened.... ” § 86.051, Fla.Stat. (2003). The fact that additional dwelling units have not yet been allocated is not dispositive of the motion to dismiss. A party is entitled to a declaration of rights where the ripening seeds of controversy make litigation in the immediate future appear unavoidable. See Platt v. Gen. Dev. Corp., 122 So.2d 48, 50 (Fla. 2d DCA 1960).

In Dade County v. Benenson, 326 So.2d 74, 75 (Fla. 3d DCA 1976), property owners expended substantial sums of money to develop a tract of land as a modern industrial park and office building complex, relying on the present Dade County zoning laws. The Aviation Department of Dade County proposed a runway extension at Miami International Airport in the direction of the plaintiffs’ property. The proposed extension would reduce the distance between the runway and the property and would substantially reduce the allowable height of all structures permitted on the property. The Dade Board of County Commissioners then adopted a resolution which authorized implementation of the provisions of the Aviation Department’s proposal. The plaintiffs sought a declaration of their property rights as affected by the County’s resolution.

Dade County argued that the “allegations [were] of threatened future actions ... which might or might not occur, or which might occur in a manner quite different from that anticipated by plaintiffs.” Id. at 76. The court held that “[t]he plaintiffs have a right to have determined the present status of their property as regards the legal effect of the actions already taken by the County.” Id. “The complaint alleges present plans for development of the affected lands. It also alleges a justifiable doubt as to plaintiffs’ legal rights under actions already taken by the County.” Id.

In the present case, South Riverwalk expended substantial time and money throughout the site plan application process, paying application fees and obtaining required sign-offs from several City departments. The benefit of this expended time and money would be lost upon termination of the site plan application. The complaint sufficiently alleges that the City has initiated the process of amending its comprehensive plan to allocate additional dwelling units. Plaintiffs have a right to have determined the present status of the site plan application in light of the City’s current plans to amend its comprehensive plan.

Reversed and Remanded.

GUNTHER and MAY, JJ„ concur.


author: ALTENBERND, Judge.

text:
    In the Interest of O.C., a child. L.M.C., Mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D05-3123.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.

      Jessica C. Tien of Tien Law Group, Tampa, for Appellant.
    Bernie McCabe, State Attorney, and D. Jeannine Dalton, Assistant State Attorney, Clearwater, for Appellee.
   ALTENBERND, Judge.

L.M.C. appeals an order adjudicating her two-year-old child, O.C., dependent, based primarily upon a bruise the child received when she was approximately ten months old. At the time the bruise occurred, L.M.C. was incarcerated and the child was residing with a couple chosen by L.M.C. to care for the child. Because this unexplained incident of bruising is insufficient to support a finding of dependency, we reverse.

L.M.C. is currently incarcerated and is not expected to be released until 2007. In December 2003, during her incarceration, L.M.C. gave birth to O.C. L.M.C. asked a close friend, C.G., to care for the child until she was released from prison. C.G. resides with his fiancee and their child, who is approximately the same age as O.C. After a limited background check of the couple, facilitated by the Department of Corrections, O.C. was placed in the care of C.G. and his fiancée. O.C. lived with the couple and regularly attended daycare until she was ten months old.

On November 18, 2004, the Department of Children and Families received an abuse report concerning O.C. The report contained a number of serious allegations. It alleged that the child had been sick and vomiting for over one month, with the vomit smelling of feces, but the caregivers had not provided medical care; that “on more than one occasion, [the child] has not had any food”; that there was no.food in the house and would not be any food in the house for four days; that the child was not placed in a car seat during transportation; that the caregivers could not afford to buy food for the child; and that the child had an unexplained bruise on her bottom. The source of this report has remained anonymous, as provided for under Florida law. See § 39.202(5), Fla. Stat. (2004).

The report was investigated immediately. A child protective investigator went to the caregivers’ home. That investigator found the home hazard-free and stocked with an appropriate amount of food. In fact, the caregivers had recently purchased groceries. The investigator found the child in good health and later verified with the child’s physician that the child had received regular and appropriate medical care through the caregivers. The investigator did, however, observe an unexplained bruise on the buttocks of O.C. The bruise was four inches across and orange in color with some areas darker than others. The caregivers denied knowing anything about the bruise or how it occurred. The child had been at daycare for the majority of that day, and the caregivers said they had not noticed a bruise that morning when preparing the child for daycare. There was no indication when or how the bruise occurred.

When the caregivers were asked how they disciplined the child, each responded that they might give the child “a few taps on the butt” or a “spank” “over the diaper.” The caretakers admitted that they were of limited means and sometimes had difficulty meeting the financial needs of both children but explained that they were making do. The caretakers’ own child was examined and showed no signs of abuse.

The child protective investigator removed O.C. from the home, filed a petition to shelter the child, and placed the child in foster care. The investigator admitted at the dependency trial that she did this solely as a result of the unexplained bruising on the child’s buttocks. No other action was taken regarding the caretakers or their child. The Department then filed a petition for dependency against L.M.C.

L.M.C. contested the dependency. At the trial, she expressed confusion as to why the child could not remain in the care of the caregivers chosen by her rather than in foster care. The only witnesses presented by the Department were the pediatric nurse practitioner from the Child Protection Team who had examined the child and described the bruise and the child protective investigator who investigated the abuse. There was no evidence to support any of the allegations in the initial report other than the unexplained bruise on the child’s buttocks. Indeed, not only were a majority of the initial allegations unsupported by evidence, some were actually refuted by the evidence the Department presented.

