author: LINDSEY, J.

text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES and the Guardian Ad Litem Program o/b/o P.R., child, Appellants, v. A.R. and R.L., parents, Appellees.
    Nos. 3D17-2003 & 3D17-1942
    District Court of Appeal of Florida, Third District.
    Opinion filed August 3, 2018
    Karla Perkins, and Sarah J. Rumph (Tallahassee), Department of Children and Families; Laura J. Lee (Sanford), Guardian ad Litem Program; Robert Latham, UM Children & Youth Law Clinic, and Robert Latham, for appellants.
    Thomas Butler, P.A., and Thomas J. Butler, Miami Beach; Kevin Coyle Colbert ; Ilene F. Tuckfield, P.A., and Ilene F. Tuckfield, Miami, for appellees.
    Before ROTHENBERG, C.J., and SALTER, and LINDSEY, JJ.
   LINDSEY, J.

The Florida Department of Children and Family Services ("DCF") and the Guardian ad Litem Program (the "GAL") appeal a final judgment dismissing the petition for termination of parental rights of the mother, denying the petition for termination of parental rights of the father, and adjudicating the child dependent as to the father only. Because the trial court incorrectly applied the statutes defining sexual abuse, we reverse the adjudication of dependency as to the father and remand for entry of an order finding the father sexually abused the child and for further consideration of the best interests of the child and whether termination is the least restrictive means of protecting the child. Because there is competent substantial evidence to support the trial court's finding that there was no credible testimony that the mother failed to protect the child we affirm, without further elaboration, the dismissal as to the mother.

I. PROCEDURAL AND FACTUAL BACKGROUND

In 2012, A.R. (the "father") and L.R. (the "mother") (collectively, "the "parents")

adopted P.R. (the "child"), whose date of birth is 03/19/2003, from China when she was nine years old. At the time of adoption, she was in a placement and had previously been in an orphanage.

The triggering event for this case occurred during a regularly scheduled therapy session between the child and her therapist. The child's therapist had been chosen by the parents and had been seeing the child for almost a year prior to address issues unrelated to this case, associated with school and peer relations. The child, who was at that time thirteen years old, purportedly spontaneously disclosed to her therapist that she and her father were "doing the S thing." When the therapist asked the child for clarification, the child allegedly spelled out the word "s-e-x." Upon questioning, the child purportedly explained that her father had been touching her breasts and genital area. According to her therapist, the child did not want for her to tell anyone because she loves her father very much, does not want him to get into trouble and "was getting used to it." The therapist further reported that the child was "crying hysterically" at the time of this alleged conversation. Based on this conversation, the therapist placed a call to the State of Florida abuse hotline and an investigation commenced. Thereafter, the child made similar disclosures to five other people.

A. Proceedings Leading up to the Termination of Parental Rights Trial

DCF filed a petition to shelter the child based on allegations of sexual abuse by the father and failure to protect by the mother. On that same day, the trial court held a hearing, found probable cause and entered an order sheltering the child. Pursuant thereto, the trial court released the child to the temporary custody of the parents' friends (the "previous caregivers"). The trial court ordered therapeutic visitation with the mother and no contact with the father. A guardian from the GAL was appointed to represent the child's best interests (the "guardian").

DCF also filed a petition for termination of parental rights as to both parents. DCF alleged the parents "engaged in egregious conduct or had the opportunity and capability to prevent, and knowingly failed to prevent, egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the [c]hild." § 39.806(1)(f), Fla. Stat. (2017). The parents purportedly "subjected the [c]hild to sexual battery or sexual abuse as defined in Section 39.01, or chronic abuse." § 39.806(1)(g), Fla. Stat. (2017).

In addition to the allegations of egregious conduct, sexual battery or sexual abuse, and chronic abuse by the father, DCF contended the mother failed to protect the child after the child disclosed the abuse. DCF claimed the mother "not only knew of the molestation, she also facilitated ongoing contact between the perpetrator and victim [c]hild in an attempt to manipulate or pressure the [c]hild while investigation into the allegations was pending." In the petition, the GAL recommended the termination of parental rights as to both parents.

B. The Termination of Parental Rights Trial

The termination of parental rights trial took place over eight days. A total of eighteen witnesses testified at trial, including the father, the mother and the child. In addition, among others, the following exhibits were admitted: (1) a transcript of the testimony given by the mother at the father's bond hearing; (2) a recording of the father's interview at the Doral Police Department held on January 11, 2017; (3) the child's forensic interview; (4) postings from the father's Facebook account depicting the child; and, (5) messages and video sent from the father to the mother which were located on the child's electronic devices.

C. Proceedings Following the Termination of Parental Rights Trial

At the conclusion of the trial, the trial court entered an unelaborated order denying the petition for termination of parental rights as to both parents and adjudicating the child dependent as to the father. On that same date, the trial court entered two visitation orders. One order granted the mother unrestricted visitation with the child and the other order granted the father supervised weekly visitation. The trial court denied DCF's and the GAL's motion for stay pending review.

DCF, later joined by the GAL, filed an emergency petition for writ of certiorari regarding two visitation orders and an emergency motion for review of the denied stay. The GAL filed an amended motion for review of the two visitation orders. This Court granted the amended motion for review and entered a stay pending further order of this Court for all purposes, except the trial court's entry of findings of fact and conclusions of law relating to its summary denial of the petition for termination of parental rights.

Subsequently, the trial court entered the final judgment on appeal here. The final judgment references only the testimony of the child, the parents, Ms. Pena, and Dr. Klein.

In the final judgment, the trial court made the following findings:

a. [A]ny touching around the chest or breast area of the Child was incidental, resulting from horseplay, wrestling and/or tickling between the Child and Father.
b. As for contact, touching or patting between Father and Child around the lower abdomen area of the Child, the Child first described it on a teddy bear named Emma, given to her by her Father, and then later described it on herself with her counsel present.
c. The Child and the Father were always clothed. No skin to skin contact occurred. The Child never reported such contact with the Father when the Child was alone with the Father on a cross country road trip spanning days.
d. Prior to Department involvement, the Mother and Father provided food, shelter, care, tutoring, therapy and martial arts training for the Child.
e. After hearing and seeing the described contact by the Child on two different occasions, and considering all the other evidence presented, including family photos and videos that a therapist concludes is evidence of grooming the Child by the Father for sexual purposes, which the Court does not deem credible, the Court cannot conclude by clear and convincing evidence that said contact is egregious, sexual battery, sexual abuse or chronic abuse.

In addition, the trial court found that: "Both parents testified that the Father and Child regularly engage in horseplay, wrestling and tickling, which the Mother would discourage by telling the Father and Child to 'stop roughhousing', or words to that effect." Further, the trial court found that "[t]he Mother's testimony, which is corroborated by the Child's therapist, Ms. Pena, a licensed clinical social worker, among others, establishes that the Mother was completely surprised by and unaware of the allegations set forth in the Petition." The trial court concluded:

At most, and consistent with Dr. Klein's testimony, a licensed psychologist, the evidence and testimony demonstrate, by the preponderance of the evidence, that there was uncomfortable and/or inappropriate contact, touching or patting between the Father and Child, but not in a sexual way. Moreover, no credible testimony was presented indicating that the Father touched the child in or on her vagina or under her clothes , or engaged in egregious conduct toward the child as defined in section 39.806(f) and/or (g). Likewise, there was no credible testimony indicating that the Mother was aware of and/or failed to protect the Child from any conduct alleged in the Petition.

(Emphasis added). In so doing, the trial court held that "[t]he grounds for termination of parental rights set forth in the Petition have not been established by clear and convincing evidence as to both parents" and granted the mother's motion for judgment of dismissal and denied DCF and the GAL's petition to terminate the parental rights of the father.

The trial court, however, further held that "[g]rounds for dependency [ ] have been established by a preponderance of the evidence as to the Father only." As such, the trial court found that "[t]he Child is dependent within the meaning and intent of Chapter 39, including sections 39.01(2), 39.01(15)(a), and/or 39.01(15)(f), such that the Child and Father are in need of services to address their interactions, communications and any resulting trauma, which left untreated would place the Child at risk of harm."

Lastly, the trial court determined that "[i]t is in the best interest of the Child, and the Child's expressed intent, to be returned to her home to reside with her Mother upon the Court's imposed condition that Father not reside in nor visit said home when the Child is present until further Order of the Court."

