RAY EDWARD WILLIAMS, APPELLANT,
v.
MARY ANN WILLIAMS, APPELLEE
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In a marital dissolution case, the husband appeals and the wife cross-appeals an order awarding temporary alimony and attorney's fees. The court reverses the alimony award due to insufficient evidence of the husband's ability to pay, affirms the attorney's fees award but reverses the payment schedule as unreasonable, and remands for further proceedings.
The alimony award must be vacated because the record lacks competent substantial evidence establishing the husband's actual income and ability to pay. The attorney's fees award is affirmed, but the portion requiring minimal monthly installment payments is reversed as unreasonable; on remand, the court must fashion a more reasonable payment schedule with larger monthly amounts or full payment.
[1] A temporary alimony award is reversible where the record lacks competent substantial evidence establishing the payor's ability to pay.
[2] On remand for determination of temporary alimony, the court must conduct an evidentiary hearing to establish the revenue of closely-held corporations and the payor's inco…
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Join FLexlaw to unlock all legal intelligence“Vacation of the award is mandated where, as here, the record is devoid of competent substantial evidence as to the husband's ability to pay.”
Establishes the legal standard requiring reversal of alimony when the record lacks evidence of ability to pay, regardless of the reasonableness of the award amount.
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Join FLexlaw to unlock all legal intelligenceRay Edward Williams and Mary Ann Williams were engaged in a dissolution action. The trial court awarded the wife temporary alimony and temporary attor…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHEVIN, Judge.
Ray Edward Williams, the husband, appeals and Mary Ann Williams, the wife, cross appeals an order awarding her temporary alimony and temporary attorney’s fees in a dissolution action. We reverse the alimony award. We affirm the fee award, in part; we reverse that portion of the fee award directing the husband to make installment payments.
Although the court did not award an outrageous amount of temporary alimony in light of the wife’s asserted needs and the husband’s voluntary payments, we are compelled to vacate the award.
The record is not a model of clarity as it lacks specific facts establishing the husband’s actual income to demonstrate that he has the ability to pay the award. Vacation of the award is mandated where, as here, the record is devoid of competent substantial evidence as to the husband’s ability to pay. See Brinkley v. Brinkley, 453 So. 2d 941, 944 (Fla. 4th DCA 1984).
On remand, in order to determine the correct award amount, the court is directed to conduct an evidentiary hearing to permit the parties to establish clearly the revenue of the parties’ closely-held corporation as well as the husband’s earned and unearned income. See Barclay v. Barclay, 554 So. 2d 1191 (Fla. 2d DCA 1989).
In so doing, the trial court must also carefully consider the parties’ lifestyle as established during the marriage. “Florida case law has long recognized that self-employed spouses, in contrast to salaried employees, have the ability to control and regulate their income. Their testimony, tax returns, and business records accordingly may not reflect their true earnings, earning capability, and net worth.” Ugarte v. Ugarte, 608 So. 2d 838, 840 (Fla. 3rd DCA 1992), cause dismissed, 617 So. 2d 322 (Fla.1993).
We affirm the order awarding temporary attorney’s fees to the wife, but we reverse that portion of the award ordering the husband to make minimal payments each month to wife’s counsel. Such minimal installment payments are unreasonable and defeat the purpose of the award. See Urbieta v. Urbieta, 469 So. 2d 930 (Fla. 3d DCA 1985); Bleakley v. Bleakley, 680 So. 2d 1048 (Fla. 4th DCA 1996). On remand, the court must fashion a more reasonable payment schedule by directing the husband to pay a larger monthly amount or to pay the amount in full.
Affirmed in part, reversed in part, and cause remanded with directions.
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Wright v. Wright, 965 So. 2d 1168 (Fla. 2d DCA 2007)…ng such a structure would discourage competent attorneys from representing clients in dissolution of marriage cases, thereby defeating the purpose of the statute providing for attorney’s fees and costs in dissolution cases. See Williams v. Williams, 697 So. 2d 1311, 1312 (Fla. 3d DCA 1997) (holding that “minimal installment payments are unreasonable and defeat the purpose of the award”). Therefore, we reverse the portion of the award of attorney’s fees and costs in the final judgment of dissolution of marriag…
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Currier v. Currier, 99 So. 3d 996 (Fla. 5th DCA 2012)…ortion of the final judgment of dissolution of marriage awarding the former wife permanent periodic alimony because the record does not contain competent, substantial evidence of the former husband’s ability to pay such an award. Morales v. Morales, 697 So. 2d 1311 (Fla. 3d DCA 1997). We also reverse the corresponding restriction on the former husband’s guardian’s access to his Bank of St. Augustine account to pay anything but permanent alimony. We affirm the remainder of the final judgment. AFFIRMED IN PART…
Authorities Cited
- Ugarte v. Ugarte, 608 So. 2d 838 (Fla. 3d DCA 1992)
- Barclay v. Barclay, 554 So. 2d 1191 (Fla. 2d DCA 1989)
- N. Am. Mortg. Invs. v. The Reef Club Condo. Ass'n, 469 So. 2d 930 (Fla. 3d DCA 1985)
- Gleason v. Gleason, 453 So. 2d 941 (Fla. 4th DCA 1984)
- Bleakley v. Bleakley, 680 So. 2d 1048 (Fla. 4th DCA 1996)
- Ford v. State, 680 So. 2d 1048 (Fla. 4th DCA 1996)