At the conclusion of the evidence, L.M.C. argued that there was no competent, substantial evidence to support an adjudication of dependency. The trial judge rejected L.M.C.’s argument and ruled that the child was dependent. In doing so, the trial judge specifically relied upon the allegations in the petition that were not supported by evidence at the hearing.

This case is a bit unusual because it involves an allegation of dependency based not upon the actions of a parent, but upon the actions of a caregiver to whom the parent entrusted the child. The Department did not assert or argue that L.M.C. knowingly placed the child with an unsafe caregiver in an unsafe environment, thus herself creating the situation causing a dependency. Although the Department sought to prove that the caregiver or his fiancée abused or neglected the child, neither the caregiver nor his fiancée are parties to this action. Certainly, if the Department were faced with a caregiver who abused, abandoned, or neglected a child and a parent who was unable to care for the child or to select an appropriate alternate placement, a dependency action may be required. In this case, however, the evidence presented by the Department did not establish that either the caregiver or L.M.C. abused, abandoned, or neglected the child. The adjudication of dependency must therefore be reversed.

In order to adjudicate a child dependent, a trial court must find by the preponderance of the evidence that the child has been abused, abandoned, or neglected or is at risk of imminent abuse, abandonment, or neglect. M.J.S. v. Dep’t of Children & Family Servs. (In re D.J.W.), 764 So.2d 825 (Fla. 2d DCA 2000). An adjudication of dependency will be upheld where competent, substantial evidence supports the trial court’s findings of fact. D.R. v. Dep’t of Children & Family Servs., 898 So.2d 254, 255 (Fla. 3d DCA 2005). Here, however, there was no allegation that this child had been abandoned and no competent, substantial evidence to support a finding that the child was a victim of “abuse” as defined in section 39.01(2) or “neglect” as defined in section 39.01(45).

Pursuant to section 39.01(2), “abuse” of a child is “any willful act ... that results in any physical, mental, or sexual ... injury or harm that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” Pursuant to section 39.01(30)(a), “harm” to a child’s health or welfare can occur when any person

[i]nflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted.

This statute defines injuries to specifically include sprains, bone or skull fractures, brain or spinal cord damage, injury to internal organs, suffocation, drowning, burns, cuts, permanent or temporary disfigurement, and permanent or temporary loss or impairment of a body part or function. See § 39.01(30)(a)(1)(a)-(j). It also proscribes “[ljeaving a child without adult supervision or arrangement appropriate for the child’s age or mental or physical condition, so that the child is unable to care for the child’s own needs.” § 39.01(30)(a)(3). Finally, section 39.01(30)(a)(4) provides that “injury” includes the following elements:

Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of the following or other similar injuries:
a. Sprains, dislocations, or cartilage damage.
b. Bone or skull fractures.
c. Brain or spinal cord damage.
d. Intracranial hemorrhage or injury to other internal organs.
e. Asphyxiation, suffocation, or drowning.
f. Injury resulting from the use of a deadly weapon.
g. Burns or scalding.
h. Cuts, lacerations, punctures, or bites.
i. Permanent or temporary disfigurement.
j. Permanent or temporary loss or impairment of a body part or function.
k.Significant bruises or welts.
Pursuant to section 39.01(45), “neglect”
occurs when a child is deprived of, or is allowed to be deprived of, necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment when such deprivation or environment causes the child’s physical, mental, or emotional health to be significantly impaired or to be in danger of being significantly impaired. The foregoing circumstances shall not be considered neglect if caused primarily by financial inability. unless actual services for relief have been offered to and rejected by such person.

The evidence presented to the dependency court did not establish that O.C. was a victim of “neglect” as defined in section 39.01(45). In addition, the circumstances described by the Department would qualify as “abuse” only if the dependency court could determine by a preponderance of the evidence that one of the caregivers inflicted or allowed to be inflicted upon the child “inappropriate or excessively harsh disciplinary action that is likely to result in” injury to the child, see § 39.01(2), (30)(a)(4), perhaps consisting of “significant bruises or welts,” see § 39.01(30)(a)(4)(k).