II. JURISDICTION

This is an appeal of a final order subject to review pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A).

III. STANDARD OF REVIEW

"Appellate review of a termination of parental rights case is 'highly deferential.' That is, a 'finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support.' " C.G. v. Dep't of Children & Families, 67 So.3d 1141, 1143 (Fla. 3d DCA 2011) (internal citations omitted) (quoting D.P. v. Dep't of Children & Family Servs., 930 So.2d 798, 801 (Fla. 3d DCA 2006) ). "With this in mind, the standard of review is whether the trial court's judgment is supported by substantial and competent evidence." Id. (citation omitted).

We recognize it is not the role of an appellate court to substitute its judgment for that of a trial court. G.C. v. Dep't of Children & Families, 791 So.2d 17, 21 (Fla. 5th DCA 2001). "Rather, it is [the appellate court's] responsibility to search the record for 'competent, substantial evidence' which supports the trial court's findings and conclusions. Nowhere is this responsibility greater than in a dependency case, where the testimony is so often confusing and conflicting." Id. (quotation marks in original). However, we review issues involving the interpretation of statutes de novo . See B.Y. v. Dep't of Children & Families, 887 So.2d 1253, 1255 (Fla. 2004) ; Dep't of Children & Family Servs. v. P.S., 932 So.2d 1195, 1198 (Fla. 1st DCA 2006) ("We have de novo review of issues involving the interpretation of statutes.").

IV. ANALYSIS

In order to terminate parental rights, the Department must prove: (1) at least one of the statutory grounds for termination; (2) termination is in the child's manifest best interest; and (3) termination is the least restrictive means of protecting the child from harm. See C.T. v. Dep't of Children & Families, 22 So.3d 852, 854 (Fla. 3d DCA 2009) (citations omitted). "To justify termination of parental rights, [DCF] bears the burden of proof to present clear and convincing evidence that a parent has abused, neglected or abandoned a child, or that the child is at substantial risk of future abuse, neglect, or abandonment." T.V. v. Dep't of Children & Family Servs., 905 So.2d 945, 946 (Fla. 3d DCA 2005). Here, the only statutory ground DCF plead in its petition for termination of parental rights was sexual abuse. Thus, we limit our review solely to whether the trial court's findings are supported by competent substantial evidence and whether the trial court correctly applied the law to those findings.

A. Sexual Abuse under Chapter 39 of the Florida Statutes

Chapter 39 of the Florida Statutes entitled, "Proceedings Relating to Children," provides the statutory framework for our review. Under Chapter 39, DCF establishes a basis for the termination of parental rights when it proves that:

(f) The parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child or the child's sibling....
....
2. As used in this subsection, the term "egregious conduct" means abuse, abandonment, neglect, or any conduct that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.
(g) The parent or parents have subjected the child or another child to aggravated child abuse as defined in s. 827.03, sexual battery or sexual abuse as defined in s. 39.01, or chronic abuse.

§ 39.806(1)(f)-(g), Fla. Stat. (2017). In Florida, the definition of "sexual abuse" for purposes of establishing a basis for termination of parental rights is drawn from the definitions found in section 39.01. More specifically, the definition of "abuse" found therein encompasses "sexual abuse." § 39.01(2), Fla. Stat. (2017) (" 'Abuse' means any willful act or threatened act that results in any physical, mental, or sexual abuse, injury, or harm that causes or it is likely to cause the child's physical, mental, or emotional health to be significantly impaired.").

Similarly, under section 39.01(71), " '[s]exual abuse of a child' for purposes of finding a child to be dependent" includes "[t]he intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator ...." § 39.01(71)(d), Fla. Stat. (2017). Further, this Court, and others, have held that "[a] parent's sexual abuse of a child is 'egregious conduct.' " I.D. v. Dep't of Children & Families., 13 So.3d 1117, 1120 (Fla. 3d DCA 2009) (first citing N.R.R. v. Dep't of Children & Families, 959 So.2d 359, 359-60 (Fla. 3d DCA 2007) (finding there was substantial competent evidence supporting termination of parental rights based on the parent's "egregious abuse" - specifically, sexual abuse of the child's half-sibling - and incarceration for a substantial portion of the child's majority); and then citing Dep't of Children & Families. v. B.B., 824 So.2d 1000, 1007 (Fla. 5th DCA 2002) (finding sexual abuse of siblings sufficient to terminate father's parental rights to other children for "egregious conduct") ).

Finally, "sexual abuse does not require penetration and can occur without any physical manifestations." Id.; see also G.C., 791 So.2d at 19-20 (holding that there was competent, substantial evidence supporting the trial court's finding that the father sexually abused the child by touching her over her clothing in her vagina area, notwithstanding that there was no physical evidence of sexual abuse); A.B. v. Fla. Dep't of Children & Family Servs., 901 So.2d 324, 325-26 (Fla. 3d DCA 2005) (affirming the trial court's adjudication of dependency as to the mother for failing to protect the child from her stepfather's physical and sexual abuse although there was no penetration alleged).

B. Application of the Statutory Definition of Sexual Abuse to the Facts

While great deference is given to a trial court's findings in a termination of parental rights case, no deference is owed if the findings were induced by an erroneous view of the law. See, e.g. Holland v. Gross, 89 So.2d 255, 258 (Fla. 1956) (holding that decision is clearly erroneous where a trial court has misapplied the law to the established facts); In re Estate of Donner, 364 So.2d 742, 748 (Fla. 3d DCA 1978) ("We are not however bound by the trial court's legal conclusions where those conclusions conflict with established law." (citing Holland, 89 So.2d 255 ) ); Fito v. Attorneys' Title Ins. Fund, Inc., 83 So.3d 755, 757-58 (Fla. 3d DCA 2011) (citation omitted) (applying a de novo standard to the trial court's conclusions of law and application of law to the facts); Oceanic Int'l Corp. v. Lantana Boatyard, 402 So.2d 507, 511 (Fla. 4th DCA 1981) (An appellate court is not "bound by the trial court's legal conclusions where those conclusions conflict with established law." (citing Holland, 89 So.2d 255 ) ).

Here, the trial court found that any touching around the child's breast area was incidental, resulting from horseplay, wrestling or tickling between the child and the father. Further, as for the contact, touching or patting between the father and the child around the child's lower abdomen area, the trial court found that they "were always clothed" and "[n]o skin to skin contact occurred." Moreover, the trial court found "no credible testimony was presented indicating that the [f]ather touched the child in or on her vagina or under her clothes, or engaged in egregious conduct." These findings demonstrate the trial court's misapplication of the law. The definition of sexual abuse expressly includes the touching of clothing covering the child's genitals, genital area, or groin. See § 39.01(71)(d). Testimony about whether the touching was over or under the child's clothing was therefore irrelevant.

The trial court's misapplication of the law is further demonstrated by its finding that "[a]t most ... there was uncomfortable and/or inappropriate contact, touching or patting between the Father and Child, but not in a sexual way." Whether the touching was done "in a sexual way" was, likewise, irrelevant, as neither section 39.806(1)(g) nor section 39.01(71) require such proof. Rather, the intentional touching of a child's genitals, genital area, or groin constitutes sexual abuse. Whether the person doing the touching intended the touching to be sexual, playful, mean-spirited, or otherwise, is not contemplated by the statute.

The trial court's questions to the child about whether she meant there was touching of her "butt" when she said "vagina" were similarly irrelevant and, again, demonstrate the trial court's misapplication of the law, as the definition of sexual abuse includes touching of the buttocks. See § 39.01(71)(d). Further, the trial court's questions posed to the child about where exactly on the vagina the touching occurred, including whether it was at the opening of the vagina and where her pubic hair was, were irrelevant given the statutory definition of sexual abuse. The touching of the child's pubic hair, above the actual opening of the vagina, falls within the definition of sexual abuse that includes touching the genitals, genital area, or groin. See § 39.01(71)(d). The trial court's additional questioning of the child to ascertain where her pubic hair started and whether her underwear extended past her belly button was similarly irrelevant.

The child consistently testified that the father touched her vagina above the pubic hair and over her underwear. However, the trial court failed to recognize that pubic hair is undoubtedly located in the genital area and the touching of pubic hair necessarily constitutes touching the genital area. Instead, the trial court appears to have construed the child's pubic hair on top of her vagina not to be part of her vagina, based on its repeated questioning of the child as to whether her pubic hair was by her vaginal opening.

