Summary
concluding that the wife needed not raise her challenge to the specific amount the trial court awarded in durational alimony in a motion for rehearing since the claim constituted a sufficiency-of-the-evidence argument
Summary of this case from Pappas v. PappasOpinion
No. 1D19-430
06-15-2020
Julie Elaine JOHNSON, Former Wife, Appellant, v. Erik David JOHNSON, Former Husband, Appellee.
Aaron M. Makofka of Makofka & Makofka, Jacksonville, for Appellant. Scott R. Ellerin and Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellee.
Aaron M. Makofka of Makofka & Makofka, Jacksonville, for Appellant.
Scott R. Ellerin and Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellee.
Per Curiam.
The former wife appeals from a final judgment of dissolution of marriage and a supplemental final judgment of dissolution. She argues the trial court erred: (1) when it awarded the former husband $2,000 in durational alimony for sixty months and (2) when it failed to award her retroactive child support. We agree with the former wife, reverse the judgments, and remand for further proceedings.
Facts
The parties were married in 2006 and share two minor children. The wife filed a petition for divorce in 2017, and the husband filed a counter-petition. In 2018, the parties filed a pretrial stipulation that the former husband grossed $1,399.02 (net $1,238.76) per month working in retail and that the former wife grossed $9,009 (net $8,006) per month working as an auditor. At the nonjury trial, the former wife testified she received an annual dividend from a family trust. The parties agreed that the former husband would stop working in 2011 to care for the children, and he testified he did not return to the workforce until 2017. The former wife testified she had provided for all of the children's financial needs since the separation and had assisted the husband with some relocation expenses. The husband sought $2,500 per month in alimony for eight years to help him cover his $2,006 in living expenses while he got back on his feet.
In the 2018 final judgment, the trial court awarded the former husband $2,000 per month of durational alimony for sixty months. The court made the following findings relevant to sections 61.08(2)(a)–(j), Florida Statutes. Both parties had the ability to work, and the court considered the parties’ "current employment and the [w]ife's nonmarital trust income." The parties agreed that the husband would stop working to raise the children for a period "in excess of 60 months." The husband's earning history "is limited and is far exceeded by the [w]ife's." He also has "limited education, skills, and training," and his "current employment is all that he is currently qualified to do." The wife earns significantly more than the husband. Alimony would not leave the wife "with significantly less net income than the net income of the husband." The court reserved judgment to later enter the parenting plan, equitable distribution, child support, and attorney's fees in a supplemental final judgment.
In a 2019 supplemental final judgment, the court adopted its previous findings regarding alimony. As to child support, the court used the wife's stipulated income of $95,558.33 per year from her employment as well as income from a family trust in the amount of $3,600 per year for a total of $8,263.19 gross income per month. The court found the wife had unilaterally enrolled the children in private school, that the husband could not afford said private school, and that the husband was not required to contribute to that expense. The wife was ordered to pay the husband $156.17 per month during the period she was paying durational alimony and thereafter $860.54 per month until the children reached the age of majority. Child support guidelines worksheets were attached. This appeal followed.
Durational Alimony
In her first issue on appeal, the former wife argues the trial court erred in awarding the former husband $2,000 in durational alimony. We review the trial court's alimony award for an abuse of discretion. Abbott v. Abbott , 187 So. 3d 326, 327 (Fla. 1st DCA 2016). Durational alimony is awarded "to provide a party with economic assistance for a set period of time[.]" § 61.08(7), Fla. Stat. In determining whether to award alimony, the trial court must first make "a specific factual determination" as to need and ability to pay and if it determines alimony is warranted, shall consider the relevant factors listed in sections 61.08(2)(a)–(j) to determine the appropriate type and amount. A trial court's failure to make these factual findings "precludes meaningful appellate review." Horton v. Horton , 257 So. 3d 1197, 1201 (Fla. 1st DCA 2018) (citing Abbott , 187 So. 3d at 328 ).
The former husband argues the former wife failed to preserve this issue for appeal. In the final judgment, the trial court did make factual findings, albeit brief ones, as to each of the factors listed in sections 61.08(2)(a)–(j). The wife is not challenging the trial court's failure to make the requisite factual findings, which challenge would indeed be unpreserved because she did not file a motion for rehearing. See, e.g., Welch v. Welch , 22 So. 3d 153, 155–56 (Fla. 1st DCA 2009) ("To the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a timely motion for rehearing."). The wife argues she did not have to file a motion for rehearing because she is challenging the sufficiency of the trial court's findings. This argument is preserved for appeal as Florida Rule of Family Law Procedure 12.530(e) provides that arguments regarding the sufficiency of the evidence in a nonjury trial may be raised on appeal without first filing a motion for rehearing. See also Keyser v. Keyser , 204 So. 3d 159, 160 n.2 (Fla. 1st DCA 2016) (treating wife's challenge to the trial court's decision to deny alimony as a challenge to the sufficiency of the evidence, which could be raised on appeal under Florida Rule of Civil Procedure 1.530(e) regardless of whether a motion for rehearing had been filed below).