- Case law has established, however, that a single incident of a serious bruise on the buttock of a child, perhaps caused by corporal punishment, will not support a finding of dependency. See T.G. v. Dep’t of. Children & Families, 927 So.2d 104 (Fla. 1st DCA 2006) (holding single instance of corporal discipline meted out by the mother, to one of five children resulting in bruise that was not significant and did not require medical attention did not support finding of dependency); A.A. v. Dep’t of Children & Families, 908 So.2d 585 (Fla. 5th DCA 2005) (holding dependency was improper based on evidence that mother had her older son discipline her difficult younger child, and discipline resulted in punches that left bruises or welts on child’s back and shoulder); J.C. v. Dep’t of Children & Families, 773 So.2d 1220 (Fla. 4th DCA 2000) (finding stepfather’s routine of spanking his oldest child with a belt, which on one occasion caused a bruise on the child’s buttocks, did not qualify as excessive corporal discipline because the bruises were insignificant, did not constitute temporary disfigurement, and did not put the child at risk of imminent abuse or cause the child to suffer significant mental impairment); R.S.M. v. Dep’t of Health & Rehabilitative Servs., 640 So.2d 1126 (Fla. 2d DCA 1994) (mere presence of bruises resulting from corporal punishment is not competent, substantial evidence of excessive corporal punishment or temporary disfigurement); In re S.W., 581 So.2d 234 (Fla. 4th DCA 1991) (holding that evidence was insufficient to support finding of abuse based upon a single incident in which mother repeatedly hit child with a belt and child was observed with recent bruises, including bruises to the face which may have been caused when child tried to run away, none of which required medical treatment); In re W.P., 534 So.2d 905 (Fla. 2d DCA 1988) (finding evidence that father slapped his child on the face and left a mark insufficient to support a finding of dependency because the mark did not require medical attention). Usually, some evidence of a pattern of excessive punishment or a single punishment resulting in a more serious injury is required. See, e.g., J.L. v. Dep’t of Children & Families, 899 So.2d 1254 (Fla. 4th DCA 2005) (dependency was supported by finding that father hit naked child with a belt twice within same week as punishment, leaving bruising and welts, and intended to continue such punishments); O.S. v. Dep’t of Children & Families, 821 So.2d 1145, 1148 (Fla. 4th DCA 2002) (finding mother’s paddling of daughter excessive as it left bruises over majority of daughter’s buttocks, legs, and neck; some of the bruises persisted for more than six weeks; the child testified that this was not even the most severe beating she had received; and there was evidence of daughter’s self-mutilation reflecting a mental injury resulting from abuse).

Admittedly, the cited cases address children in the care of a parent who are disciplined by the parent. Nevertheless, if a single incident of bruising would not support a finding of dependency if it occurred in the mother’s care, it is difficult to see how it could be characterized as the “abuse” necessary to support a finding of dependency when it occurs in the care of people entrusted by the mother to care for the child.

Parents have a fundamental liberty interest in determining the care and upbringing of their children “free from the heavy hand of government paternalism.” Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 570 (Fla.1991) (citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982)). This liberty interest “does not evaporate simply because they have not been model parents.” Santosky, 455 U.S. at 753, 102 S.Ct. 1388. Parents who find themselves temporarily unable to care for their child are generally permitted to choose appropriate caregivers so long as neither the parent nor the caregiver responsibly chosen by the parent abandons, abuses, or neglects the child, thus justifying the intervention of the State to protect the child’s interest. See, e.g., Adoption Miracles v. S.C.W. (In re S.N.W.), 912 So.2d 368, 373 n. 4 (Fla. 2d DCA 2005); A.H. v. Dep’t of Children & Family Servs. (In re W.H.), 846 So.2d 636 (Fla. 2d DCA 2003); J.R.S. v. Dep’t of Children & Families (In re Z.J.S.), 787 So.2d 875, 879 (Fla. 2d DCA 2001) (Northeutt, J., concurring). Here, there was no evidence that L.M.C. or the caregiver chosen by her to care for her child during her incarceration abused, abandoned, or neglected the child. Under these circumstances, there was no basis upon which to find O.C. was dependent. See A.H., 846 So.2d 636. We therefore reverse the order adjudicating O.C. dependent.

At the dependency trial, C.G., the person to whom L.M.C. entrusted the care of O.C., testified on L.M.C.’s behalf. L.M.C. made clear that she wanted the child returned to the care of C.G. and his fiancée. Although it is not clear from our record, it appears that C.G. was willing to continue to care for O.C. if the child was not declared dependent. Because we are unable to determine whether O.C. is able to return to the care of C.G., we remand the matter to the circuit court. If C.G. is able to care for O.C. and L.M.C. remains amenable to that placement, or if L.M.C. has an alternative appropriate placement for the child, the dependency action shall be dismissed. If no appropriate placement is currently available for the child, the Department may amend its petition for dependency and proceed accordingly.

Reversed and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . The father of the child, who apparently did not contest L.M.C.'s placement of the child with a nonrelative caregiver, did not contest the dependency of the child. He is thus not a party to this appeal.


author: CASANUEVA, Judge.

text:
    FRONTAGE ROAD PARTNERS, LLC, a Florida limited liability corporation, Appellant, v. Carolyn D. McMULLEN, Appellee.
    No. 2D06-1439.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.

      Marion Hale and Steven H. Weinberger of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, for Appellant.
    Hala Sandrídge and Tirso M. Carreja, Jr., of Fowler White Boggs Banker P.A., Tampa, for Appellee.
   CASANUEVA, Judge.

Frontage Road Partners, LLC, filed this nonfinal appeal pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), when the trial court denied its motion to compel arbitration. The trial court found that Frontage Road Partners had waived its contractual right to arbitration by taking action inconsistent with that right, i.e., filing a complaint in the circuit court for specific performance of a real estate sales contract in which it was the buyer. Along with its complaint, Frontage Road Partners also filed a notice of lis pendens. We agree with our sister court’s opinion in Bonner v. RCC Associates, Inc., 679 So.2d 794 (Fla. 3d DCA 1996), that a plaintiff waives a contractual right to arbitrate by filing a complaint and a notice of lis pendens without simultaneously requesting a stay and an order compelling arbitration.