"Neither physical evidence nor expert testimony is required to establish sexual abuse or egregious conduct by clear and convincing evidence." I.D., 13 So.3d at 1120 (affirming the trial court's termination of parental rights on the basis of egregious conduct under subsection (1)(f), and sexual abuse under subsection (1)(g) based primarily on evidence introduced through the child, who understood the difference between the truth and a lie and whose credible testimony was unrebutted and consistent). Moreover, as previously stated above, "sexual abuse does not require penetration and can occur without any physical manifestations." Id.

Further, despite the testimony of six witnesses that the child reported that the father had been touching her breasts and genital area, the trial court relied only on the testimony of Dr. Sandra Klein in finding that "[a]t most ... the evidence and testimony demonstrate, by the preponderance of the evidence, that there was uncomfortable and/or inappropriate contact, touching or patting between the Father and Child, but not in a sexual way." However, even Dr. Klein's testimony does not support this finding. Rather, Dr. Klein testified that her role was to assess only the child's ability to testify and any potential resulting harm. Dr. Klein testified that she did not discuss the specifics of the allegations with the child and did not pay attention to whether the allegations were true or verified. And, in that regard, Dr. Klein evaluated the child for only one hour on only one occasion.

Thus, the trial court erred in finding that it "cannot conclude by clear and convincing evidence that said contact is egregious, sexual battery, sexual abuse or chronic abuse" because the testimony of the witness on which the trial court relied does not support this finding. See Dep't of Children & Families v. C.F., 788 So.2d 988, 988 (Fla. 3d DCA 1998) (reversing the denial of a termination petition where "the evidence was overwhelmingly in favor of termination[ ] and the trial court's contrary decision was an abuse of discretion.").

C. The Trial Court's Findings are Irreconcilable

Finally, the trial court's finding that DCF failed to prove sexual abuse under sections 39.806(1)(f)-(g) is irreconcilable with its finding of dependency under Chapter 39, including sections 39.01(2), 39.01(15)(a), and 39.01(15)(f). The definition of " '[s]exual abuse of a child' for purposes of finding a child to be dependent" includes:

(d) The intentional touching of the genitals or intimate parts, including the breasts, genital area, groin, inner thighs, and buttocks, or the clothing covering them, of either the child or the perpetrator, except that this does not include:
1. Any act which may reasonably be construed to be a normal caregiver responsibility, any interaction with, or affection for a child; or
2. Any act intended for a valid medical purpose.

§ 39.01(71)(d). Further, section 39.01(15) states that a " '[c]hild who is found to be dependent' means a child who, pursuant to this chapter, is found by the court: (a) [t]o have been abandoned, abused, or neglected by the child's parent or parents or legal custodians; ... [or] (f) [t]o be a substantial risk of imminent abuse, abandonment, or neglect by the parent or legal custodians; ...." § 39.01(15)(a), (f), Fla. Stat. (2017).

Here, the trial court found the child was dependent as to the father under section 39.01"such that the [c]hild and [the] [f]ather are in need of services to address their interactions, communications and any resulting trauma, which left untreated would place the [c]hild at risk of harm." As such, the trial court ordered the child be returned to the mother on the condition that the father not reside in or visit the home when the child is present. Yet, as to the termination of parental rights, the trial court found that any touching by the father around the child's breast area was incidental and that no credible testimony indicated that the father touched the child on her vagina or engaged in egregious conduct. Rather, the trial court determined that at most, there was uncomfortable or inappropriate contact, touching or patting between the father and child, but not in a sexual way. However, for any contact, touching, or patting to have been uncomfortable or inappropriate under these circumstances, such contact, touching or patting necessarily had to have been because of its sexual nature. Touching, patting or coming into contact with a child's genital area in a way that is undisputedly uncomfortable and/or inappropriate is sexual abuse irrespective of whether the person doing the touching intended it to be in a sexual way.

Accordingly, the trial court's finding that there was no egregious conduct under section 39.806(1)(f) or sexual abuse under section 39.806(1)(g), but that there was abuse under section 39.01, is irreconcilable. See J.S. v. Florida Dep't of Children & Families, 18 So.3d 1170, 1177 (Fla. 1st DCA 2009) (reversing the trial court's denial of a petition for termination of parental rights where the court's findings that the father was in substantial compliance with the case plan, but the mother was not, based on the hazardous conditions of the home they lived in together, were irreconcilable).

D. The Manifest Best Interests of the Child

Reversal of the denial of a termination petition is warranted when the denial is not in the child's best interest. See C.F., 788 So.2d at 988 ; Fla. Dep't of Children & Family Servs. v. A.Q., 937 So.2d 1156, 1158 (Fla. 3d DCA 2006). Section 39.810, Florida Statutes (2017), sets out eleven factors for the trial court to consider in determining whether termination of parental rights is in the manifest best interest of the child. Specifically,

[f]or the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to :
(1) Any suitable permanent custody arrangement with a relative of the child. However, the availability of a nonadoptive placement with a relative may not receive greater consideration than any other factor weighing on the manifest best interest of the child and may not be considered as a factor weighing against termination of parental rights. If a child has been in a stable or preadoptive placement for not less than 6 months, the availability of a different placement, including a placement with a relative, may not be considered as a ground to deny the termination of parental rights.
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical care or other remedial care recognized and permitted under state law instead of medical care, and other material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child's safety, well-being, and physical, mental, and emotional health will not be endangered upon the child's return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child's parent or parents, siblings, and other relatives, and the degree of harm to the child that would arise from the termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term foster care upon termination of parental rights, due to emotional or behavioral problems or any special needs of the child.
(7) The child's ability to form a significant relationship with a parental substitute and the likelihood that the child will enter into a more stable and permanent family relationship as a result of permanent termination of parental rights and duties.
(8) The length of time that the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
(9) The depth of the relationship existing between the child and the present custodian.
(10) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference.
(11) The recommendations for the child provided by the child's guardian ad litem or legal representative.

§ 39.810(1) - (11) (emphasis added). In finding that it is in the best interest of the child and that the child's expressed intent was to be returned to her home to reside with the mother, the trial court overlooked that the child wished to live with the mother "later." This was, according to the child's testimony, because the parents were living together and the child conditioned her desire to return home upon the father being honest about the touching and receiving therapy to control himself and stop touching her. See § 39.810(10). However, "the reasonable preferences and wishes of the child" are not dispositive. See Dep't of Children & Family Servs. v. M.J., 889 So.2d 986, 988 (Fla. 4th DCA 2004) (reversing the denial of termination despite the children's testimony that they loved the parents and were against termination, where the trial court found that the father's sexual deviancy placed them at extreme risk and the mother refused to protect them from him).

While the record clearly supports the trial court's finding that the parents can provide for the child's material needs, including food, shelter, tutoring, therapy and martial arts training, the language of the statute is mandatory. Section 39.810 states that "the court shall consider and evaluate all relevant factors, including, but not limited to" the enumerated eleven factors. § 39.810 (emphasis added). Yet, the trial court did not. As this Court explained in K.R.L. v. Dep't of Children & Family Services:

Full and accurate fact finding is essential not only on the question whether DCF has authority to terminate parental rights but also on the question whether it is in the child's best interests to do so. See § 39.809(5), Fla. Stat. (2009) ; In re L.H. , 647 So.2d 311, 311-12 (Fla. 5th DCA 1994) ; see also In re K.M. , 788 So.2d 306, 306 (Fla. 2d DCA 2001) (noting that when at least one of the grounds for termination of parental rights has been established, the "issue then is whether the DCF proved by clear and convincing evidence the additional requirement that termination is in the manifest best interests of the children"); L.J.R. v. T.T. , 739 So.2d 1283, 1287 (Fla. 1st DCA 1999) (stating that in termination of parental rights proceedings, even when statutory requirements are proven, a trial court still must determine whether termination of parental rights is in the child's manifest best interests).

83 So.3d 936, 939 (Fla. 3d DCA 2012). Here, the trial court neither considered all of the eleven statutory factors required for a determination of the manifest best interests of the child nor made factual findings with respect thereto.

