JOSE A. ALMODOVAR, APPELLANT,
v.
LUCIA ALMODOVAR, APPELLEE
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Jose A. Almodovar appeals a final dissolution judgment in a divorce case, challenging the trial court's awards of alimony, life insurance, tax treatment of alimony payments, and classification of a debt as non-marital. The appellate court affirms the alimony award but reverses and remands the amount, reverses the insurance requirement, reverses the tax ruling, and affirms the debt classification.
The court affirms the award of alimony but reverses the amount as exceeding the former husband's ability to pay based on the trial court's own findings of income, and remands for reconsideration. The court reverses the life insurance requirement because the former husband lacks disposable income to pay for it. The court reverses the tax ruling, holding that alimony should be taxable to the recipient and deductible by the payer under standard federal tax treatment. The court affirms the classification of the $9,000 loan as a non-marital liability.
[1] A trial court's alimony award may be reversed if it exceeds the payor's ability to pay based on their income.
[2] A trial court may impute income to a party when calculating alimony, but must make appropriate findings to support such imputation.
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Join FLexlaw to unlock all legal intelligence“As the judgment now reads, the alimony award impermissibly exceeds the former husband's ability to pay, based on his income as found by the trial court.”
Establishes the primary basis for reversal of the alimony amount—that it exceeded the husband's ability to pay according to the trial court's own income findings.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a final dissolution judgment in a divorce case between Jose A. Almodovar and Lucia Almodovar. The court awarded the former wif…
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SHEVIN, Judge.
Jose A. Almodovar appeals a final dissolution judgment asserting errors in the trial court’s alimony award, award of insurance for the former wife’s benefit, order that the former husband pay the tax on the alimony, and the court’s failure to include a debt incurred by the former husband as a marital liability. We affirm in part, reverse in part, and remand for further proceedings.
We affirm the portion of the judgment awarding the former wife alimony. “In the absence of a transcript, we are unable to entertain the husband’s argument that the trial court abused its discretion in ordering permanent alimony.” Etesam v. Chasebi, 751 So. 2d 1261, 1261 (Fla. 3d DCA 2000), (citing Applegate v. Barnett Bank, 377 So. 2d 1150, 1151-52 (Fla.1979)). The final judgment demonstrates that the court applied the correct legal standard. See § 61.08(2), Fla. Stat. (1997); Canakaris v. Canakaris, 382 So. 2d 1197, 1201-02 (Fla.1980). We are aware of the former husband’s strenuous assertions that he did not consent to trial on this issue.
However, the dissolution judgment states, “At the final hearing, the counsel for the Husband recognized that alimony and equitable distribution were the issues to be resolved by the Court.” (Emphasis added). And, in the absence of a transcript, we decline to reverse the court’s finding that this issue was tried by consent. See, e.g., Walt v. Walt, 596 So. 2d 761 (Fla. 1st DCA 1992); Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987).
However, we reverse the amount of the award and remand for the trial court to revisit this issue. As the judgment now reads, the alimony award impermissibly exceeds the former husband’s ability to pay, based on his income as found by the. trial court. Canakaris, 382 So. 2d at 1201-02. On remand, the trial court shall consider whether to reduce the alimony award, or, if the court, sub silencio, imputed income to the former husband in its original calculation, it shall make the appropriate findings to support an imputation of income.
In keeping with our holding, that the alimony award amount exceeds the former husband’s income as found by the trial court, we also reverse the court’s order that the former husband procure life insurance for the former wife’s benefit. Although the court has discretion to award insurance to protect the alimony award, see Sobelman v. Sobelman, 541 So. 2d 1153 (Fla.1989), in this case it appears that the former husband has no disposable income with which to pay for this insurance. See § 61.08(3), Fla. Stat. (1999); Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000).
On remand, however, if the court determines that the former husband already has such insurance, as represented at oral argument, and/or the court finds former husband has the ability to pay for same, the court may reinstate that portion of the judgment.
We turn next to the court’s pronouncement that the former husband “shall be responsible for payment of taxes on alimony payments but shall be entitled to applicable deductions.” The court erred in so ruling. The usual treatment of alimony is to make the alimony taxable to the recipient and deductible by the payer. See generally Rihl v. Rihl, 727 So. 2d 272 (Fla. 3d DCA 1999); Garcia v. Garcia, 696 So. 2d 1279 (Fla. 2d DCA 1997).
If the trial court wanted to avoid burdening the former wife with the tax consequences of the alimony payments the court has the discretion to provide that “the payor [former husband] will not deduct the alimony payments so that the payee [former wife] may then exclude the payments from gross income.” Brenda M. Abrams, Family Law § 38.23(2)(d) (1999), citing Temp. Treas. Reg. § 1.71-lT(b), Q & A 8.
As to the former husband’s last point, we find no error in the trial court’s ruling to categorize the $9,000 loan, bor rowed by the former husband upon the parties separation, as a non-marital liability. The final judgment reflects that “[t]he husband recognized on his financial affidavit [his] sole responsibility for [this] liability.” In the absence of a transcript, we will not disturb this finding. See Applegate.
Affirmed in part, reversed in part, and remanded with directions.
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Rykiel v. Rykiel, 795 So. 2d 90 (Fla. 5th DCA 2000)…§ 71 and 26 C.F.R. § 1.71-1T, as a whole, convinces us that only the parties may agree to this in a written document, or on the record before the trial judge, which would be reduced to judgment. The dicta cited by appellee in Almodovar v. Almodovar, 754 So. 2d 861 (Fla. 3d DCA 2000), is based upon 26 C.F.R. § 1.71-1T.…
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Rykiel v. Rykiel, 838 So. 2d 508 (Fla. 2003)…SHAW, Senior Justice. We have for review Rykiel v. Rykiel, 795 So. 2d 90 (Fla. 5th DCA 2000), which expressly and directly conflicts with Almodovar v. Almodovar, 754 So. 2d 861 (Fla. 3d DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We quash Rykiel, as explained herein. I. FACTS Stephen Rykiel (“husband”) appealed the final judgment in a divorce proceeding. The Fifth District Court of Appeal (the “Fi…1 / 2
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Rashotsky v. Rashotsky, 782 So. 2d 542 (Fla. 3d DCA 2001)…argues that while providing an increased short term cash flow, the court’s change in position worked a significant disadvantage overall, costing, by the court expert’s calculation, some additional $13,000 a year in taxes. In Almodovar v. Almodovar, 754 So. 2d 861, 862 (Fla. 3d DCA 2000), we observed, the usual treatment of alimony is to make the alimony taxable to the recipient and deductible by the payor. See generally Rihl v. Rihl, 727 So. 2d 272 (Fla. 3d DCA 1999); Garcia v. Garcia, 696 So. 2d 1279 (Fla.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Goldie Sobelman v. Sobelman, 541 So. 2d 1153 (Fla. 1989)
- Carter v. Carter, 504 So. 2d 418 (Fla. 5th DCA 1987)
- Walt v. Walt, 596 So. 2d 761 (Fla. 1st DCA 1992)
- Zimmerman v. Zimmerman, 755 So. 2d 730 (Fla. 1st DCA 2000)
- Rihl v. Tammi D. Rihl, 727 So. 2d 272 (Fla. 3d DCA 1999)
- Chicago Title Ins. Co. v. Hollander, 696 So. 2d 1279 (Fla. 3d DCA 1997)
- Roseann G. Garcia v. Garcia, 696 So. 2d 1279 (Fla. 2d DCA 1997)