LEONARD BOMWELL, APPELLANT,
v.
MARGARET BOMWELL, APPELLEE
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In this dissolution of marriage case, the husband appealed the trial court's award of permanent periodic alimony, attorney's fees, and aspects of equitable distribution. The appellate court reversed the alimony award and certain distribution determinations due to insufficient findings and legal error, but affirmed other aspects.
The court reversed the alimony award because the trial court failed to make required statutory findings and appeared to abuse its discretion in setting an amount exceeding the husband's ability to pay. The court reversed the determination of special equity in the home and the pension valuation methodology. The court affirmed that failure to value unproven personal property items was harmless error. The court reversed the attorney's fees award as a consequence of reversing other determinations.
[1] A trial court must make findings as to statutory factors when awarding permanent periodic alimony to allow for meaningful appellate review.
[2] An alimony award may be an abuse of discretion if it exceeds the payor's ability to pay based on their net income.
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Join FLexlaw to unlock all legal intelligence“The trial court erred by failing to make findings as to the factors enumerated in section 61.08(2), Florida Statutes (1993), precluding meaningful appellate review of the alimony award.”
Establishes that statutory findings are required for alimony awards to permit appellate review.
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Join FLexlaw to unlock all legal intelligenceThe parties' twenty-one year marriage was being dissolved. The trial court awarded permanent periodic alimony to the wife and attorney's fees, and mad…
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PER CURIAM.
This ease arises from the dissolution of the parties’ twenty-one year marriage. The husband challenges the amount of alimony awarded, the entitlement to attorney’s fees, and several aspects of the scheme of equitable distribution. We reverse in part, as set forth below.
As to the award of permanent periodic alimony, we reverse. The trial court erred by failing to make findings as to the factors enumerated in section 61.08(2), Florida Statutes (1993), precluding meaningful appellate review of the alimony award. See § 61.08(1), Fla. Stat. (1993); cf. Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993), rev. dismissed, 641 So. 2d 408 (Fla.1994). Furthermore, even without reference to the factors in section 61.08(2), the trial court appears to have abused its discretion in determining the amount of alimony. A comparison of the trial court’s finding as to the wife’s earning ability and the evidence presented as to the husband’s net income suggests that the wife received more than the husband had the ability to pay. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). On remand the trial court should consider all of the statutory factors and make findings of fact in support of any award of alimony.
In connection with the distribution of assets, the husband also argues that the trial court erred in failing to identify and value various items of personal property taken by the wife prior to the final hearing on dissolution. However, no one presented any evidence of the value of the challenged items. While the trial court should have determined whether these were marital nor non-marital, section 61.075(3)(b), Florida Statutes (1993), only requires the valuation of “significant assets.” When the parties fail to present evidence as to the value of an asset, the trial court may presume that the asset is not of significant value, and there is no error in failing to include it in the equitable distribution scheme. Therefore, any error in failing to identify the assets here is harmless.
The trial court erred, however, in finding that the wife had special equity in the marital home where the wife presented no evidence to rebut the presumption that she had intended the funds to be a gift. See § 61.075(5)(a)5, Fla. Stat. (1993); Ray v. Ray, 624 So. 2d 1146 (Fla. 1st DCA 1993). In addition, the trial court erred in valuing the husband’s pension without providing a reason for its use of a valuation date other than the date of the filing of the petition for dissolution. See § 61.075(6), Fla. Stat. (1993); Dyson v. Dyson, 597 So. 2d 320, 323 (Fla. 1st DCA 1992).
Because of our reversal of other parts of the final judgment, we also reverse the determination that the wife was entitled to a contribution for attorney’s fees for reconsideration after the court revisits its final judgment.
We affirm the remaining points on appeal.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
GLICKSTEIN, WARNER and POLEN, JJ., concur.
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Nelson v. Nelson, 721 So. 2d 388 (Fla. 4th DCA 1998)…d lacks competent substantial evidence to support the court’s valuation. We take this opportunity to reiterate that section 61.075(3)(b), Florida Statutes (1995) requires the valuation of only “significant assets,” as we noted in Bomwell v. Bomwell, 676 So. 2d 508, 510 (Fla. 4th DCA 1996). “When the parties fail to present evidence as to the value of an asset, the trial court may presume that the asset is not of significant value, and there is no error in failing to include it in the equitable distribution sc…
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Singleton v. Singleton, 696 So. 2d 1338 (Fla. 4th DCA 1997)…. 2d 798 (Fla. 4th DCA 1994). Similarly, the propriety of permanent alimony cannot be evaluated because the final judgment does not contain those findings of fact required by section 61.08(1), Florida Statutes (1995). See, e.g., Bomwell v. Bomwell, 676 So. 2d 508 (Fla. 4th DCA 1996). Finally, in setting guideline child support, the trial court included, without explanation, $2,466 per month of income attributable to the husband’s girlfriend, with whom he lived at the time of the final hearing. Section 61.30…
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Wolf v. Wolf, 979 So. 2d 1123 (Fla. 2d DCA 2008)…me that that asset is not of significant value. In that case, the trial court does not err by failing to include that specific asset in its equitable distribution scheme. Nelson v. Nelson, 721 So. 2d 388, 389 (Fla. 4th DCA 1998); Bomwell v. Bomwell, 676 So. 2d 508, 510 (Fla. 4th DCA 1996). Here, as the Wife correctly points out, the trial court failed to value and distribute the parties’ fractional interest in the hunting cabin in Steinhatchee. However, this omission was not error because neither party prese…
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
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Kennedy v. Kennedy, 622 So. 2d 1033 (Fla. 5th DCA 1993)
- Dyson v. Dyson, 597 So. 2d 320 (Fla. 1st DCA 1992)
- Kennedy v. Kennedy, 641 So. 2d 408 (Fla. 1994)
- RAY v. RAY, 624 So. 2d 1146 (Fla. 1st DCA 1993)