E. The Least Restrictive Means Test

Although parental rights are fundamental, they are not absolute, as they are subject to the overriding principle that the best interests of the children must prevail. See Padgett v. Dep't of Health & Rehab. Servs., 577 So.2d 565, 570-71 (Fla. 1991). As stated by the Florida Supreme Court:

While the parent's interest in maintaining parental ties is essential, the child's entitlement to an environment free of physical and emotional violence at the hands of his or her most trusted caretaker is more so. The state has a compelling interest in protecting all its citizens - especially its youth - against the clear threat of abuse, neglect and death.

Id. at 570. Furthermore,

to protect the rights of the parents and children, the state bears the burden of showing "by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child." The state must also establish that the termination of parental rights "is the least restrictive means of protecting the child from serious harm."

T.P. v. Dep't of Children & Family Servs., 935 So.2d 621, 624 (Fla. 3d DCA 2006) (quoting Padgett, 577 So.2d at 571 ). Thus, the "least restrictive means" test "requires that measures short of termination should be utilized if such measures can permit the safe re-establishment of the parent-child bond." Dep't of Children & Families v. B.B., 824 So.2d 1000, 1009 (Fla. 5th DCA 2002) ; see also D.M. v. Dep't of Children & Families, 79 So.3d 136, 139-40 (Fla. 3d DCA 2012) ("DCF must proceed in a narrowly tailored manner and must prove that, in addition to the statutory requirements for termination of parental rights, termination is the least restrictive means of protecting the child from serious harm.") (quoting N.S. & D.R. v. Dep't of Children & Families, 36 So.3d 776, 778 (Fla. 3d DCA 2010) ).

However, termination of parental rights without a case plan with a goal of reunification is permitted when based on sections 39.806(1)(f)-(g). See § 39.802(5), Fla. Stat. (2017) ("When a petition for termination of parental rights is filed under s. 39.806(1), ... the department need not offer the parents a case plan with a goal of reunification, but may instead file with the court a case plan with a goal of termination of parental rights ...."); § 39.806(2), Fla. Stat. (2017) ("Reasonable efforts to preserve and reunify families are not required if a court of competent jurisdiction has determined that any of the events described in ... paragraphs (1)(f)-(m) have occurred."); § 39.806(3), Fla. Stat. (2017) ("If a petition for termination of parental rights is filed under subsection (1), .... the department need not offer the parents a case plan having a goal of reunification, but may instead file with the court a case plan having a goal of termination of parental rights ....").

Here, because the trial court found that there was no egregious conduct under section 39.806(1)(f) or sexual abuse under section 39.806(1)(g), it necessarily made no factual findings as to whether termination of parental rights is the least restrictive means of protecting the child from serious harm.

V. CONCLUSION

Because the trial court incorrectly applied the statutes defining sexual abuse and because the trial court's finding that DCF failed to prove sexual abuse under sections 39.806(1)(f)-(g) is irreconcilable with its finding of dependency within the meaning of Chapter 39, including sections 39.01(2), 39.01(15)(a) and 39.01(15)(f), we reverse the adjudication of dependency as to the father and remand for entry of an order finding that the father sexually abused the child. Further, we remand for an evidentiary hearing and for entry of an order, within thirty days, addressing the manifest best interests of the child and including factual findings in accordance with the eleven factors set forth section 39.810 as well as whether the termination of parental rights as to the father is the least restrictive means of protecting the child from serious harm.

Because there is competent substantial evidence to support the trial court's finding that there was no credible testimony that the mother failed to protect the child we affirm, without further elaboration, the dismissal as to the mother.

Affirmed in part; reversed in part; and remanded.

This decision shall take effect immediately, notwithstanding the filing of any post-opinion motions.

      Thereafter, the trial court entered an order granting DCF's motion to modify custody. The trial court placed the child with a different non-relative individual (the "current caregiver"), finding that the child was not believed, nor emotionally supported by the previous caregivers who were inappropriately interfering with the case.

      The emergency petition for writ of certiorari and the amended motion for review were filed in case no.: 3D17-1942. The appeal of the final judgment was filed in case no.: 3D17-2003. This Court consolidated the cases for all appellate purposes. In addition, DCF filed an emergency petition for writ of certiorari and emergency review for stay, requesting this Court to quash a portion of an omnibus order entered by the trial court. Three days later, DCF filed a notice of voluntary dismissal of its emergency petition because the trial court had amended and removed the challenged portions of the omnibus order. The following day, this Court entered an order recognizing the voluntary dismissal and dismissing the emergency petition.

      During the pendency of this appeal, this Court granted DCF's and the GAL's motions to relinquish jurisdiction. Jurisdiction was relinquished to the trial court to hold an evidentiary hearing on newly discovered evidence, to hold a hearing on the child's attorney's motion to withdraw as counsel for the child, and to address the visitation issues with the mother. This Court ordered that the stay shall remain in effect as to contact with the father. Upon relinquishment, the successor trial court entered an order on the hearing regarding newly discovered evidence wherein it concluded that DCF and the GAL failed to meet their burden of establishing, by a preponderance of the evidence, that the new evidence would likely change the result in the event of a new trial. This Court thereafter granted the parents' motion to relinquish jurisdiction to the trial court for an evidentiary hearing on the child's placement and needs.


source: Caselaw Access Project

author: ROBERSON, E.C., Associate Judge.

license: Public Domain

text:
    Jay SIMON, as Personal Representative of the Estate of Robert Simon, Appellant, v. Richard WATERS, Appellee.
    Case No. 5D1-3355
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Eric W. Ludwig, Orlando, of the Law Office of Eric W. Ludwig, for Appellant.
    Christopher R. Turner, of Christopher R. Turner, PLLC, Orlando, for Appellee.
   ROBERSON, E.C., Associate Judge.

Generally, a court cannot award attorney fees unless "expressly provided for by statute, rule, or contract." Hubbel v. Aetna Cas. & Sur. Co. , 758 So.2d 94, 97 (Fla. 2000). It follows, then, that a court cannot use an equitable remedy to indirectly assess attorney fees where it cannot do so directly. Accordingly, we reverse the trial court's imposition of an equitable lien consisting almost entirely of Appellee's attorney fees in unsuccessfully defending the claims below.

This lawsuit involves a dispute as to the ownership of property located in Orlando, Florida (the "Property"). Robert and Henrietta Simon, husband and wife, owned the Property. In 2006, they executed a Special Warranty Deed retaining a life estate for themselves then passing title to their two children, Jay Simon and Janice Simon Waters, as "equal tenants in common."

Henrietta predeceased Robert, who passed away in 2011. Jay Simon was named the Personal Representative of Robert Simon's Estate because Janice Simon Waters passed away in 2009. Her husband, the Appellee, found the Special Warranty Deed in 2010 but did not assert a claim under it after Robert Simon passed away. Appellee ultimately obtained an Order of Summary Administration awarding him Janice Simon Water's interest in the Property through her will and the Special Warranty Deed.

Jay Simon, in his capacity as Personal Representative of the Estate of Robert Simon (the "Estate"), sued to nullify the Special Warranty Deed. The Estate argued, and the trial court agreed, that Henrietta Simon "was incapable of comprehending the nature and effect of the [Special Warranty Deed] as the result of mental infirmity." Because Janice Simon Waters died before her father, Jay Simon was the only living heir when Robert Simon passed away and thus was the sole beneficiary of the Estate.

While vacating the Special Warranty Deed, the trial court found that "the parties [were] entitled to reversion to status quo prior to its execution." Appellee then filed a Motion for Summary Judgment, along with an affidavit, for damages that would return him to the status quo. The motion sought, through an award of attorney fees or an equitable lien, a total of $76,892.73. That amount consisted of $75,094.23 in attorney fees spent in this lawsuit and $1,798.50 in fees for the summary administration proceedings.

The trial court granted the motion and awarded Appellee an equitable lien for $76,892.73 encumbering the Property. The trial court rejected Appellee's claim for an award of attorney fees by correctly noting that "fees cannot be awarded as a matter of equity." In addressing the request for an equitable lien, however, the court found it appropriate based on the " 'general consideration of right and justice as applied to the relations of the parties and the circumstances of their dealings in the particular case.' See Jones v. Carpenter , 90 Fla. 407, 106 So. 127, 129 (1925)." The Estate timely appealed.

The facts pertaining to the equitable lien are undisputed. As such, we review the question of law that arises from those undisputed facts de novo . CTX Mortg. Co., LLC v. Advantage Builders of Am., Inc. , 47 So.3d 844, 846 (Fla. 2d DCA 2010) (citing Kirton v. Fields , 997 So.2d 349, 352 (Fla. 2008) ).