Frontage Road Partners argues that it had to file the complaint in order to get a lis pendens so that the property would not be sold to a third party pending resolution of its dispute with the seller of the property, Carolyn D. McMullen. We do not disagree that it was proper to take such action. However, that action, while needed in such a case as this, is not inconsistent with a contractual right to arbitrate the dispute if a request for a stay and an order compelling arbitration accompanies the complaint. Filing a complaint and lis pen-dens to protect the right to buy the property or requesting arbitration pursuant to the sales contract are not mutually exclusive actions. The trial court based its order on several grounds. We do not address the other grounds but conclude that the action of filing a complaint and notice of lis pendens based on a contract without simultaneously requesting a stay and an order compelling arbitration waives that party’s contractual right to arbitrate.

Affirmed.

NORTHCUTT and CANADY, JJ., Concur.


author: WALLACE, Judge.

text:
    Demetrius D. SPIRES, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-1296.
    District Court of Appeal of Florida, Second District.
    July 26, 2006.
   WALLACE, Judge.

Demetrius D. Spires challenges the postconviction court’s order that summarily denied his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm the order in all respects except on claim one of Spires’ motion. Because claim one presents a facially sufficient claim that is not refuted by the record attachments, we reverse the order as it relates to that claim.

In claim one of his motion, Spires alleged that his counsel failed to investigate, depose, and call Tony Sorey as a witness. According to Spires, Gloria Bryant was the State’s key witness at trial. Bryant, who claimed to be an eyewitness to the crime, provided details concerning the offense and identified Spires as the perpetrator. Spires explained that the State had no physical evidence linking him to the crime and that the State largely based its case on Bryant’s testimony. The theory of the defense was that Bryant fabricated her testimony. Therefore, it was critical for the defense to identify inconsistencies between her testimony and the testimony of other witnesses. Spires contended that Sorey’s testimony would have helped the defense because Sorey would have testified that Bryant was not an eyewitness and that she did not see or hear any of the matters to which she testified at trial.

Spires’ claim one is a model and facially sufficient Nelson claim. In addition to the allegations of claim one as described above, Spires identifies the witness, alleges the witness’s availability for trial, provides a brief statement of the witness’s potential testimony, and explains how the omission of the witness’s testimony prejudiced the outcome of the trial. The postconviction court’s record attachments do not conclusively refute the allegations of claim one. Therefore, in the absence of an evidentiary hearing, we must accept the allegations of claim one as true. See Peede v. State, 748 So.2d 253, 257 (Fla.1999); Benton v. State, 884 So.2d 90, 92 (Fla. 2d DCA 2004). Accordingly, we reverse and remand for the postconviction court to reconsider claim one of Spires’ motion and either to attach additional record attachments that conclusively refute the claim or to conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded.

KELLY and LaROSE, JJ., Concur.

      . Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004).


author: THOMPSON, J.

text:
    Michael WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3450.
    District Court of Appeal of Florida, Fifth District.
    July 28, 2006.
    Michael Williams, Crestview, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, J.

Michael Williams appeals the partial summary denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. He contends that the trial court erred by modifying his sentence without allowing him to withdraw his plea and by summarily denying two claims without attaching parts of the record that refute his claims. We agree he should have been granted the opportunity to withdraw his plea and reverse.

Williams received a 15-year sentence after he pled to and was convicted of three charges in case number 94-921. After Williams served eight years, the trial court suspended the remaining seven years and placed him on three years’ probation. Williams did not appeal the sentence and was subsequently released from prison. After his release, Williams violated his probation, resulting in a new three-year probation term. Again, he did not appeal.

Williams subsequently committed new offenses in case number 03-216. He pled guilty to the new charges and to violating his probation in case number 94-921. The court sentenced him in case number OB-216 to two terms of 20 years’ prison and 15 years’ prison, all concurrent. In case number 94-921, the court revoked his probation and sentenced him to 20 years’ prison, concurrent with the sentences imposed in case number 03-216. Williams’s appeal of the judgment and sentence in case number 03-216 remains pending.

In this rule 3.850 motion, Williams asserted three claims for relief in case number 94-921. We address only his claim that his probation violation sentence exceeded the maximum permissible sentence, for which the trial court granted the relief of a modified sentence. We conclude that the court should have granted Williams the opportunity to withdraw his plea.

In case number 94-921, Williams originally received a true split sentence of 15 years, which was divided into eight years’ incarceration with the remainder suspended in favor of probation. When he violated probation, he agreed to a sentence of 20 years’ incarceration, which was an illegal sentence. See, e.g., Moore v. Stephens, 804 So.2d 575, 577 (Fla. 5th DCA 2002). Williams’s 8.850 motion alleged that trial counsel was ineffective for not moving to withdraw the plea and asked the court to allow him to withdraw. The trial court merely corrected the sentence and did not give Williams the opportunity to withdraw. This was error:

It is a well-established principle of law that a defendant should be allowed to withdraw a plea of guilty where the plea was based upon a misunderstanding or misapprehension of facts considered by the defendant in making the plea. Hence when a defendant pleads guilty with the understanding that the sentence he or she receives in exchange is legal, when in fact the sentence is not legal, the defendant should be given the opportunity to withdraw the plea when later challenging the legality of the sentence.

Forbert v. State, 437 So.2d 1079, 1081 (Fla.1983) (citations omitted); see also Williams v. State, 618 So.2d 773, 774 (Fla. 5th DCA 1993) (holding that, where mutual mistake resulted in illegal sentence, defendant should have opportunity to agree to illegality or withdraw plea).