In Taylor v. Taylor , 177 So. 3d 1000, 1002 (Fla. 2d DCA 2015), the Second District summarized the trial court's decision to award alimony as a four-step process in which it had to determine: (1) the party's need for support, (2) the other party's ability to pay, (3) the types of alimony appropriate in the case, and (4) the amount of alimony to award. Competent, substantial evidence supports the trial court's determination that the husband needed some amount of support and that the wife had the ability to pay. The problem with the trial court's alimony award lies in the fourth step–the amount.
The parties stipulated to their earnings. The husband's expenses fluctuated in his financial affidavits, but at trial, he agreed $2,006 represented the entire amount of his need except an anticipated rent increase of $400. Factoring in all of the testimony, the husband showed a need of, at most, $1,171 per month. This figure is well below the $2,000 awarded by the trial court. In addition, the trial court did not substantiate its decision to award durational alimony for a period of sixty months other than to state the former husband had been out of the workforce for a period in excess of sixty months. As to the former wife's ability to pay, including her dividend income, she showed only a surplus of $857 per month, which was well below the $2,000 awarded. While the trial court did seem to suggest that some of the wife's expenses were inflated, it made no finding of such in the final judgment nor did it find she had intentionally dissipated her income. Given these discrepancies, the trial court's decision to award $2,000 in durational alimony for sixty months is not supported by competent, substantial evidence. The durational alimony award is reversed and remanded for further findings on the parties’ need and ability to pay. See Stricklin v. Stricklin , 247 So. 3d 96, 98 (Fla. 1st DCA 2018) (reversing and remanding durational alimony award for further findings of fact); Bruno v. Bruno , 119 So. 3d 1273 (Fla. 1st DCA 2013) (remanding durational alimony award for further findings of fact where it was not clear how the trial court arrived at the figure awarded).
Retroactive Child Support
A trial court's denial of retroactive child support is reviewed for an abuse of discretion. § 61.30(17), Fla. Stat.; Smith v. Smith , 872 So. 2d 397, 399 (Fla. 1st DCA 2004).
Unlike the previous issue, the trial court made no findings regarding the children's needs or the husband's ability to pay retroactive child support. To the extent the wife's argument can be construed as a challenge to the sufficiency of the evidence to support the trial court's denial of retroactive child support, that issue can be considered on appeal under Florida Rule of Family Law Procedure 12.530(e). Moreover, parents may not waive children's rights to retroactive support. See Kirtley v. Fla. Dep't of Revenue , 221 So. 3d 1267, 1268 (Fla. 1st DCA 2017) (finding trial court abused its discretion in denying retroactive child support based on mother's purported waiver).
Section 61.30(17), Florida Statutes, provides:
(17) In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. In determining the retroactive award in such cases, the court shall consider the following:
(a) The court shall apply the guidelines schedule in effect at the time of the hearing subject to the obligor's demonstration of his or her actual income, as defined by subsection (2), during the retroactive period. Failure of the obligor to so demonstrate shall result in the court using the obligor's income at the time of the hearing in computing child support for the retroactive period.
(b) All actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period.
(c) The court should consider an installment payment plan for the payment of retroactive child support.
"A trial court abuses its discretion when it fails to award retroactive support ... when there is a need for child support and an ability to pay." Leventhal v. Leventhal , 885 So. 2d 919, 920 (Fla. 3d DCA 2004). In her 2017 petition, the former wife sought retroactive child support from the time the husband left the marital home in April 2017. It was undisputed that the husband had provided no financial support for the minor children since the time of separation. The wife had custody of the children during the proceedings as the husband initially only had supervised visitation. The testimony showed the parties separated around March 2017, at which time the husband began working at Belk. He had worked continuously since being hired by Belk and testified he was recently fully supporting himself.
In the supplemental final judgment, the trial court implicitly denied the mother's retroactive child support request purportedly because she had unilaterally chosen to incur expenses of private school and extracurricular activities. These findings do not speak to the children's needs or the husband's ability to pay. The trial court erred in failing to fully consider retroactive child support, which is a dual obligation by both parents owed to the children. The portion of the final judgment awarding child support is reversed and remanded for consideration of the retroactive child support request. See Barnett v. Barnett , 802 So. 2d 1203 (Fla. 2d DCA 2002) (reversing and remanding denial of retroactive child support where the trial court made no findings to support its decision to deny the children's right to retroactive support). The final judgment and supplemental final judgment are reversed and remanded for proceedings consistent with this opinion.
REVERSED and REMANDED
Wolf, Roberts, and Rowe, JJ., concur.