The Estate's argument is straightforward and well taken. A court can only award attorney fees when authorized by statute, rule, or contract. Hubbel , 758 So.2d at 97. The trial court cited many of the cases so holding. See, e.g. , Bane v. Bane , 775 So.2d 938, 940 (Fla. 2000) ; City of Miami Beach v. Deutzman , 180 So.3d 245, 246 (Fla. 3d DCA 2015) ; Bauer v. DILIB, Inc. , 16 So.3d 318, 320 (Fla. 4th DCA 2009) ; Attorney's Title Ins. Fund, Inc. v. Landa-Posada , 984 So.2d 641, 643 (Fla. 3d DCA 2008). It is a natural corollary that a court may not utilize general, amorphous notions of equity to circumvent such a well-established rule. Neither Appellee nor this Court's own research has revealed a case approving an equitable lien awarding attorney fees to a non-prevailing party. We decline Appellee's invitation to create another avenue for courts to award attorney fees.

REVERSED and REMANDED.

EVANDER and EISNAUGLE, JJ., concur.

      There are certain extraordinary circumstances, not present here, such as bad faith conduct or civil contempt, that deviate from this general rule as a sanction. See, e.g., Dep't of Child. & Fam. Servs. v. J.B. , 898 So.2d 980, 981 (Fla. 5th DCA 2005) (citing Bitterman v. Bitterman , 714 So.2d 356, 365 (Fla. 1998) ).

      Appellee has not appealed the order vacating the Special Warranty Deed.

      The trial court was referring to a requirement of rescission. See Royal v. Parado , 462 So.2d 849, 855 (Fla. 1st DCA 1985).


author: PER CURIAM.

text:
    BANKERS LENDING COMPANY, LLC, Appellant, v. Angela JACOBSON a/k/a Angela J. Jacobson a/k/a Angela Cook, Royals Portfolio, LLC, Dun Mar Corporation a/k/a Dunmar Corporation, Dunbar Estates Homeowners Association, Inc., Appellees.
    Case No. 5D17-542
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 10, 2018
    Victor Kline, Amanda L. Chapman and Edmund O. Loos, III, of Greenspoon Marder, PA, Orlando, for Appellant.
    Jamie Billotte Moses, Suzanne E. Gilbert and Edward M. Fitzgerald, of Holland & Knight LLP, Orlando, for Appellee, Royals Portfolio, LLC.
    No Appearance for other Appellees.
   PER CURIAM.

Bankers Lending Company, LLC appeals the summary final judgment of foreclosure entered in favor of Pennymac Holdings, LLC, owner and holder of the first mortgage, and the underlying order allowing Bankers, a junior mortgagee on a portion of the property, to redeem the mortgage as to the entire property, but prohibiting it from foreclosing on the remainder of the property owned by Royals Portfolio, LLC. Bankers argues the trial court erred when it limited the scope of its equitable subrogation claim. We agree and reverse.

The facts are undisputed. Pennymac was the holder of a promissory note and mortgage executed by Angela Jacobson and her deceased husband in the original amount of $505,085 for the purchase of approximately ten contiguous acres in Seminole County, Florida. The Jacobsons defaulted on the loan in 2010.

Sometime thereafter, Royals domesticated a Georgia state court judgment against the Jacobsons. When the final judgment remained unpaid, Royals levied on the mortgaged property. Consequently, the mortgaged property was partitioned. Jacobson maintained title to half an acre as her homestead, and Royals took title to the remaining nine-and-a-half acres, subject to the Pennymac mortgage, through the levy and Sheriff's sale. Bankers obtained its lien on Jacobson's half-acre parcel when she executed and delivered a note and mortgage to Bankers in exchange for $25,000. Jacobson remained liable on the Pennymac note for the entire mortgaged property, including the nine-and-a-half acres titled to Royals.

Ultimately, Pennymac filed a foreclosure complaint as to the entire ten acres. Bankers sought to exercise its right of redemption under section 45.0315, Florida Statutes (2015).

Royals objected to Bankers' motion to redeem and asked the trial court to determine the parties' redemption rights. Royals argued that Bankers should not be allowed to manipulate the right of redemption to expand its claim to Royals' parcel. According to Royals, Bankers' right of redemption and subsequent equitable subrogation should be limited solely to the half-acre parcel.

Bankers acknowledged that equitable subrogation through redemption is not permitted if it results in an injustice, but argued that there was no injustice in this case. Bankers explained that Royals is a defendant in Pennymac's foreclosure action; thus, its nine-and-a-half acres would be foreclosed by Pennymac or Bankers no matter which plaintiff pursued it. In other words, Royals' position in the action does not change and it is not prejudiced if Bankers is subrogated to the rights of Pennymac. Bankers noted that Royals also had the option to redeem.

Royals contended that Bankers would be getting a windfall if it is permitted to get its nine-and-a-half acres because Bankers would be made whole by the half-acre parcel. Royals underscores that Bankers did not dispute any of the facts related to the underwriting of Bankers' loan, including that the purpose of the loan was to create an opportunity to reassemble and acquire the entire ten acres through redemption and foreclosure.

The trial court ultimately concluded, without making any factual findings, that "[i]t would be inequitable to allow Bankers to be equitably subrogated to the extent it would permit foreclosure of the Royals Parcel." Bankers was permitted to redeem the Pennymac mortgage under section 45.0315 ; however, the trial court ruled that Bankers "shall not be permitted to pursue a foreclosure claim against the Royals Parcel."

Thereafter, Bankers redeemed the Pennymac mortgage and moved for final judgment of foreclosure. The trial court's summary final judgment made a finding that Bankers held a lien superior to all defendants on the mortgaged property as limited by the trial court's redemption order.

Section 45.0315, Florida Statutes, provides:

At any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor or the holder of any subordinate interest may cure the mortgagor's indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure, or if no judgment, order, or decree of foreclosure has been rendered, by tendering the performance due under the security agreement, including any amounts due because of the exercise of a right to accelerate, plus the reasonable expenses of proceeding to foreclosure incurred to the time of tender, including reasonable attorney's fees of the creditor. Otherwise, there is no right of redemption.

"The right to redeem is an incident to every mortgage and belongs to the mortgagor and those claiming under him." Quinn Plumbing Co. v. New Miami Shores Corp., 100 Fla. 413, 129 So. 690, 692 (1930). "As against a senior mortgagee, the only absolute right of a junior mortgagee is the right to redeem from the senior mortgage[e]." Id. (citing Parker v. Child, 25 N.J. Eq. 41, 43-44 (Ch. 1874) ). "When the ['right of redemption'] is used with reference to a junior mortgagee, ... it refers to his right to satisfy a prior mortgage by payment of the debt it secures and thereby become equitably subrogated to all rights of the prior mortgagee." Marina Funding Grp., Inc. v. Peninsula Prop. Holdings, Inc., 950 So.2d 428, 430 (Fla. 4th DCA 2007) (quoting Engels v. Valdesuso, 497 So.2d 698, 700 n.1 (Fla. 3d DCA 1986) ).

Generally, a junior mortgagee of only a part of mortgaged premises, must pay the whole amount of the mortgage debt in order to redeem. Quinn Plumbing, 129 So. at 693. The junior mortgagee "cannot compel a redemption pro tanto, for the reason that the first mortgagee has not agreed to separate his debt and security into parts." Id. Instead, the first mortgagee is entitled to payment of the entire first mortgage. Id. Thus, the junior mortgagee "must pay the entire mortgage debt in order to redeem the premises in which he is interested, [and] when there are no intervening rights, he thereby becomes equitably subrogated to the original rights of the first mortgagee ...." Id. at 694.

Equitable subrogation is generally appropriate if the following five elements are met:

(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.

Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 646 (Fla. 1999) (citing Fowler v. Lee, 106 Fla. 712, 143 So. 613, 614 (1932) ; E. Nat'l Bank v. Glendale Fed. Sav. & Loan Ass'n, 508 So.2d 1323, 1324-25 (Fla. 3d DCA 1987) ). Where a party has discharged the debt of the original creditor, that party "stands in the shoes" of the creditor whose claim has been discharged and he is entitled to the "right and priorities of the original creditor." Id. (citing E. Nat'l Bank, 508 So.2d at 1324 ); see also Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258, 262 (Fla. 4th DCA 2010) ("[T]he doctrine of equitable subrogation ... is designed to apply where the claimant satisfied an obligation of another and then stands in the shoes of the satisfied creditor." (citing Radison Props., Inc. v. Flamingo Groves, Inc., 767 So.2d 587, 591 (Fla. 4th DCA 2000) ) ). For example, "a refinancing lender is equitably subrogated to the priority of the first mortgage even where it has actual knowledge of an intervening lien." Tribeca Lending Corp., 42 So.3d at 262 (citing Suntrust Bank v. Riverside Nat'l Bank of Fla., 792 So.2d 1222, 1227 n.3 (Fla. 4th DCA 2001) ).