Accordingly, we reverse and remand for the trial court to grant Williams the opportunity to accept the corrected sentence imposed in 94-921 or withdraw his plea in case number 94-921.

REVERSED and REMANDED.

PALMER and EVANDER, JJ., concur.

      . Burglary of a dwelling while armed, armed kidnapping, and possession of a firearm by a convicted felon. These new offenses are the subject of 5D05-2363.


author: PER CURIAM.

text:
    William J. MATHIS, III, Appellant, v. FIRST COAST ENERGY, L.L.P., Petro Services, Inc. and Aubrey Edge, Appellees.
    No. 1D05-4538.
    District Court of Appeal of Florida, First District.
    July 28, 2006.
    David A. Vukelja of David A. Vukelja, P.A., Ormond Beach, for Appellant.
    Michael G. Prendergast and Robert D. Sheesley of Coffman, Coleman, Andrews & Grogan, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See Canell v. Arcola Housing Corp., 65 So.2d 849 (Fla.1953); Ostman v. Lawn, 305 So.2d 871 (Fla. 3d DCA 1974).

ERVIN, BENTON, and BROWNING, JJ., concur.


text:
    Walter Ludwig HAMMEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-4021.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.
    James Marion Moorman, Public Defender, and J.L. “Ray” LeGrande, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Walter Ludwig Hammel raises two arguments in this appeal of his fifteen convictions of using a computer to seduce a child in violation of section 847.0135(3), Florida Statutes (2003). Mr. Hammel’s first argument is without merit, and we will not comment on it further. Mr. Ham-mel’s second argument is that his multiple convictions arise out of a single criminal episode. Therefore, according to Mr. Hammel, his convictions violate double jeopardy principles. We conclude that only one of Mr. Hammel’s fifteen convictions violates the prohibition against double jeopardy. Accordingly, we reverse Mr. Hammel’s conviction on count six, and we affirm his convictions on the remaining fourteen counts.

From October 20, 2003, through November 30, 2003, Mr. Hammel communicated with Sergeant Dennis Waters of the Eagle Lake Police Department in an Internet chat room called “Men for Boys.” Sergeant Waters posed as a thirteen-year-old boy and identified himself as “Larry.” Mr. Hammel used two personas when he conversed with Sergeant Waters: (1) Henry— Rand — 14, a fifteen-year-old boy, and (2) Walt Lou 2000, an adult male. Over the course of forty-one days, Mr. Hammel and Sergeant Waters had numerous conversations during which Mr. Hammel described various sexual acts that “Walt Lou” had performed on “Henry Rand” and various sexual acts that ‘Walt Lou” would like to perform on “Larry.” Using his Internet personas, Mr. Hammel encouraged “Larry” to meet ‘Walt Lou” in person. Ultimately, the fictitious characters arranged a meeting, and the police arrested Mr. Ham-mel when he arrived at the meeting location.

The State charged Mr. Hammel with eighteen counts of using a computer to seduce or to attempt to seduce a child or a person believed to be a child to commit any illegal act described in chapter 794, chapter 800, or chapter 827, Florida Statutes. Each count charged was intended to correspond to a separate Internet conversation between Mr. Hammel and Sergeant Waters. A jury found Mr. Hammel guilty of fifteen counts of the offense. The trial court sentenced Mr. Hammel to consecutive, five-year terms of imprisonment for counts one through four, totaling twenty years’ imprisonment. The trial court also sentenced Mr. Hammel to (1) concurrent, five-year probationary terms for counts five through seven; (2) concurrent, five-year probationary terms for counts nine through fifteen, to be served consecutively to counts five through seven; and (3) a five-year probationary term for count eighteen, to be served consecutively to counts nine through fifteen. In short, the trial court sentenced Mr. Hammel to serve twenty years in prison followed by fifteen years on probation.

Mr. Hammel argues that his conversations with Sergeant Waters were part of one ongoing event and, therefore, his convictions arise out of a single criminal episode. Article I, section 9 of the Florida Constitution protects criminal defendants from multiple convictions and punishments for the same offense arising out of a single episode. The test used to determine whether offenses arise from a single criminal episode requires a trial court to “ ‘look to whether there was a separation of time, place, or circumstances’ between the crimes because ‘those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent.’ ” McCann v. State, 854 So.2d 788, 792 (Fla. 2d DCA 2003) (quoting Hayes v. State, 803 So.2d 695, 704 (Fla.2001)). By looking at the spatial and temporal aspects of the crimes, a court can ascertain “whether the defendant had time to pause, reflect, and form a new criminal intent between the occurrences.” Eaddy v. State, 789 So.2d 1093, 1095 (Fla. 4th DCA 2001).

Although all of Mr. Hammel’s acts were targeted at the same victim, the separation of time between conversations shows that Mr. Hammel had time to pause, reflect, and form a new criminal intent before initiating each additional conversation. Although some conversations were separated by only one day, other conversations occurred five or seven days apart. The record demonstrates that each time Mr. Ham-mel contacted Sergeant Waters, he had formed a new intent to attempt to seduce “Larry” to commit an illegal act. Thus Mr. Hammel could have been properly charged for each Internet conversation without violating double jeopardy protections.

