Kevin Scheen v. Wanda Drozdovitch

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

KEVIN SCHEEN,
Appellant,

v.

WANDA DROZDOVITCH,
Appellee.

No. 4D2025-1352

[June 3, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Francis Viamontes, Judge; L.T. Case No.
062022DR008179AXXXCE.

James Vincent Facciolo, III, of Law Offices of James V. Facciolo, III, Fort
Lauderdale, for appellant.

Terrence Patrick O’Connor of Morgan, Carratt & O’Connor, P.A., Fort
Lauderdale, for appellee.

SHEPHERD, J.

The former husband appeals the trial court’s final judgment of
dissolution of marriage that: (1) failed to credit the former husband for
marital expenses paid from his retirement account and (2) did not provide
a mechanism to ensure the former husband is compensated if the former
wife fails to refinance the marital residence. We agree with the former
husband and reverse the trial court’s judgment on these two issues. We
affirm the final judgment in all other respects.

The former husband first argues that the trial court erred in valuing
his retirement account. We review a trial court’s determination of
equitable distribution for abuse of discretion. Bardowell v. Bardowell, 975
So. 2d 628, 629 (Fla. 4th DCA 2008).

At trial, the former husband testified that after filing his financial
affidavit, he withdrew $100,000.00 from his retirement account to pay for
household and living expenses, including expenses related to the parties’
minor child. The trial court found the former husband’s testimony
credible, but declined to deduct $100,000.00 from the value of the former
husband’s retirement account, as provided in his financial affidavit, on the
ground that it was not equitable for the former husband to withdraw funds
from the retirement account without the former wife’s agreement.

Section 61.076, Florida Statutes (2022), provides that “[a]ll vested and
nonvested benefits, rights, and funds accrued during the marriage in
retirement, pension, profit-sharing, annuity, deferred compensation, and
insurance plans and programs are marital assets subject to equitable
distribution.” § 61.076(1), Fla. Stat. (2022).

“[I]t is error to include in the equitable distribution scheme sums that
have been diminished during the dissolution proceedings for purposes
reasonably related to the marriage.” Briggs v. Briggs, 336 So. 3d 1286,
1288 (Fla. 1st DCA 2022) (citing Schroll v. Schroll, 227 So. 3d 232, 236
(Fla. 1st DCA 2017)). “To include dissipated assets in an equitable
distribution scheme, the court must make a specific finding that the
dissipation resulted from intentional misconduct.” Id. “Misconduct is not
shown by mismanagement or simple squandering of marital assets in a
manner of which the other spouse disapproves.” Briggs, 336 So. 3d at
1288 (quoting Winder v. Winder, 152 So. 3d 836, 838-39 (Fla. 1st DCA
2014)).

The trial court erred when it included the dissipated assets from the
former husband’s retirement account in the equitable distribution scheme.
The trial court found the former husband’s testimony credible that he had
used the funds for purposes reasonably related to the marriage, and failed
to make a finding of intentional misconduct. We therefore reverse and
remand for the trial court to amend the final judgment to reduce the value
of the husband’s retirement account by $100,000.00, consistent with the
former husband’s testimony.

The former husband also argues that the trial court erred by failing to
provide a mechanism to ensure he is paid if the former wife fails to
refinance the marital residence. At trial, the parties agreed to both
continue to live in the marital home for one year. The final judgment
states: “The parties shall be entitled to continue to reside in the marital
residence and shall maintain the status quo regarding the expenses of
same until August, 2025, at which time Husband shall vacate the marital
residence.” Although the final judgment also awarded half of the home’s
marital share to the former husband, the final judgment is silent as to how
the former husband is to receive his share after he vacates the home.

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“A trial court has the authority to order a party to refinance a home and
remove the other party from the mortgage.” Karkhoff v. Robilotta, 309 So.
3d 229, 234 (Fla. 4th DCA 2020) (citing Tarnawski v. Tarnawski, 851 So.
2d 239, 241 (Fla. 4th DCA 2003)). “However, when a trial court orders a
party to refinance a home in a final judgment, that final judgment must
direct a result that if that party is unable, or simply fails, to refinance the
home.” Karkoff, 309 So. 3d at 234 (citing Jones v. Jones, 184 So. 3d 1238,
1239 (Fla. 5th DCA 2016)). “Failure to include such a directive is
reversible error.” Id. Accordingly, we remand for the trial court to amend
the final judgment to provide a mechanism for the former husband to
receive his half share of the marital home.

Affirmed in part, reversed in part, and remanded with instructions.

LEVINE and CONNER, JJ., concur.

* * *

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

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