Royals does not contest that Bankers met the first four requirements for equitable subrogation. It argues that equitable subrogation is not allowed in the instant case because subrogation would work an injustice to it because Bankers came to the table with unclean hands. Royals claims that Bankers acquired its interest in the Jacobson's half-acre parcel intending to reunite all ten acres once Pennymac foreclosed. While this may be true, "a party asserting unclean hands 'must prove that he was injured in order for the unclean hands doctrine to apply.' " See Tribeca Lending Corp., 42 So.3d at 262 (quoting McCollem v. Chidnese, 832 So.2d 194, 196 (Fla. 4th DCA 2002) ). This Royals failed to do. Even if it had, redemption and equitable subrogation to all rights of the Pennymac's mortgage would not have put Royals in a worse position. Royals took title to the nine-and-a-half-acre parcel subject to Pennymac's mortgage. And like Bankers, Royals had the right to redeem, but chose not to exercise that option.

There is simply no record evidence to establish that inequity would result to Royals if Bankers, rather than Pennymac, had been permitted to foreclose on Pennymac's mortgage. Instead, the redemption order and final judgment effectively negated Bankers' right of redemption because Bankers' only option was to pay off the final judgment amount of $354,802.65, plus post-judgment interest, in order to prevent foreclosure on the half-acre parcel. Royals' position never changed because the property was going to be foreclosed upon by either Pennymac or Bankers regardless.

We conclude Bankers is legally entitled to equitable subrogation as to the entire ten acres. No injustice befalls to Royals. Royals took title to the property subject to Pennymac's mortgage and would be unjustly enriched if Bankers was forced to pay the entire amount set forth in the final judgment in order to assert its right to redeem, while Royals paid nothing and was awarded title to the nine-and-a-half acres free and clear.

Therefore, we reverse the final judgment of foreclosure and underlying order on Bankers' motion to redeem to the extent that they prohibit Bankers from foreclosing on the entire ten acres.

REVERSED.

SAWAYA, BERGER and WALLIS, JJ., concur.

      Citibank, N.A., filed the initial foreclosure complaint, but Pennymac was substituted as plaintiff as assignee of Citibank.

      Pennymac later added Bankers as a defendant.


author: BADALAMENTI, Judge.

text:
    Anthony V. DISTEFANO, Appellant, v. Andrea L. DISTEFANO, Appellee.
    Case No. 2D17-967
    District Court of Appeal of Florida, Second District.
    Opinion filed August 15, 2018
    Paul J. Phipps of the Law Office of Amber Boles, P.A., Tampa (withdrew after briefing); Alexis Fields of Kopelowitz, Ostrow, Ferguson, Weiselberg, & Gilbert, Ft. Lauderdale (substituted as counsel of record), for Appellant.
    Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellee.
   BADALAMENTI, Judge.

Anthony Distefano (former husband) seeks review of a final judgment dissolving his marriage to Andrea Distefano (former wife) entered after a bench trial. After careful review, we reverse the final judgment to the extent it classifies the family home and a Toyota Camry purchased during the marriage as the former wife's nonmarital property.

Approximately one month after the couple married, the former wife sold a home she had purchased prior to the marriage (the Hartnett home). The $62,232.23 profit the former wife received from the sale of the Hartnett home was deposited into personal checking and savings accounts she, as sole owner, held at Suncoast Federal Credit Union. The former wife testified that she used her Suncoast personal checking and savings accounts both before and during her marriage to the former husband. She noted, "I've always, I mean, I've always written bills from, from these accounts." She explained that she had "written bills," like the mortgage, car loans, and insurance for herself and the former husband, from the Suncoast personal bank accounts. She further testified that paychecks she earned during the marriage were deposited into her personal Suncoast checking account. Approximately five months after the couple married, the former wife utilized funds from her Suncoast checking and savings accounts to make a down payment on what would become the home where she, the former husband, and their infant child would reside (the Clendenning home). She explained that the Clendenning home, which was titled in her name only and secured by a mortgage also taken out by her, was not intended to be a gift to the former husband.

Also during the marriage, the former wife purchased a 2014 Toyota Camry. To partially fund that purchase, the former wife both traded in a vehicle that she owned prior to the marriage and used funds from the Suncoast checking account. She secured a car loan for the difference owed for that purchase.

In its final judgment, the trial court classified the Clendenning home as the former wife's nonmarital asset because a portion of the funds with which the home was purchased could be traced to nonmarital property, namely, the proceeds from the sale of the Hartnett home. Similarly, the trial court classified the Toyota Camry as nonmarital property because a portion of the funds used to purchase it could be traced to proceeds from the trade-in value of the former wife's premarital vehicle. As will be explained, the trial court's classification of both the Clendenning home and the Toyota Camry as nonmarital property was error.

"We review a trial court's characterization of an asset as marital or nonmarital de novo and any factual findings necessary to make this legal conclusion for competent, substantial evidence." Dravis v. Dravis, 170 So.3d 849, 852 (Fla. 2d DCA 2015) (citing Tradler v. Tradler, 100 So.3d 735, 738 (Fla. 2d DCA 2012) ). In section 61.075, Florida Statutes (2015), "[t]he legislature has set forth a statutory scheme to guide the trial court's equitable distribution of assets upon dissolution of a marriage." Nelson v. Nelson, 206 So.3d 818, 819 (Fla. 2d DCA 2016). Under Florida's equitable distribution statute, marital assets include "[a]ssets acquired ... during the marriage, individually by either spouse or jointly by them." § 61.075(6)(a)(1)(a). Nonmarital assets, which are not subject to equitable distribution, include "[a]ssets acquired ... by either party prior to the marriage, and assets acquired ... in exchange for such assets ...." § 61.075(6)(b)(1).

As an initial matter, the trial court properly classified the former wife's personal Suncoast checking and savings accounts as marital assets. This is because, although titled only in the former wife's name, it is undisputed that the former wife commingled funds she acquired prior to the marriage with funds she acquired during the marriage in her Suncoast checking and savings accounts. See Pfrengle v. Pfrengle, 976 So.2d 1134, 1136 (Fla. 2d DCA 2008).

With this in mind, we now explain why we agree with the former husband's contention on appeal that the trial court erred by classifying the Clendenning home as a nonmarital asset. First, it is undisputed that the Clendenning home was acquired during the marriage individually by the former wife. It thus falls squarely within the meaning of marital assets as set forth by the plain and ordinary language of the equitable distribution statute. See § 61.075(6)(a)(1)(a) (setting forth that marital assets include "[a]ssets acquired ... during the marriage, individually by either spouse or jointly by them") (emphasis added). Second, it is undisputed from the record that the former wife utilized marital funds from her personal Suncoast checking and savings accounts to place a down payment on the home, to make mortgage payments for that home, to make car payments for both herself and her former husband, and to cover other expenses incurred during their marriage. Once the former wife commingled the sale proceeds from the Hartnett home with the paychecks she earned during the marriage into her personal Suncoast accounts, all the funds in those accounts became marital assets. See Pfrengle, 976 So.2d at 1136 ; see also Dravis, 170 So.3d at 852 ("Nonmarital assets may lose their nonmarital character and become marital assets where, as here, they have been commingled with marital assets." (citing Abdnour v. Abdnour, 19 So.3d 357, 364 (Fla. 2d DCA 2009) ) );

Steiner v. Steiner, 746 So.2d 1149, 1151 (Fla. 2d DCA 1999) ("Once the funds were commingled and used for joint expenses, they lost their separate character and became untraceable."). This, in turn, made the Clendenning home a marital asset subject to equitable distribution pursuant to section 61.075(1).

