March 31, 2025
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A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Rhoden v. Rhoden. In this case the husband filed a Petition for Dissolution of a thirty-five year marriage. The husband denied that wife required alimony, and denied that he was able to pay it. The Court stated that the wife had several illnesses, and probably would not have been employable if she had not worked for her husband. The Florida Statutes enable trial courts to award several different types of alimony. In awarding alimony, a court must first find that one party has a need for support and that the other party has the ability to pay. Once the court makes this initial determination, the Court is required to consider other factors set forth in the Florida Statutes. In this case, the trial court awarded the wife durational alimony.
The Florida Court of Appeal found that the parties’ marriage was a long term marriage. A long-term marriage is a marriage having a duration of 17 years or more. When there is a long-term marriage, there is a rebuttable presumption that permanent alimony is appropriate. In this case, the trial court awarded the wife durational alimony, instead of awarding her permanent alimony. Durational alimony supplies the recipient with support for a set period of time when there is not an ongoing need for support on a long-term basis. Durational alimony can be awarded when permanent alimony is not appropriate. In this case, the Florida Court of Appeal reversed the trial court’s ruling because the trial court did not make a finding that permanent periodic alimony was inappropriate, and because the former wife did had an ongoing need for support.
To speak with an alimony attorney in Wellington, Florida, contact the Lane Law Firm, P.A. at (561) 363-3400.
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March 31, 2025
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An alimony case involving imputation of income was recently decided by the Florida Court of Appeal in a case captioned Jorgensen v. Tagarelli. In this case the wife appealed a final judgment in which the lower court incorrectly imputed income. In the case at bar, the wife earned $118,000, in 2016. The parties separated, and the wife voluntarily left her job and began working as a self-employed insurance broker, where she earned approximately $38,000. The husband asked the trial court to impute income to the wife based upon his contention that the wife intentionally caused the reduction her income.
The Florida Court of Appeal began by pointing out that parties asserting that their spouses are voluntarily underemployed or unemployed bear the burden of proof. The appellate court then stated that trial courts are required to impute income if they find that spouses are voluntarily underemployed or unemployed. In imputing income, courts are to determine the parties’ probable earnings and employment potential based upon their occupational qualifications, recent work history, and the prevailing earnings level for similarly qualified employees in the community.
Regarding alimony, the Florida Court of Appeal found that there was substantial, competent evidence that the wife was voluntarily underemployed. However, the lower court erred in imputing income solely based on the wife’s past earnings. The Court of Appeal stated that the trial court should have imputed income based upon the wife’s current employability and the availability of jobs in her field. Trial courts should impute income based upon the salaries that are currently being paid for available jobs in the relevant geographical area for which employees are qualified. Therefore, the trial court’s final judgment was reversed, and the case was remanded to the lower court for rehearing in order to calculate the proper amount of alimony.
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March 31, 2025
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A durational alimony case was recently decided by the Florida Court of Appeal in a case captioned Johnson v. Johnson. In this case, the husband and wife were married in 2006. They have two children. The husband worked in retail, and the wife was an auditor. The wife’s income substantially exceeded the Husband’s. In 2011, the husband stopped working in order to raise the children. In 2017, the husband returned to work. In the divorce proceeding, the Husband sought alimony from the wife. The lower court awarded durational alimony to the husband for a period of sixty months.
The wife appealed the trial court’s ruling. The Florida Court of Appeal reversed the trial court’s decision. The appellate court pointed out that the purpose of durational alimony is to provide funds for a set period of time. In awarding alimony, a trial judge is required to first make a determination as to the recipient’s need and the payor’s ability to pay. Once the court determines need and ability to pay, the trial court is to consider the following factors: (i) the parties’ standard of living during the course of the marriage; (ii) the length of the marriage; (iii) the parties’ ages and physical and emotional condition; (iv) each party’s financial resources; (v) the parties’ earning capacities; (vi) the parties’ contribution to the marriage; (vii) the responsibilities for parenting that each party will have after the divorce; (viii) the tax consequences of the award; (ix) income available to each of the parties from all sources; and (x) any other factor that the court deems just.
In awarding alimony, a trial court should follow a four-step procedure in which it decides: (a) a recipient’s need for support; (b) a payor’s ability to pay; (c) the appropriate type of alimony; and (d) the amount to be awarded. In the case at bar, the Florida Court of Appeal held that the trial court’s ruling was not grounded in competent, substantial evidence. Accordingly, the appellate court reversed the decision of the trial court.
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March 31, 2025
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An alimony case was recently decided by the Florida Court of Appeal in a case captioned Baron v. Baron. In Barron v. Barron, the Wife appealed a Final Judgment of Dissolution of Marriage that denied her request for permanent periodic alimony. The parties were married for twenty years. Rather than awarding the former wife permanent support, the trial court awarded her durational alimony for twelve months.
