JOSIE H. SMITH, APPELLANT,
v.
JAMES L. SMITH AND JAMES L. SMITH, D.O., P.A., APPELLEE
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In a dissolution of marriage case, the Florida appellate court reversed the trial court's alimony determination, holding that the trial court failed to consider the husband's business income as defined in the court-prescribed financial affidavit form. The court remanded for recalculation of alimony based on the full business income of the husband's medical practice.
The trial court erred by failing to consider the husband's business income as properly defined on the financial affidavit form. The court reversed the alimony determination and remanded for recalculation, instructing the trial court to consider accounts receivable versus monies actually collected in determining the business income figure.
[1] A trial court errs when determining alimony by failing to consider a party's business income as defined by the financial affidavit form, which includes gross receipts min…
[2] Financial affidavits in dissolution proceedings must disclose both salary and business income to allow the court to consider all relevant financial resources when determi…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is clear from the financial affidavit form, as amended, that the supreme court intended both salary and business income (if applicable) to be disclosed and taken into consideration by the trial court in determining a spouse's need or ability to pay, as the case may be.”
Establishes that the financial affidavit form requires disclosure of both salary and business income for proper alimony determination.
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Join FLexlaw to unlock all legal intelligenceJames L. Smith is an anesthesiologist and sole owner of a professional association that generated average gross income of $360,000 per year over four …
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RYDER, Acting Chief Judge.
Josie H. Smith challenges the trial court’s final judgment of dissolution of marriage regarding the determination of the amount that James L. Smith is able to pay her alimony. We reverse that portion of the final judgment concerning the amount of alimony, and affirm the remainder of the judgment.
James is the sole employee, officer, director and shareholder of James L. Smith, D.O., P.A. He is an anesthesiologist. James’ expert in accounting testified that the average gross income of the P.A. for the past four years was $360,000.00 per year. Josie testified that during the parties’ marriage they enjoyed a nice life-style spending $20,000.00 a month on living expenses.
The financial affidavit form, as prescribed by our supreme court, contains a space for entry of “[bjusiness income from sources such as self-employment ... [and/or] close corporations ... (gross receipts minus ordinary and necessary expenses required to produce income).” In re Amendments to Rules of Civil Procedure, 536 So. 2d 974, 987 (Fla.1988). The financial affidavits filed by James during the course of the dissolution proceedings represented “business income” to be approximately $13,000.00 to $14,000.00 per month, representing the amount of James’ salary which he received from the business. It is clear from'the financial affidavit form, as amended, that the supreme court intended both salary and business income (if applicable) to be disclosed and taken into con sideration by the trial court in determining a spouse’s need or ability to pay, as the case may be.
Because James’ financial affidavit did not disclose information concerning his “business income” as defined on the form (gross receipts minus expenses), we find error as the trial court did not consider funds from this source in determining the amount of alimony to award Josie. Therefore, the case is reversed and remanded for a redetermination by the trial court of James’ ability to pay alimony. Upon remand, accounts receivable versus monies actually collected by the business should be taken into consideration in arriving at the “business income” figure disclosed in the financial affidavit.
With regard to the issue raised concerning the trial court’s consideration of taxes on alimony, we invite the trial court to proceed under the teachings of Lutgert v. Lutgert, 362 So. 2d 58 (Fla. 2d DCA 1978), cert. denied, 367 So. 2d 1125 (Fla.1979).
Reversed and remanded with directions.
FRANK and PARKER, JJ., concur.
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Rolendia Yangco v. Bienvenido Yangco, 901 So. 2d 217 (Fla. 2d DCA 2005)…ole asset of Oak Tree Medical Center;1 the building is not owned by or an expense of the P.A.; and the Former. Husband elected to purchase the medical building after the trial court entered the 1996 final judgment of dissolution. In Smith v. Smith, 575 So. 2d 228, 228-29 (Fla. 2d DCA 1991), this court recognized that the trial court is to consider “both salary and business income” in determining a spouse’s need or ability to pay. The court noted that the family law financial affidavit “contains a space for e…
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Smith v. Josie H. Smith, 612 So. 2d 713 (Fla. 2d DCA 1993)…judge had not properly evaluated the husband’s ability to pay alimony. On January 25, 1991, this court ordered the trial court to consider the husband’s business income, as well as his salary, in determining the wife’s alimony award. Smith v. Smith, 575 So. 2d 228 (Fla. 2d DCA1991). On remand the case was assigned to Judge Tharpe. Over objection, Judge Tharpe elected to decide the matter based only upon his review of the previous written record. The trial court erred in refusing to hold an evidentiary heari…
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Marybeth F. Newman v. Newman, 221 So. 3d 642 (Fla. 4th DCA 2017)…manding an alimony determination because “the trial court did not include the value of the former husband’s business income or the value of in kind payments made on his behalf when it determined the former husband’s ability to pa/’); Smith v. Smith, 575 So. 2d 228, 229 (Fla. 2d DCA 1991) (trial court erred when making its ability to pay determination by not considering all sources of income available to husband). Section 61.046 broadly defines “income” as follows: [A]ny form of payment to an individual, reg…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- THE Florida BAR v. Bell, 536 So. 2d 974 (Fla. 1988)
- Lutgert v. Lutgert, 362 So. 2d 58 (Fla. 2d DCA 1978)