In Pfrengle, we reversed the trial court's classification of several real properties acquired by the former husband during the marriage as nonmarital property. 976 So.2d at 1136. The trial court reasoned that because the former husband made down payments on new properties utilizing the profits he received from the sale of properties he owned prior to entering the marriage, the new properties were not marital property. Id. On appeal, we rejected the former husband's argument that because the sum total of the properties he purchased was less than the aggregate profits he received from the sale of his premarital properties, they should be classified as nonmarital property. We reasoned that although the former husband maintained separate accounts through which he purchased the properties, it was undisputed that he transferred money to and from all of the accounts, including his personal checking account, where he had deposited sales commissions he earned during the marriage. Id. In Pfrengle, we expressed the importance of maintaining nonmarital and marital assets separately, especially money held in bank accounts. Id. ("Money is fungible, and once commingled it loses its separate character." (citing Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000) ) ).

We explained that once the former husband commingled both money from the sale of his premarital properties with commissions he earned as a sales representative during the marriage in his personal checking account, it made all the money held in the personal checking account a marital asset. Id. And because the down payments for the properties purchased during the marriage were made, in part, from the former husband's personal checking account containing marital assets, those properties also became marital assets. Id.

Here, like the former husband in Pfrengle, the former wife owned real estate prior to entering the marriage, sold that real estate during the marriage, deposited the profit of that sale into her personal bank accounts, and then utilized that profit to make a down payment on new real estate. Also like the former husband in Pfrengle, the former wife's employer deposited the income she earned from working during the marriage into the same personal bank account she had deposited the profit from the sale of her home. Based on the former wife's own testimony, her personal Suncoast checking and savings accounts were used to make a down payment on the Clendenning home and to pay expenses incurred by her and the former husband during the marriage, like their car loans, insurance, and mortgage.

As Pfrengle instructs us, the commingling of the money the former wife earned from the sale of the Hartnett home with income she earned during the marriage transformed the very character of what once were her personal bank accounts into marital assets. See id. (holding that the trial court erred in classifying certain properties as nonmarital assets because the properties at issue were purchased during the marriage using funds taken from an account containing commingled marital funds and therefore the properties purchased became marital assets as a matter of law); cf. Steiner, 746 So.2d at 1151 (concluding that because the former husband's bank account became marital when he deposited his earnings into that account, principal mortgage reductions paid out of that account also became marital assets). In sum, the Clendenning home is a marital asset because it was acquired during the marriage with commingled funds from the former wife's personal checking and savings accounts.

Next, the former husband argues that the trial court further erred by classifying the 2014 Toyota Camry as the former wife's nonmarital asset. For the same reasons we reverse the classification of the Clendenning home as a nonmarital asset, we reverse this classification. Again, the Toyota Camry is a marital asset pursuant to section 61.075(6)(a)(1)(a) because it was acquired by the former wife during the marriage, in part, with commingled money held in the former wife's Suncoast checking account containing marital funds. See Dravis, 170 So.3d at 852. Because the former wife used marital funds to purchase the Toyota Camry, it thus follows that the Toyota Camry is also a marital asset subject to equitable distribution. See Pfrengle, 976 So.2d at 1136 ; see also Struble v. Struble, 787 So.2d 48, 50 (Fla. 2d DCA 2001) (concluding that the trial court erred in classifying the former wife's 1995 Toyota as her separate nonmarital asset because the vehicle was purchased by the former wife during the marriage using funds from a bank account that contained marital money). Accordingly, we reverse the final judgment to the extent it classifies the Toyota Camry as the former wife's nonmarital asset.

As a final matter, the former husband argues, and the former wife laudably concedes, that the final judgment contains an internal inconsistency as it relates to the former husband's responsibility to repay in full a $10,000 loan the former wife made to Tonand Enterprises, LLC, an entity the parties formed together prior to their marriage. In section G of the final judgment, the trial court determined that the former husband is responsible for 100% of the debt incurred by Tonand Enterprises, LLC. However, in section H, the trial court determined that the former husband and former wife are each 50% responsible for the $10,000 loan the former wife made to Tonand Enterprises, LLC. The joint equitable distribution worksheet reflects that each party is responsible for paying $5000. Based on the internal inconsistency created by sections G and H of the final judgment, we reverse and remand for the trial court to correct this inconsistency in its judgment. See Suk v. Chang, 189 So.3d 224, 226 (Fla. 2d DCA 2016) ("[D]issolution judgments that contain internal inconsistencies must be reversed so the inconsistencies can be corrected.").

In sum, we reverse the final judgment's classification of the Clendenning home and the Toyota Camry as nonmarital assets. We remand to the trial court with instructions to classify them as marital assets and revise the equitable distribution scheme accordingly. See Pfrengle, 976 So.2d at 1136. In so reversing, we express no opinion as to the trial court's redistribution, in its discretion, of marital assets in light of our opinion. We also reverse and remand to the trial court with instructions to correct the final judgment as it relates to the internal inconsistency created by sections G and H of the final judgment. See Suk, 189 So.3d at 226.

Affirmed in part; reversed in part; remanded with instructions.

LaROSE, C.J., and BLACK, J., Concur.

      It is noteworthy that our conclusion is further supported by the joint equitable worksheet attached to the final judgment here, which classifies the Suncoast checking and savings accounts as marital assets.

      We affirm without comment the remaining issues raised by the former husband in this appeal.


author: SLEET, Judge.

text:
    XIP TECHNOLOGIES, LLC, Appellant, v. ASCEND GLOBAL SERVICES, LLC, Appellee.
    Case No. 2D17-3718
    District Court of Appeal of Florida, Second District.
    Opinion filed August 15, 2018
    John C. Webb of John Webb Legal Group, P.L., Fort Myers, for Appellant.
    Louis D. D'Agostino of Cheffy Passidomo, P.A., Naples; and Richard Cimino of Richard D. Cimino, P.A., Naples, for Appellee.
   SLEET, Judge.

XIP Technologies, LLC, challenges the modified temporary injunction entered against it and in favor of Ascend Global Services, LLC, in Ascend's action against XIP for breach of contract, conversion, civil theft, and injunctive relief. We reverse.

XIP and Ascend entered into a contract by which Ascend would pay XIP a monthly fee in exchange for the use of XIP computer software that enabled Ascend to accept credit card payments from its customers. Pursuant to the contract, XIP's merchant services account captured all credit card purchases by Ascend customers and deposited all monies received into Ascend's account. XIP also tracked all of Ascend's customer information, customer purchases, and sales transactions and provided this client data to Ascend. For its part, Ascend was required to pay XIP a monthly base fee of $10,000, which was due on the fifth day of each month. In the event that Ascend did not pay the fee within five days of the due date, its license and access to the XIP software system would be suspended until all outstanding fees were paid in full. Ascend concedes that it was often late making its monthly fee payments and that it failed to make the $10,000 payments for June, July, and August 2017. However, at some point, XIP stopped communicating with Ascend's vendors, marketing representatives, and customers; stopped accepting credit card payments for products sold to Ascend's customers; and stopped transferring to Ascend funds from the sales of its products and memberships. Ascend alleges that this happened before it first failed to make its monthly fee payment in June 2017.

Ascend filed suit against XIP, asserting claims for breach of contract, conversion, civil theft, and injunctive relief. Ascend alleged that XIP breached the contract by failing to remit monies due, provide customer data, and accept credit card payments from Ascend's customers. Ascend's conversion and civil theft counts alleged that XIP failed to pay approximately $117,000 due to Ascend from XIP's merchant services account. As to the timing of the breaches and who breached first, Ascend's complaint alleged that XIP started withholding customer data as early as February 2017.

