JOHN L. WOODARD, III, APPELLANT,
v.
JAYMIE SANDS WOODARD, APPELLEE
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A husband appeals a trial court's alimony and child support awards, challenging the court's failure to properly analyze statutory factors and treat an inheritance deposited into a joint marital account. The appellate court reverses and remands, finding the trial court's analysis insufficient and requiring proper findings on alimony factors and designation of the inheritance as marital or non-marital property.
The trial court's alimony analysis was insufficient, considering only two of seven required statutory factors without adequate findings. The court must determine the husband's current income, not past average income, to establish ability to pay. The court failed to properly designate the commingled inheritance as marital or non-marital and must address whether the wife met her burden of rebutting the presumption of gift that arose from commingling.
[1] A trial court must make specific findings of fact regarding the statutory factors enumerated in section 61.08(2) to support an award of alimony.
[2] A determination of a party's ability to pay alimony must be based on their current income or income expected in the immediate future, not solely on past average income.
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Join FLexlaw to unlock all legal intelligence“The only consideration of the seven factors enumerated in section 61.08(2) made by the trial court were that the parties had been married for ten years and that their 'standard of living' had been 'supported in large part by the husband's income.' This analysis falls far short of the legislative directive to make 'findings of fact relative to the factors enumerated in subsection (2) supporting an award ... of alimony.'”
Establishes that the trial court failed to adequately analyze statutory alimony factors as required by law.
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Join FLexlaw to unlock all legal intelligenceThe parties were married for ten years. The husband's income had been reduced from historical averages, though the trial court found his past four-yea…
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HARRIS, Chief Judge.
The husband appeals the trial court’s finding as to entitlement to and the amount of permanent alimony, the amount of child support and the court’s failure to consider an inheritance to the wife, deposited into a joint account, as a marital asset. We reverse. It might well be that permanent alimony is appropriate in this case; it is impossible, however, to determine that from the Final Judgment the trial court entered. The only consideration of the seven factors enumerated in section 61.08(2) made by the trial court were that the parties had been married for ten years and that their “standard of living” had been “supported in large part by the husband’s income.” This analysis falls, far short of the legislative directive to make “findings of fact relative to the factors enumerated in subsection (2) supporting an award ... of alimony.” On remand, the court is instructed to make such findings. See Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993); Moreno v. Moreno, 606 So. 2d 1280 (Fla. 5th DCA 1992).
In particular, the court should determine the husband’s current income because it is his current income (or income expected in the immediate future) that constitutes his ability to pay. The court instead found that the husband’s average income over the past four years would justify the award made in this case. Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today. The uncontro-verted testimony at trial is that the husband’s income has been reduced. If the court is going to impute income not apparent from the record, it must indicate the amount and source. Hogle v. Hogle, 535 So. 2d 704 (Fla. 5th DCA 1988). See also Wendroff v. Wendroff, 614 So. 2d 590 (Fla. 1st DCA 1993).
Concerning the wife’s inheritance, the court failed to designate as marital or non-marital (or to explain why it failed to do so) the $39,000 the wife inherited but subsequently commingled into the parties’ joint account (which account was used for various family purchases). Such a designation is required by 61.075(3), Florida Statutes (1991). See also Bussey v. Bussey, 611 So. 2d 1354 (Fla. 5th DCA 1993).
As the court stated in Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992):
The undisputed facts show that the wife deposited the proceeds into a joint account — indeed, the only such account maintained by the parties. There, each party drew upon those funds and others deposited over the years. Florida law is clear that funds so intermingled lose their separate identity and become untraceable. (Citation omitted). Such intermingling creates a presumption that she made a gift to her husband of an undivided one-half interest in the funds on deposit.
In our case, while the husband at one time admitted that the inheritance was the wife’s money (as, indeed, it was), the statement was made at the time the wife deposited the funds into her own separate account. The record shows she later withdrew these funds from her separate account and deposited them into the parties’ joint account. Once she commingled the funds, the presumption of a gift arose and she had the burden of rebutting that presumption. If she met that burden, the court should tell us so — and how she met it.
REVERSED and REMANDED.
BROCK, N., Associate Judge, concurs.
DIAMANTIS, J., concurs in result only, with opinion.
DIAMANTIS, Judge,
concurring specially.
I concur in the result reached in this case.
The record is not clear regarding whether the trial court awarded permanent alimony based upon the husband’s past gross earnings or the husband’s net earnings. A trial court may, in its discretion, impute income to the husband based on past net earnings and earning potential. Warren v. Warren, 629 So. 2d 1079 (Fla. 3d DCA 1994). See also Bascuas v. Bascuas, 538 So. 2d 520 (Fla. 3d DCA 1989); Bielecki v. Bielecki, 505 So. 2d 546 (Fla. 3d DCA), rev. dismissed, 511 So. 2d 297 (Fla.1987). It constitutes error, however, to calculate the husband’s imputed income based on the husband’s past gross earnings rather than on the husband’s previous net income. Warren; Wendroff v. Wendroff, 614 So. 2d 590 (Fla. 1st DCA 1993).