In all but one instance, each of the charges against Mr. Hammel reflects a separate Internet conversation with Sergeant Waters. However, counts five and six are based upon a single conversation or, stated differently, a single criminal episode. The State presented evidence that Mr. Hammel contacted “Larry” late in the evening on November 4. This conversation continued past midnight into the early morning hours of November 5. The State presented no evidence that Mr. Hammel contacted “Larry” a second time on November 5. Although there was only one conversation, the State charged Mr. Ham-mel in count five for his actions on November 4 and in count six for his actions on November 5. There was no temporal break in the conversation or a change in circumstances to warrant separate charges. Thus Mr. Hammel’s convictions for both count five and count six do violate the prohibition against double jeopardy.

Because Mr. Hammel was convicted twice for the same offense arising from a single criminal episode, we reverse his conviction on count six. We remand this case to the trial court to vacate the judgment on count six and to strike the portion of Mr. Hammel’s sentence related to that count. However, the total length of time Mr. Hammel will serve in prison and on probation will not be affected by the striking of the sentence for count six because that sentence was to be served concurrently with the sentences for counts five and seven. We note that Mr. Hammel need not be present for the entry of the corrected judgment and sentence. See Windisch v. State, 709 So.2d 606 (Fla. 2d DCA 1998). We affirm the remaining convictions and sentences without further discussion.

Affirmed in part; reversed in part; remanded.

WHATLEY and KELLY, JJ., Concur.


author: FULMER, Chief Judge.

text:
    Gillian J. SMITH, Appellant, v. Michael SMITH, Appellee.
    No. 2D04-3443.
    District Court of Appeal of Florida, Second District.
    Aug. 2, 2006.

      Mark A. Neumaier, Tampa, for Appellant.
    Corinda Luchetta, St. Petersburg, for Appellee.
   FULMER, Chief Judge.

In this appeal Gillian Smith, the Wife, challenges several items in the equitable distribution .scheme found in the trial court’s Amended Final Judgment of Dissolution of Marriage, as well as the overall unequal distribution in favor of the Husband, Michael Smith. Because several distributions are not supported by evidence in the record, we reverse and remand for the trial court to reconsider the distribution scheme.

The parties were married for about thirteen years at the time of their separation in March 2003. The Husband served in the Navy before and during the marriage and accrued a pension. Both parties took out education loans during the marriage, which had balances as of the time of dissolution. Other assets and liabilities included real property and mortgages thereon, vehicles, credit card and other debt, and 401(k) plans. At issue in this appeal are the trial court’s equitable distribution rulings regarding the Husband’s Navy pension, the education loans, certain credit card debts, mediation fees, and the overall unequal distribution in favor of the Husband.

We review the trial court’s distribution, of marital assets and liabilities for abuse of discretion. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). “The final distribution of marital assets ... must be supported by factual findings based on substantial competent evidence.” Guida v. Guida, 870 So.2d 222, 224 (Fla. 2d DCA 2004); § 61.075(3), Fla. Stat. (2003). “[W]hile appellate courts are reluctant to disturb the findings and judgments of a trial court, particularly in respect to financial awards in marital cases, it nevertheless becomes [the court’s] duty to do so when an award is clearly not supported by substantial, competent evidence.” DeHart v. DeHart, 360 So.2d 1285, 1286 (Fla. 2d DCA 1978).

The overall equitable distribution scheme

At the conclusion of the dissolution hearing, .the trial court asked the parties to submit written closing arguments. The parties did so, each attaching a proposed equitable distribution scheme. The Husband’s proposed scheme omitted the three credit card balances in controversy and the parties’ respective education loan balances. The Husband’s proposal resulted in a positive balance of $6,710.62 in the Wife’s favor, which the Husband proposed be equalized by a payment from the Wife to the Husband in the amount of $3,355.31.

The court adopted much of the Husband’s proposed scheme in its Amended Final Judgment, but also made the following changes: (1) two small assets were moved from the Husband’s column to the Wife’s column; (2) the controversial credit card balances were allocated to the Wife’s column; and (3) each party’s education loan balance was allocated to his or her respective column. The court’s distribution resulted in a disparity of $16,302.14 in the Husband’s favor. Inexplicably, however, the court also adopted the Husband’s equalization payment of $3,355.31, Wife to Husband, thus further increasing the differential in the Husband’s favor. The court did not state a reason for adopting this equalization figure or for making an unequal distribution. After a thorough review of the record, we are uncertain whether the trial court intended an unequal distribution in the Husband’s favor in a specific amount or whether the court intended an equal distribution but made one or more miscalculations.

The initial premise behind an equitable distribution of marital assets and liabilities is equal distribution. § 61.075(1). “However, where a justification is shown, a trial court may make an unequal distribution.” Feger v. Feger, 850 So.2d 611, 615 (Fla. 2d DCA 2003). And, “[t]he final distribution of marital assets, whether equal or unequal, must be supported by factual findings based on substantial competent evidence.” Guida, 870 So.2d at 224 (emphasis added). The “specific written findings of fact” are to include findings that “advise the parties or the reviewing court of the trial court’s rationale for the distribution ....” § 61.075(3)(d). Even when the court determines that an unequal distribution is warranted, the court “must ensure that neither spouse passes automatically from misfortune to prosperity or from prosperity to misfortune, and, in viewing the totality of the circumstances, one spouse should not be shortchanged.” Feger, 850 So.2d at 615 (citations and internal quotation marks omitted).