In reaching its decision, the Florida Court of Appeal pointed out that a long-term marriage is a marriage that lasts 17 or more years. Where there is a long-term marriage, there is a rebuttable presumption in favor of awarding permanent support. The purpose of durational alimony is to provide a payee with support for a specific period of time, when there is a long term marriage and there is no need for ongoing support on a permanent basis.
In the alimony case at bar, the Final Judgment of Dissolution of Marriage failed to provide an explanation as to why permanent support was inappropriate. The Florida Court of Appeal ruled that it is an abuse of the trial court’s discretion not to award permanent alimony for this long-term marriage, absent a finding that the presumption favoring permanent periodic alimony was overcome by substantial competent evidence.
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March 31, 2025
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In a recently decided alimony case captioned Harkness v. Harkness, the wife appealed the final judgment dissolving her marriage and awarding her durational alimony. The husband and wife were married for more than nineteen years. During the marriage, the husband worked full time, and the wife was a stay at home mother raising the parties’ children. After the wife petitioned for dissolution of marriage, she found a job earning substantially less than her husband. In the Final Judgment dissolving the marriage, the trial court ruled that there was no basis for awarding permanent alimony to the wife because she has the capacity to financially sustain herself. Therefore, the trial court awarded her durational alimony for five years. The Florida Court of Appeal reversed this decision.
In reaching its determination, the Florida Court of Appeal stated that in deciding whether or not to award alimony, the trial court is required to first make a determination as to whether one of the parties has a need for alimony, and the other party has the ability to pay. After making this determination, the trial court is to decide which type of alimony is most appropriate. There is a rebuttable presumption that a marriage of seventeen (17) years or longer is a long-term marriage. There is also a rebuttable presumption that a trial court should award permanent alimony for a long-term marriage.
The purpose of permanent alimony is to provide for the necessities and needs of the recipient as they were established during the course of the marriage. It is not intended to divide the parties’ future income in order to create financial equality. Permanent alimony is inappropriate when there is not a permanent inability on the part of the recipient to become self-sustaining. Alimony is intended to avoid, when possible, having a former spouse pass from always having more than enough, to having only enough to pay for the essentials of shelter, clothing, and food.
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March 31, 2025
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In an alimony case captioned Waldera v. Waldera, the trial court was presented with evidence concerning the Husband’s income during the previous ten years. However, the trial court only considered the Husband’s income during the one year period that preceded the entry of the Final Judgment. The Florida Court of Appeal ruled that this was error.
Calculating alimony was recently discussed by the Florida Court of Appeal in a case captioned Waldera v. Waldera. In Waldera v. Waldera the case, the Wife appealed the amount of the alimony that was awarded to her by the trial court in the Final Judgment of Dissolution of Marriage. She argued that the trial judge reached an erroneous alimony determination, by improperly calculating her Husband’s income. In reaching its calculation, the trial court relied solely on the Husband’s income for one year. The Florida Court of Appeal agreed with the Wife that this was an error.
The appellate court pointed out that in making an alimony determination, a trial court is required look at all sources of income that are available to both parties. For purposes of determining alimony, income is considered to be any type of payment, regardless of the source. Income includes salary, bonuses, commissions, and earnings as an independent contractor. In awarding alimony, courts are required to consider all economic factors, including income, past earnings, net worth, and the parties’ assets. In this case, although the trial court was presented with evidence concerning the Husband’s income between 2009 and 2016, the trial court only considered the income that Husband earned during the year preceding the entry of the Final Judgment for Dissolution of Marriage. The appellate court pointed out that there is a presumption that a payor will continue to earn the same amount that he or she has historically earned, unless there is evidence to the contrary.
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March 31, 2025
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In a recently decided alimony case captioned Ritacco v. Ritacco, the Husband and Wife were married for more than twenty-two years. The Husband was the sole income provider during the marriage. The Wife raised the parties’ daughters, and did not work outside of the home. The Husband receives a salary, a pension, and owns a DROP account. The Florida Court of Appeal decided four alimony issues.
First, the appellate court pointed out that there is a rebuttable presumption that the trial court should award permanent alimony when there is a long term marriage. A long-term marriage is a marriage that exceeds seventeen years.
Second, the Court of Appeal recognized that a trial court should impute income that can reasonably be received from a party’s liquid assets. Where a party receives an award of equitable distribution that will result in immediate income, this income will be included in making an alimony calculation. However, in the case at bar, the amount of income was so small that the court declined to impute it as income.
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March 27, 2025
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In a divorce proceeding, an agreement to provide for a child’s college expenses includes an agreement to provide for room and board. In Weaver v. Corey the Florida Court of Appeal stated that: “The Former Wife and Former Husband entered into a marital settlement agreement…as part of the dissolution of their marriage….By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school.
