Opinion
No. 90-1759.
May 15, 1991.
Appeal from the Circuit Court, Palm Beach County, Gary Vonhof, J.
Joan B. Tucker of Brackett, Cook, Sned, Welch, Hewitt, D'Angio Tucker, P.A., West Palm Beach, for appellant.
Morgan R. Rood of Lavalle, Wochna, Raymond Brown, P.A., Boca Raton, for appellee.
In the final judgment of dissolution the trial court acknowledges that the provisions for payment of support and alimony were approximately equal to the husband's income, exclusive of additional sums the court found were available from the husband's small business. However, our review of the record fails to disclose the basis for a conclusion of fact that sufficient additional net income is available from the business to avoid shortchanging the husband, at least for so long as he is required to pay the mortgage payments on the wife's house. We conclude that the totality of the payments ordered constitutes an abuse of discretion. Cf. Gentile v. Gentile, 565 So.2d 820 (Fla. 4th DCA 1990); Soll v. Soll, 560 So.2d 250 (Fla. 3d DCA 1990). In all other respects, we affirm.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
DELL and STONE, JJ., concur.
LETTS, J., concurs specially with opinion.
Obviously, the trial court imputed undisclosed income to the husband when it found that he "had made numerous payments of household expenses through his business" and therefore had the ability to make the ordered payments despite the conclusion that the obligations imposed on him "will approximately equal [his] entire income." Such an imputation would normally be a finding of fact which we could not disturb. However, after much reflection, I cannot fault the majority for its decision to reverse because the record does not reflect how the husband will be able to perform. Perhaps his ability to do so can be demonstrated upon remand. I must confess, however, that I have been on the razor's edge of a dissent in this case.