Here, although the trial court stated findings to support its allocation of individual assets and liabilities, it did not include explicit findings to support the overall disparity of the equitable distribution scheme or the extra “equalization” payment that further reduced the Wife’s column. On remand, after addressing the errors we discuss below, the trial court shall reconsider the overall distribution scheme. If the court determines that an unequal distribution is warranted, the court must include in its order factual findings that justify the unequal distribution.

Husband’s Navy pension

The trial court found that the Husband served in the Navy for twenty years, including nine years and seven months during his marriage to the Wife. Ajt the dissolution hearing, the Husband offered into evidence an exhibit titled “Present Value of Wife’s Share of Husband’s Military Retirement Pay.” The Husband testified that he calculated the value on his own, using an IRS life expectancy table and a computer. The Wife objected on the ground that the Husband was not an actuary and that it was her view that the Husband’s lawyer did the actual calculations and was having the Husband testify to them. The court accepted the Husband’s calculation as a demonstrative aid, but not as evidence, and stated that “it will not have the same weight as evidence, however, I will use it to arrive at a decision.” Because, at this point, the hearing was in its last stages, the court ordered the parties to submit closing arguments in writing and advised the Wife that she could include her own calculation of present value as a demonstrative aid if she wished to oppose the Husband’s calculation.

The Wife’s closing argument did not include a present value calculation of the pension or even a value for or allocation of the pension in her proposed equitable distribution chart. The Wife focused her argument on the use of the deferred-distribution method of distributing her share of the pension, as opposed to the Husband’s proposed immediate-offset method. The court accepted the Husband’s calculation and ordered that “[t]he Husband is awarded his Navy pension, which has a present value of $26,341.00.” On appeal, the Wife argues (1) that the Husband’s pension figure was actually that of the Wife’s share of the pension only and that therefore the equitable distribution scheme, by omitting the Husband’s share, was skewed in the Husband’s favor by an even greater amount than that already reflected in the bottom line, and (2) that the Husband’s present value calculation, not performed by an expert, was arbitrary.

In the Amended Final Judgment, the trial court makes a factual finding that “the marital value of the Husband’s Navy pension is $26,341.” However, the trial court also refers to the $26,341 figure as “the Wife’s share of the monthly benefit.” Thus, it is not clear whether the court realized that it was distributing only one-half of the marital portion of the pension and that the Husband’s share of the marital portion of the pension was not expressly included in the equitable distribution.

The Wife was entitled to have equitably distributed the portion of the Husband’s Navy pension that accrued during the marriage. §§ 61.075(5)(a)(4), 61.076(1). Although we could locate no case address7 ing the situation in which one spouse’s portion of the pension was omitted from an equitable distribution scheme, it is clear that if a pension with a marital portion exists, the entire marital portion must be incorporated into the scheme. See, e.g., Diffenderfer v. Diffenderfer, 491 So.2d 265, 270 (Fla.1986) (holding that “a spouse’s entitlement to pension or retirement benefits must be considered a marital asset for purposes of equitably distributing marital property”). On remand, therefore, the trial court shall include the entirety of the marital portion of the Husband’s Navy pension in the equitable distribution.

Because on remand the court will be required to reconsider its distribution of the pension, any impropriety in the method used by the Husband to calculate the Wife’s portion of the pension has become a moot point. Nevertheless, because the trial court accepted the Husband’s proposal to use the immediate-offset method to distribute the pension, we direct the trial court’s attention to the guidance provided in Trant v. Trant, 545 So.2d 428 (Fla. 2d DCA 1989). We also direct the trial court’s attention to the observation that this method of distribution “requires complicated calculations and will generally require expert testimony.” Id. at 429. Finally, we further note that it is the pension holder’s interest in the pension that is calculated to present value based on competent, substantial evidence. In this ease, there was no evidence to support the Husband’s calculation in any respect. A demonstrative aid together with argument does not provide an evidentiary basis for a finding as to valuation of a pension.

Education loans

The court found that the Wife had an outstanding education loan balance of $30,908, and that the Husband had an education loan balance of $11,000. Both loan balances were incurred during the marriage and are, therefore, marital debts. See § 61.075(5)(a)(1). The parties do not dispute the balances. The court allocated each party’s loan balance to that party, writing:

Pursuant to Florida Statute 61.075(1)(g), the Court finds that it is appropriate that each party should be responsible for [his or her] student loan[ ] as neither party will benefit from the future income of the other party post divorce. The Court finds that the Husband helped support the Wife while she was obtaining her nursing degree. The Wife is now self sufficient and the Husband will not receive any benefit of her income in the future, just as the Wife will not receive any benefit of the Husband’s future income.

Section 61.075(1) lists factors that a court may consider when ordering an unequal distribution. If, in citing this section, the trial court intended that its allocation of the two loan balances justified an overall unequal distribution in the Husband’s favor, we conclude that the court was in error. The mere fact that the Wife’s loan balance happens to be larger than the Husband’s does not justify an unequal distribution scheme. The fact that “the Husband will not receive any benefit of [the Wife’s] income” after the dissolution is not a factor contemplated by section 61.075(1). Furthermore, the record indicates that by completing nursing school, the Wife was able to contribute significantly more to the household income than she did before. We also note that the specific provision cited by the trial court, section 61.075(l)(g), does not address the incurring of marital liabilities in general but rather addresses “the incurring of liabilities to, both the marital assets and the nonmarital assets of the parties.” An education loan is not a liability that attaches to a marital or nonmarital asset.