After filing its complaint, Ascend filed a verified emergency motion for temporary injunction, seeking to prevent XIP from withholding revenue and customer data and to require XIP to continue providing the services spelled out in the parties' contract. The trial court referred the matter to a general magistrate, who held a hearing for which only Ascend was given notice. Following the ex parte hearing, the magistrate entered a report and recommendation in which it concluded that XIP's withholding of Ascend's net sales revenues and data files "has resulted in irreparable harm to" Ascend. The magistrate recommended injunctive relief, further concluding that Ascend "has no adequate remedy at law," that Ascend "has a likelihood of success on the merits for a permanent injunction," and that the temporary injunction will serve the public interest. The trial court adopted the report and recommendation and entered a temporary injunction. XIP moved to dissolve the temporary injunction, and following a hearing, the trial court entered an order granting in part and denying in part the motion. The court then entered a modified temporary injunction, which incorporated the factual findings and legal conclusions set forth in the magistrate's report and recommendation and provided as follows:

1. Defendant XIP Technologies, LLC, ... [is] enjoined from: (i) withholding any net revenues belonging to plaintiff; (ii) withholding from plaintiff any records and genealogy data regarding sales transactions; (iii) refusing to respond to plaintiff's vendors and sales agents' requests for information and assistance; and (v) cutting plaintiff off from its computer software system and denying plaintiff its license rights under the License & Application Provider Agreement.
2. XIP is directed to forthwith pay over to plaintiff all of its net sales revenues it is now holding in the amount of $117,291.54 (i.e., XIP's receipts on behalf of plaintiff, minus XIP's fees minus a reserve of $37,155.36) and to continue paying over said revenues on a regular basis at least two (2) times weekly, so long as the parties continue to do business together.
3. Plaintiff shall forthwith pay defendant XIP the fees for its services rendered for May 2017, $1,000.00 and $10,000.00 for each of the months of June, July and August, 2017. Thereafter, plaintiff shall pay [d]efendants monthly invoices within thirty (30) days of receipt, so long as the parties do business with each other.
4. XIP is further directed to forthwith provide to plaintiff all of its genealogy data and customer proprietary information gathered since August 16, 2016.
5. XIP is further directed to forthwith reactivate its payment system, business management system and other software applicable to plaintiff's business.
6. A bond in the amount of Eighty Thousand Dollars ($80,000.00) shall be posted by plaintiff in order to make this Order effective.

XIP now appeals, first arguing that the trial court erred in directing it to pay $117,291.54 to Ascend because there was no showing of irreparable harm or a lack of an adequate remedy at law. We agree.

An order on a motion for temporary injunction entered by a trial court must be based on the likelihood of irreparable harm, the unavailability of an adequate remedy at law, the substantial likelihood of success on the merits, and considerations of public interest. Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994). "The trial court has wide discretion to grant or deny a temporary injunction, and the appellate court will not intercede unless the grieving party clearly shows an abuse of discretion." Id.

In the temporary injunction here, the trial court adopted and incorporated the report and recommendation in which the magistrate concluded that the withholding of revenue and client data information caused Ascend irreparable harm for which Ascend has no adequate remedy at law. However, by directing XIP to pay Ascend approximately $117,000 for withheld sales revenues, the trial court demonstrated that Ascend has an adequate remedy at law in the form of money damages. By awarding that sum to Ascend at this stage of the proceedings, the trial court effectively decided the underlying breach of contract claim in Ascend's favor and awarded damages on the claim. This was an abuse of discretion.

XIP's defense below to the breach of contract claim is that Ascend breached first by failing to pay its $10,000 monthly fees and that such alleviated its obligation to perform under the contract. Accordingly, which party is entitled to all or any portion of the withheld revenues is an issue to be determined by the ultimate outcome of the lawsuit. If indeed XIP is determined to be in breach of the parties' contract, Ascend will have an adequate remedy at law in the form of damages to replace the withheld revenues. Because damages are available, there is no irreparable harm. See City of Miami Springs v. Steffen, 423 So.2d 930, 931 (Fla. 3d DCA 1982) (reversing the entry of a temporary injunction that directed defendants to pay plaintiffs $53,491.21 in back wages and concluding there is "no irreparable harm for the purpose of a temporary injunction where the harm can be adequately compensated for by a monetary award"); see also B.G.H. Ins. Syndicate, Inc. v. Pres. Fire & Cas. Co., 549 So.2d 197, 198 (Fla. 3d DCA 1989) (stating that "irreparable harm is not established where the potential loss can be adequately compensated for by a monetary award" and that an "ability to obtain a money judgment ... should a breach of contract be proven, is an adequate remedy at law"). Therefore, the trial court abused its discretion by including in the temporary injunction a direction that XIP pay Ascend $117,291.54 for withheld revenues.

In coming to this conclusion, we acknowledge Ascend's argument that because it is a multilevel business structure in which members are paid commissions from fees paid by other members, XIP's withholding revenue renders it unable to pay its members' commissions, resulting in the loss of members and the ultimate destruction of the business-which would be an irreparable harm with no adequate remedy at law. However, that argument is not supported by the evidence presented below. At the hearing on the motion to dissolve injunction, Ascend's CEO testified that he "had to keep on putting money into [the business] to pay the bills and to supply our members what was due them.... We're still doing [that] today." He responded affirmatively when asked if Ascend was satisfying its financial obligations to its members but added that if he had stopped putting his own money into the business, the company would have stopped operating. As such, the evidence below was that Ascend had obtained finances to continue operating albeit through a personal financial loss to its CEO. Accordingly, it was an abuse of discretion for the trial court to adopt the magistrate's unsupported factual finding that Ascend "has, by the conduct of XIP, been forced to suspend its operations." (Emphasis added.) And any personal funds Ascend's CEO has put into the business to make up for revenues collected but not remitted by XIP is a harm that is personal to him, not Ascend, and one that, like the withheld sales revenues, can be remedied by money damages. We therefore reverse the portion of the modified temporary injunction that directs XIP to pay $117,291.54 to Ascend. Consequently, we also reverse the portion of the temporary injunction that directs Ascend to pay XIP the $10,000 fee it failed to pay in June, July, and August 2017 as some sort of equitable offset for the withheld revenues.

XIP next argues that the trial court abused its discretion in determining that it had caused Ascend irreparable harm for which there is no adequate remedy at law by withholding client data and refusing to continue to process Ascend's customers' credit card payments during the pendency of the underlying lawsuit. We cannot agree, however, because the unrefuted evidence below was that these actions by XIP would result in the total destruction of Ascend's business. This was sufficient to establish irreparable harm without an adequate legal remedy. See Richard, 647 So.2d at 978 (concluding that a showing that "irreparable injury would occur" in the form of "the destruction of [the movant's] business" was a sufficient basis for a temporary injunction (emphasis added) ).

Nevertheless, we must also reverse this portion of the temporary injunction because XIP is correct in arguing that the trial court failed to include the required findings of fact as to Ascend's likelihood of success on the merits and whether the temporary injunction was in the public interest. See Fla. R. Civ. P. 1.610(c) ("Every injunction shall specify the reasons for entry."); Randolph v. Antioch Farms Feed & Grain Corp., 903 So.2d 384, 385 (Fla. 2d DCA 2005) ("An order granting a temporary injunction must strictly comply with [ rule] 1.610. Of primary importance is the trial court's obligation to state sufficient factual findings in support of each element entitling a party to a temporary injunction."). "[T]he trial court's order must contain '[c]lear, definite, and unequivocally sufficient factual findings [to] support each of the four conclusions necessary to justify entry of a preliminary injunction.' " Salazar v. Hometeam Pest Defense, Inc., 230 So.3d 619, 621 (Fla. 2d DCA 2017) (alterations in original) (quoting Liberty Fin. Mortg. Corp. v. Clampitt, 667 So.2d 880, 881 (Fla. 2d DCA 1996) ). This requires "more than parrot[ing] each tine of the four-prong test." City of Jacksonville v. Naegele Outdoor Advert. Co., 634 So.2d 750, 754 (Fla. 1st DCA 1994), approved, 659 So.2d 1046 (Fla. 1995).

Here, the trial court incorporated the magistrate's report and recommendation, which with regard to these two prongs merely stated that there is a likelihood that Ascend will succeed on the merits and that the public's interest will be served by entry of the temporary injunction. Such does not amount to strict compliance with rule 1.610(c)'s requirement to specify the factual basis for entry of the injunction. As such, the temporary injunction is insufficient and must be reversed. See Randolph, 903 So.2d at 385 ("The single error of failing to provide sufficient findings requires us to reverse and remand for further proceedings.").

Accordingly, we reverse the portion of the injunction that directs XIP to pay $117,291.54 to Ascend for withheld net revenues and directs Ascend to pay $30,000 to XIP for unpaid fees. Additionally, we reverse for lack of required findings the portions of the injunction that direct XIP to provide Ascend with all of its client data gathered since August 16, 2016, and to continue performing under the parties' contract during the pendency of the underlying lawsuit. On remand, the trial court may again enter a temporary injunction directing XIP to provide Ascend with its client data and to continue performing under the parties' contract but only if it includes the required findings as to each of the necessary four prongs.

Reversed and remanded.

SILBERMAN and CRENSHAW, JJ., Concur.