Opinion
No. 1D18-3307
04-29-2020
Jawan RHODEN, Former Wife, Appellant, v. Gregory RHODEN, Former Husband, Appellee.
Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant. No appearance for Appellee.
Michael M. Giel of Giel Family Law, P.A., Jacksonville, for Appellant.
No appearance for Appellee.
Per Curiam.
The former wife appeals from a final judgment dissolving her marriage to the former husband. Her appeal only challenges the durational alimony award. First, she argues the facts and the law do not support the trial court's refusal to award her permanent alimony. Second, she argues the trial court erred in imputing income to her and in considering future or anticipated events in setting current alimony. Third, she argues the trial court misapplied the law in its award of durational alimony. We agree with the former wife and reverse and remand the alimony award for the reasons discussed herein.
Facts
The fifty-five-year-old former husband petitioned to dissolve the parties' thirty-five-year marriage. The fifty-three-year-old former wife counter-petitioned and requested spousal support on a "permanent, durational, temporary, rehabilitative, bridge the gap, or lump sum basis." The former husband denied the former wife had a need for support and denied he had the ability to pay. The parties proceeded to a brief final hearing.
The parties were not sworn until the end of the hearing and testified only to perfunctory matters. While the trial court asked questions of the parties and the former wife's counsel, there was no sworn testimony or evidence presented on any of the salient facts on appeal.
At one point during the hearing, counsel for the former wife stated the former wife's last employment was working with the former husband for $200 per week. She had applied for Social Security Disability benefits and was awaiting approval. The former wife had several ailments and probably would not have a job if she did not work for the former husband. Prior to working for the former husband, the former wife had minimum wage jobs. The former husband earned about $800 per week.
The trial court indicated it assumed a minimum-wage imputation to arrive at a job difference in their incomes of $2,036. The court stated the maximum it could award would be $610 per month and asked the former husband if he could pay this amount for the next ten years until the parties reached retirement age and would be eligible for Social Security; the former husband said he could. The court noted the former wife could request that the durational alimony be extended.
In the final judgment, the court imputed income of $1,430 per month to the former wife based on a minimum-wage employment. The court found the former wife had a need for alimony and the former husband had the ability to pay. The court noted the former husband was willing to pay $610 per month plus the monthly car payment of $234.19. The court noted any amount greater would equalize the parties' income and be excessive alimony. The court ordered the former husband to pay durational alimony of $610 per month for a period of ten years.
The former wife argues on appeal that the trial court improperly concluded an amount of alimony greater than $610 would be excessive. We decline to address this issue as the former wife has not shown the award amount was an abuse of discretion on this basis.
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After her motion for rehearing was denied, the former wife filed this appeal. This Court reviews the trial court's alimony award for an abuse of discretion. Abbott v. Abbott , 187 So. 3d 326, 327 (Fla. 1st DCA 2016) (citing Broemer v. Broemer , 109 So. 3d 284, 289 (Fla. 1st DCA 2013) ). This Court will not disturb an alimony award if it is supported by competent, substantial evidence and the trial court complied with the law. Id. The trial court's application of the law to the facts is reviewed de novo . Id.
Alimony Award
Section 61.08, Florida Statutes (2018), provides that the trial court may award various types of alimony. The court must first make factual findings on whether a party has an actual need for alimony and the other party has the ability to pay. § 61.08(2), Fla. Stat. (2018). The trial court made these threshold findings. Once a court determines need and ability to pay, it then must consider the factors in section 61.08(2)(a)–(j). The trial court expressly considered the statutory factors and made the necessary written findings. After doing so, the trial court awarded the former wife durational alimony without finding permanent alimony was inappropriate.
The parties' thirty-five-year marriage was a "long-term marriage." § 61.08(4), Fla. Stat. (2018) (defining a long-term marriage as having a duration of seventeen years or greater). A long-term marriage carries a rebuttable presumption favoring an award of permanent alimony. See Keyser v. Keyser , 204 So. 3d 159, 160 (Fla. 1st DCA 2016). The trial court did not address the rebuttable presumption of permanent alimony nor did it explain how or why the presumption had been overcome. The findings the court did make were insufficient to rebut the presumption in favor of permanent alimony and were not supported by competent, substantial evidence.
The trial court awarded the former wife durational alimony instead of permanent alimony. Durational alimony provides a party with support for a set period of time after a long-term marriage if there is no ongoing need for support on a permanent basis. § 61.08(7), Fla. Stat. (2018). Durational alimony may be awarded when permanent alimony is "inappropriate." Id. The trial court did not find permanent alimony was "inappropriate" and did not find the former wife had no ongoing need for support on a permanent basis. The alimony award is reversed and remanded because the trial court did not make the necessary findings to support the decision to award durational rather than permanent alimony. See Broemer, 109 So. 3d at 290 (reversing and remanding where the trial court did not explain why durational alimony rather than permanent alimony was appropriate for a long-term marriage); Taylor v. Taylor , 177 So. 3d 1000 (Fla. 2d DCA 2015) (reversing and remanding where the final judgment did not contain findings to justify why permanent alimony was inappropriate).
Imputed Income
The trial court failed to justify its decision to impute income to the former wife without finding the former wife was voluntarily underemployed/unemployed and was not unemployed due to a physical incapacity beyond her control. McDuffie v. McDuffie , 155 So. 3d 1234, 1236 (Fla. 1st DCA 2015). The record is devoid of evidence to support the imputed income. See id. (looking to the record to support the imputed income award). No sworn testimony was presented, and no evidence was introduced as to the minimum wage for the area. The court seems to have relied on the former wife's counsel's statement that she had held minimum-wage employment in the past and as to what he believed minimum wage was. This was insufficient to support the imputed income award. In addition, the former husband did not present any evidence of the former wife's employability. See Julia v. Julia , 146 So. 3d 516, 522 (Fla. 4th DCA 2014) (recognizing the party seeking that income be imputed bears the burden of showing employability and the availability of jobs). The trial court improperly imputed income to the former wife.
Consideration of Future Events
The trial court erred in considering the parties' anticipated receipt of Social Security retirement benefits in ten years and using that ten-year date as an end date for the durational alimony award. There was no evidence that the parties would collect Social Security in ten years' time. The trial court erred in considering future, anticipated events in setting current alimony. Nelson v. Nelson , 651 So. 2d 1252, 1254 (Fla. 1st DCA 1995). Alimony should be based on "current existing circumstances, and not on possibilities." Hedden v. Hedden , 240 So. 3d 148, 151 (Fla. 5th DCA 2018). The trial court abused its discretion in electing a fixed durational term instead of permanent alimony on the basis of future events. See id . (concluding the court abused discretion in awarding durational alimony based on "potential availability of future Social Security benefits").
Extension of Durational Alimony
The trial court also misapplied the law of durational alimony in stating the former wife could seek to "extend" the durational alimony period. The length of durational alimony cannot be extended except under exceptional circumstances. § 61.08(7), Fla. Stat. (2018). While the former wife could potentially petition for a modification under section 61.14(1)(a), Florida Statutes, see Ispass v. Ispass , 243 So. 3d 453, 456 (Fla. 5th DCA 2018), she would have to show a change in circumstances. Arguably, the trial court's justification for the ten-year durational alimony award—the age of retirement—would not constitute a change in circumstances to support a later modification. As such, the court's statement that the durational alimony award could be extended was in error.
Conclusion
For the foregoing reasons, we reverse the durational alimony award and remand to the trial court for proceedings consistent with this opinion.
REVERSED .
Wolf, Roberts, and M.K. Thomas, JJ., concur.