Credit card debt

The court allocated $12,522.86 in credit card debt to the Husband and $18,177.00 to the Wife. On appeal, the Wife disputes $13,240.00 of the latter figure, comprising three credit card balances. With respect to these cards the court stated:

that there were various other credit cards that the Wife obtained without the Husband’s knowledge. There was evidence presented in court that the Wife used these credit cards to go on vacation with her family without the Husband. Pursuant to Florida statute 61.075(l)(g), one ... of the factors to be considered by the Court in distributing marital assets and liabilities is “the contribution of each spouse to the acquisition, enhancement, and production of income or the improvement of, or the incurring of liabilities to, both the marital assets and non marital assets of the parties.” To the extent that these credit cards obtained by the Wife without the Husband’s knowledge were incurred during the marriage and are by definition marital liabilities, the Court finds it appropriate to require the Wife to be responsible for the AT & T MasterCard which the Wife has valued at $11,000.00, the Citi Financial which the Wife has valued at $1,300.00, and ChartWay Visa which the Wife has valued at $940.00. See Jons- son v. Jonsson, 715 So.2d 1064 (Fla. 5th DCA 1998).

An exhibit of credit card statements entered into evidence indicates that about $5,000 was. transferred to the AT & T MasterCard from other credit cards and that the card was used for purchases at department stores. The Wife testified, without contradiction, that the majority of the AT & T MasterCard debt was a consolidation of existing marital liability. The Wife acknowledged that she used the card to go on vacation with her mother without the Husband. It is unclear from the record how much of the balance on the card was used for this vacation other than the Wife’s testimony that it “was not very much.” The Husband testified that he did not know what the Wife used this card for. Although we agree that the trial court would have been acting within its discretion to allocate the vacation component of the AT & T MasterCard debt to the Wife, there is no competent, substantial evidence that the entire balance on the card was attributable to the Wife’s alleged misuse of credit. The court’s allocation of the entire balance to the Wife was therefore an abuse of discretion. Furthermore, contrary to the court’s findings, there was no evidence that the CitiFinancial card and the Chart-Way Visa were used for the Wife’s husband-free vacation or for any improper purpose. And, there is no evidence that these cards were obtained without the Husband’s knowledge. Thus, allocating the entire balances of these two cards to the Wife was likewise an abuse of discretion. As such, the court will need to reconsider these three debt distributions on remand.

As with the education loans, the trial court cited section 61.075(l)(g) in its order, but the purpose of the citation is not entirely clear. As previously explained, this provision does not address marital liabilities in general. To the extent that the trial court intended that the balance on the AT &. T MasterCard attributable to the Wife’s vacation justified an unequal overall distribution in the Husband’s favor, the trial court will need to make such a finding explicitly and ensure that the bottom line of the equitable distribution reflects the amount attributable to the vacation.

Mediation fees

In its equitable distribution scheme, the trial court allocated to the Husband, as a marital liability, $1960 in mediation fees paid by the Husband. This was error. We do not consider mediation fees to be a marital liability as défined in section 61.075(5). And, even if they were categorized as a marital liability, it was error to include them in the equitable distribution scheme because they were incurred after the date established for identification and valuation of marital liabilities. If the parties were referred to mediation by court order, the apportionment of mediation fees should have been stated in the order of referral. See Fla. Fam. L.R.P. 12.740(c) (2003). Because these fees- were apparently not previously addressed in a mediation order, they should be addressed as a cost issue under section 61.16(1). On remand, the court shall omit mediation fees from its revised equitable distribution scheme.

Conclusion

We reverse and remand for the trial court to reconsider its equitable distribution scheme in a manner consistent -with this opinion. If the trial court determines that an unequal distribution is warranted, it shall make the requisite factual findings to justify an unequal distribution based on competent, substantial evidence.

WHATLEY and LaROSE, JJ„ Concur.

      . This is our own calculation based on the individual asset and liability figures found in the "Ordered and Adjudged" section of the trial court's order. The order does not include a summary of the court's equitable distribution scheme showing each party’s total. We urge trial courts to include in their orders of dissolution a tabular summary of the equitable distribution scheme. Doing so should assist the trial court itself in finding errors such as those described here; it will also enable litigants to pinpoint potential errors that can readily be addressed in a motion for rehearing, and it will assist the appellate court in reviewing the equitable distribution scheme.

      . The trial court wrote simply: "After distributing the assets and liabilities, the Court finds that the Wife shall pay the Husband an equalization payment of $3,355.31 upon the entry of the Final Judgment."

      . If, on remand, the trial court retains certain rulings in the Amended Final Judgment of Dissolution of Marriage that are not at issue in this appeal, the court will need to correct the following discrepancies before issuing its revised judgment. In the "Background and Jurisdictional Findings” section of the Amended Final Judgment, the court found that the Wife's 401(k) should be distributed to the Husband. In the "Ordered and Adjudged” section of the judgment, the court distributed this asset to the Wife. In the "Background and Jurisdictional Findings” section, the court distributed one component of a Paine Webber account to the Husband and the other component to the Wife. In the "Ordered and Adjudged” section, both components were distributed to the Wife.

      . The only mediation-related document in the record on appeal is an "Outcome of Family Mediation” showing that the parties had reached an impasse. A circuit judge different from the one who presided over the dissolution hearing was overseeing the case at the time of mediation.