Mark K. STRALEY, Appellant, v. Stacy FRANK, Appellee, 612 So. 2d 610

ON REMAND FROM THE FLORIDA SUPREME COURT PER CURIAM. We consider this case on remand from the Florida Supreme Court pursuant to Frank v. Straley, 602 So.2d 1278 (Fla.1992). The parties to this appeal of a dissolution judgment, Mark Straley and Stacy Frank, are both attorneys. They were married in 1984 and separated four years later in 1988. Straley placed several of his premarital assets into joint names with his wife, giving rise to the presumption of a gift. See Robertson v. Robertson, 593 So.2d 491 (Fla.1991). Frank fared very well at the hands of the trial court.

She entered this four-year, childless, two-career marriage with roughly $9,000.00 in assets and an embryonic law practice that was not producing income. She exited the marriage with approximately $150,000.00 in assets, no liabilities, and an annual income of $54,350.00 from her legal employment. Indeed, the trial court awarded Frank more assets than she asked for in open court at trial. Straley, on the other hand, was denied all special equity claims and was ordered by the trial court to pay some $195,000.00 in debts, fees, and costs exclusive of his own attorney fees and costs.

The trial court ordered Straley to pay $111,006.00 in unsecured marital debts, a fee for. Frank’s attorney in the amount of $71,706.50, and her costs of $12,-836.32. Straley also incurred a personal attorney fee of $25,000.00 and costs of his own in the amount of $13,280.85. Therefore, his aggregate indebtedness, after judgment, was almost $234,000.00. On appeal Straley challenges as inequitable the trial court's distribution of marital assets and liabilities, and the assessment of attorney fees.

The disputed assets include, inter alia, the following real and personal property: Straley’s interest in two speculative real estate investment partnerships owned prior to marriage (601 South Florida Avenue Land Trust and Harbor Property Associates); a 21-foot Mako motorboat which was titled in the name of Straley and Frank as tenants in common prior to marriage; two lots on Palm Island in Charlotte County purchased by Straley prior to marriage, with a $15,000.00 down payment (the beach property); a vacation home built on the beach property during marriage at a cost of approximately $35,000.00; Straley’s premarital furniture, subsequently placed in the beach house; a 40-foot sailboat known as the Evtide purchased during marriage and requiring costly restoration efforts; and the marital home located on Bayshore Boulevard in Tampa and the furniture therein, financed in part by the sale of a house on Bristol Avenue owned prior to marriage by Frank.

We find that the trial court erred in several particulars in fashioning its “equitable distribution.” Initially, we observe that the trial court erred in characterizing the passive appreciation in market value of Straley’s interest in non-marital real estate partnerships (601 and Harbor property) as a marital asset. See Wright v. Wright, 505 So.2d 699 (Fla. 5th DCA 1987).

Section 61.075(3)(a)2 defines “marital assets and liabilities” as including “the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets.... ” In this case, any increase in market value did not result from the expenditure of marital funds or from marital efforts, but resulted from “inflation or fortuitous market forces.” Wright at 700.

Any expenditure of marital funds on maintenance of these non-marital assets did not transform the appreciated asset into a marital asset. See Macaluso v. Macaluso, 523 So.2d 615, 616 (Fla. 2d DCA), rev. denied, 531 So.2d 1354 (Fla.1988); Rion v. Rion, 421 So.2d 541, 543 (Fla. 5th DCA 1982); see also, Hanks v. Hanks, 553 So.2d 340, 342-343 (Fla. 4th DCA 1989). The appreciation in value of these two partnerships as a result of the infusion of marital funds was the amount by which Straley’s share of the mortgage debt on 601 and Harbor property was reduced during marriage.

Straley should have been debited with one-half of that amount, a sum of $4,347.50. See Landay v. Landay, 429 So.2d 1197 (Fla.1983). Additionally, it is clear that the trial court erred in summarily denying Straley’s claim to a credit for one-half the value of the Mako motorboat, which was his interest at the time of marriage. This error was candidly conceded at oral argument by counsel for Frank. We would agree, however, that the evidence in regard to Stra-ley’s assertion of a special equity in the sailboat, the Evtide, was confusing and conflicting and the denial of that claim was not error.

We also affirm the trial court’s denial of Straley’s claim to a special equity in the beach property, which was purchased by him prior to marriage with a $15,000.00 down payment. See Robertson. However, there was no “equity” in the trial court’s assignment of all of the marital debt to Straley and none of it to Frank. As pointed out in the appellant’s brief: The inequity of the trial court’s plan of equitable distribution is apparent on its face.

Having entered the marriage with few assets and having contributed comparatively little to the acquisition of marital assets, the wife leaves the marriage with a 1987 Jeep Wagoneer automobile and a 21 foot Mako motor boat (both fully paid for), the beach property (with $52,000.00 in equity, and the most coveted marital asset), a boat condominium slip (with nearly $10,000.00 in equity), a $7,700.00 gemstone, and over $22,000.00 in cash, including $18,000.00 in lump sum alimony.

In addition, the Wife received virtually all of the personalty from both marital residences, as well as a 50% beneficial interest in 238 Franklin, and was relieved of any responsibility for $111,-000.00 of marital debt. In view of the fact that neither party to this dissolution action desires to retain any marital asset except the beach property (which they jointly own), the trial court would have been on safer ground had it granted partition of all other marital property and evenly divided the proceeds and the liabilities. The award of attorney fees below is reversed in toto.

There was no showing below that the wife lacked the present ability to pay substantial attorney fees. The evidence was exactly to the contrary. The wife is an attorney with no dependents and no liabilities, earning in excess of $50,-000.00 per year. Even her one-half interest in the parties’ two boats had a value in excess of $50,000.00. The purpose of

section 61.16, Florida Statutes (1989), providing for assessment of attorney fees by the trial court after consideration of the financial resources of the parties, is to “compel the trial court to mitigate the harm an impecunious spouse would suffer where the other spouse’s financial advantage accords him or her an unfair ability to obtain legal assistance.” Nichols v. Nichols, 519 So.2d 620, 621-622 (Fla.1988); see also, Cummings v. Cummings, 330 So.2d 134 (Fla.1976). There is no reasonable basis in this record for finding that Frank was at a financial disadvantage in obtaining legal assistance.

We reverse and remand for the entry of a judgment consistent with this opinion. Neither party should be awarded attorney fees. REVERSED AND REMANDED. DAUKSCH, J., COBB, W., COWART, J., HARRIS, C., and PETERSON, E., Associate Judges, concur. W. SHARP, Associate Judge, concurs in part, dissents in part with opinion. GRIFFIN, J., Associate Judge, concurs in part, dissents in part with opinion, with which GOSHORN, G., Associate Judge, concurs. DIAMANTIS, G., Associate Judge, concurs in part, dissents in part with opinion. .

The trial court found that Straley’s non-marital assets in 601 and Harbor Property "accumulated” a value of $56,825.00 and $40,899.00, respectively, during the marriage, and deemed this accumulation, though passive, to be a marital asset.