Specifically, the agreement provided that ‘[b]oth parties agree that each will use their best efforts to provide funds’ and that ‘[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.’ The parties’ oldest child, James Dalton Weaver, graduated from high school in December 2008 and enrolled in college the next month. The Former Husband began to contribute to the cost of James’ college expenses. However, there came a time when the Former Husband did not pay the full amount of the college expenses as expected by his now adult son and the Former Wife, and they sued the Former Husband for breach of contract. The trial court found that the Former Husband had not used his best efforts in supplying the costs of his son’s college education and entered an order requiring the Former Husband to pay a total of $41,603 to the son and the Former Wife as the costs of the college education.
On appeal, the Former Husband argues that the trial court failed to take into account the Former Wife’s failure to exercise her best efforts to contribute funds, as is also required by the agreement. Specifically, the Former Husband maintains that the Former Wife was willfully underemployed causing her annual income to range from $300 to $8500. When compared to the Former Husband’s income, the ratio described in the marital settlement agreement required the Former Husband to pay the equivalent of 97.4% to 99.9% of the son’s college expenses. The Former Husband argues that the trial court’s failure to consider the Former Wife’s willful underemployment in considering whether she was exercising her best efforts was error. We disagree.
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March 27, 2025
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In a divorce proceeding, even if the record supports an award of attorney’s fees, the failure to include the necessary findings in the order constitutes reversible error. In Bradham v. Bradham, the Florida Court of Appeal recently stated: “Timothy Bradham, the former husband, appeals the trial court’s order modifying his alimony obligation and requiring him to pay attorney’s fees and costs of appellee, Susan E. Bradham, the former wife. We find no abuse of discretion in the modification of alimony.Galligar v. Galligar, 11 So. 3d 808, 811 (Fla. 1st DCA 2011). Because the trial court made no findings to support the fee and cost award, we reverse the order granting fees and costs and remand for further proceedings.
We apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L Hall, M.D., P.A. v. White, 97 So. 3d 907,909 (Fla. 1st DCA 2012). Florida law provides: ‘[A] court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals …An application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter. §61.16(1), Fla. Stat. (2012). Furthermore, in Norman v. Norman, 939 So. 2d 240, 241-42 (Fla. 1st DCA 2006), this court held that a trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount, as required by Fla. Patient’s Comp. Fund v. Rowe, All So. 2d 1145 (Fla. 1985). Even where the record supports awarding fees and costs, failure to include the necessary findings constitutes reversible error. Id. at 242; see also Ard v. Ard,765 So. 2d 106, 107 (Fla. 1st DCA 2000) (remand of attorney’s fee award required where the trial court made no findings as to the attorney’s hours expended, hourly rate, or reasonableness of the fee).”
To speak with a Palm Beach Gardens divorce lawyer, contact Matthew Lane & Associates, P.A. at (561) 651-7273.
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March 27, 2025
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In a divorce proceeding, notwithstanding the lack of reservation of jurisdiction to enforce a charging lien, the trial court retains jurisdiction to enforce a charging lien where the trial court reserves jurisdiction to award fees. In Card v. Card, 38 Fla. L. Weekly D2015, 2016 (Fla. 2d DCA September 20, 2013), the Florida Court of Appeal recently stated: “Counsel for the Former Wife also argues that the trial court erred by not reserving jurisdiction in the amended final judgment to address his timely filed charging lien.
There is no dispute that counsel filed the notice and claim of charging lien before the original final judgment was entered. Thus, counsel perfected his charging lien by providing timely notice. See Daniel Mones, P.A. v. Smith, 486 So. 2d 559,561 (Fla. 1986) (“In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383, 1385 (Fla. 1983) (“[T]here are no requirements for perfecting a charging lien beyond timely notice.”); Brown v. Vt. Mut. Ins. Co, 614 So. 2d 574, 580 (Fla. 1st DCA 1993) (holding that to be “timely” the notice of a charging lien must be filed “before the lawsuit has been reduced to judgment”). Notwithstanding a lack of express reservation of jurisdiction over the charging lien, the trial court is not foreclosed from considering the charging lien in this action because the issue of attorney’s fees and costs has not been finalized and the trial court reserved jurisdiction for that purpose. See Baker & Hosteller, LLP v. Swearingen, 99S So. 2d 1158,1163 (Fla. 5th DCA 2008) (holding that the trial court had jurisdiction to consider a motion to perfect and enforce an attorney’s charging lien where the trial court reserved jurisdiction to determine entitlement and amount of attorney’s fees).”
To speak with a divorce lawyer in Wellington, Florida, contact Matthew Lane & Associates, P.A. at (561) 651-7273.
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