Even though the husband in the present case has not assigned this matter as error, I further agree that the majority opinion in Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993), rev. granted, 634 So. 2d 625 (Fla.1994), from which I dissented but am obliged to follow, requires that a trial court make findings concerning all the factors enumerated in section 61.08(2), Florida Statutes (1993), and that this court will reverse any award of alimony if all of the factors are not given explicit consideration. In the present case, the trial court considered the length of the marriage and the respective average incomes of the parties for a period of four years prior to separation, and the trial court’s judgment reflects that there were two children born of the marriage. On remand, the trial court should specifically address all seven factors enumerated in section 61.08(2) and may consider, pursuant to the statute, “any other factors necessary to do equity and justice between the parties.” I agree with the majority that on remand the trial court is not precluded from awarding alimony.
On remand, the trial court should receive additional evidence regarding the respective financial positions of the parties. The husband testified at trial that in 1992, the year of the divorce, his income dropped significantly. His financial records and federal tax return for 1992 should now be available, which should clarify the issue of the husband’s true income.
I also concur with the majority that on remand the trial court should make “specific written findings of fact” regarding whether the wife’s inheritance is a non-marital or marital asset as required by section 61.-075(3), Florida Statutes (1993). See Bussey v. Bussey, 611 So. 2d 1354 (Fla. 5th DCA 1993). I further agree that the trial court should make a finding regarding whether the wife has met her burden of proving that no gift of the inheritance was intended when it was commingled with marital funds and held in a joint account. Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992). See also Robertson v. Robertson, 593 So. 2d 491 (Fla.1991). I would not, however, require the trial court to detail the evidence supporting its conclusion because no such requirement is contained in either Robertson or Amato or in section 61.075(7). Of course, such detail would aid this court in any subsequent review.
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Cited By (36 total)
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Bart L. Segall v. Segall, 708 So. 2d 983 (Fla. 4th DCA 1998)…permanent alimony award. See Benters v. Benters, 655 So. 2d 1243, 1244 (Fla. 5th DCA 1995)(eourt required to make sufficient findings of fact relative to statutory factors in section 61.08(2) to support permanent alimony award); Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994)(same). Therefore, [*988] we reverse the award of permanent alimony to the Wife and remand to the trial court with instructions to either make sufficient findings of fact to enable this court to determine the appropriateness…
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Warner v. Warner, 692 So. 2d 266 (Fla. 5th DCA 1997)…ng does not mean the husband was voluntarily underemployed when he was forced by circumstances to open his own agency. The absence of specific findings or record evidence to support the imputation of income mandates reversal. See Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994) (“If the court is going to impute income not apparent from the record, it must indicate the amount and source.”) (citing Hogle v. Hogle, 535 So. 2d 704 (Fla. 5th DCA 1988)); see also Vaccaro v. Vaccaro, 677 So. 2d 918, 923 (…
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Alpert v. Alpert, 886 So. 2d 999 (Fla. 2d DCA 2004)…must be based “on appropriate findings concerning the basis for imputing income and the amount imputed.” Nieboer v. Nieboer, 816 So. 2d 1259, 1261 (Fla. 2d DCA 2002); see also Cooper v. Cooper, 639 So. 2d 153 (Fla. 2d DCA 1994); Woodard v. Woodard, 634 So. 2d 782 (Fla. 5th DCA 1994). In this case, we conclude that competent, substantial evidence in the record supports the trial court’s decision to impute income of $400,000 annually to the Husband. Although the trial court’s findings in this regard are not as…
Previewing 3 of 36 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Robertson v. Robertson, 593 So. 2d 491 (Fla. 1991)
- Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993)
- Bussey v. Bussey, 611 So. 2d 1354 (Fla. 5th DCA 1993)
- Wendroff v. Wendroff, 614 So. 2d 590 (Fla. 1st DCA 1993)
- Hogle v. Hogle, 535 So. 2d 704 (Fla. 5th DCA 1988)
- Gilda Amato v. Amato, 596 So. 2d 1243 (Fla. 4th DCA 1992)
- Sweet v. Fin. Fed. Sav. & Loan Ass'n of Dade Cnty., 606 So. 2d 1280 (Fla. 5th DCA 1992)
- Moreno v. Moreno, 606 So. 2d 1280 (Fla. 5th DCA 1992)
- Bielecki v. Bielecki, 505 So. 2d 546 (Fla. 3d DCA 1987)
- Martin v. State, 629 So. 2d 1079 (Fla. 3d DCA 1994)