EDWARD JOSEPH BREITENBACH, APPELLANT,
v.
JANET H. BREITENBACH, APPELLEE
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In this divorce case, the Florida Second District Court of Appeal reversed a trial court's award of $2,000 monthly temporary alimony to the wife, finding insufficient evidence to support findings regarding the wife's need for alimony and the husband's ability to pay.
The court reversed the temporary alimony award because the record does not support findings regarding the wife's need for alimony or the husband's ability to pay. The trial court erred in ordering the husband to pay alimony when his monthly expenses already exceed his income and in suggesting he mortgage nonmarital property to meet the obligation.
[1] Temporary awards of support and alimony must be supported by evidence demonstrating the need for support and the paying spouse's ability to pay.
[2] A spouse's need for temporary alimony is not established when the spouse receives generous financial support from family and friends and has no personal living expenses.
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Join FLexlaw to unlock all legal intelligence“such awards must be supported by evidence which demonstrates the need for support and the paying spouse's ability to pay”
Establishes the legal standard that temporary alimony awards require evidentiary support for both need and ability to pay
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Join FLexlaw to unlock all legal intelligenceThe wife, age 53 and medically disabled, lives with her aunt since separation and receives $210 monthly government stipend with medical expenses cover…
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STRINGER, Judge.
Edward Breitenbach (the Husband) challenges a nonfinal order awarding Janet Breitenbach (the Wife) $2000 in monthly temporary alimony. Because the record does not support the trial court’s findings as to the Wife’s need for alimony and the Husband’s ability to pay, we reverse.
Temporary awards of support and alimony are discretionary. Calhoun v. Calhoun, 627 So. 2d 611 (Fla. 2d DCA 1993). Nevertheless, such awards must be supported by evidence which demonstrates the need for support and the paying spouse’s ability to pay. Fields v. Fields, 533 So. 2d 922 (Fla. 2d DCA 1988); Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA 1967).
The Wife, age fifty-three at the time of the temporary hearing, produced evidence to establish that she is medically disabled and unable to work. However, the evidence adduced at the hearing also established that she enjoys very generous financial support from family and friends and has lived with an aunt since the parties’ separation. The Wife has no living expenses of her own and, in fact, receives a government stipend of $210 per month. Moreover, her medical expenses are covered by a government insurance program.
The Wife’s financial affidavit reflects monthly expenses which total $4196. However, she testified that at the time of the hearing she was not paying any of those expenses. She admitted that her attorney completed the affidavit and estimated the monthly expenses. She further admitted having no personal knowledge as to what a dwelling of her own might cost. The Wife has absolutely no monthly expenses that are documented in the record. Her testimony does not even disclose that she is obligated to or has been paying her aunt a monthly contribution toward household expenses.
As for the Husband, his financial affidavit shows a gross monthly retirement income of approximately $800. The affidavit also indicates that his monthly expenses exceed his income by more than $100. In spite of the obvious shortfall in the Husband’s monthly budget and the absence of evidence to establish a basis for imputing additional income to the Husband, the court ordered him to pay the Wife $2000 in temporary alimony. While doing so, the court acknowledged the hardship that this obligation would create for the Husband, but in its order the court suggested that he mortgage nonmarital property in order to pay the temporary alimony award. This was also error. See Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992) (finding general master’s finding of present ability to pay based on spouse’s ability to obtain a loan “outrageous”).
Because there is no evidence in the record to support the circuit court’s temporary alimony award of $2000, we reverse and remand for further proceedings.
Reversed.
CASANUEVA and KELLY, JJ„ Concur.
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Driscoll v. Celeste Driscoll, 915 So. 2d 771 (Fla. 2d DCA 2005)…ny that her [projected] need established by the evidence is only [$]7,448 a month. The trial court found that the Husband had the ability to pay $6000 per month in alimony. Temporary awards of alimony are discretionary. Breitenbach v. Breitenbach, 838 So. 2d 1266 (Fla. 2d DCA 2003). In fact, temporary awards are among the areas where trial judges have the very broadest discretion and where appellate courts are very reluctant to interfere. Pedraja v. Garcia, 667 So. 2d 461 (Fla. 4th DCA 1996). However, tempor…
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Wendel v. Wendel, 875 So. 2d 820 (Fla. 2d DCA 2004)…to pay the order out of his own assets. Mr. Wen-del is not required to borrow beyond his means of repayment in order to pay a support order which is excessive because it is not based on his actual financial resources. See Breitenbach v. Breitenbach, 838 So. 2d 1266, 1268 (Fla. 2d DCA 2003), citing Perez v. Perez, 599 So. 2d 682, 683 (Fla. 3d DCA 1992) (stating that theory that husband had a present ability to pay an order by obtaining a loan from relatives was “outrageous”). III. CONCLUSION The order of Dece…
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Nation v. Boling, 206 So. 3d 810 (Fla. 1st DCA 2016)…particularly true in Nation’s case, where the assets at issue are his home and vehicle and are of minimal value. To the extent the judge believed Nation’s family would provide money for his release, it was improper. See Breitenbach v. Breitenbach, 838 So. 2d 1266, 1268 (Fla. 2d DCA 2003) (stating that theory that husband had a present ability to pay an order by obtaining a loan from relatives was “outrageous”) (citing Perez v. Perez, 599 So. 2d 682, 683 (Fla. 3d DCA 1992)). Moreover, Nation’s past ability to…
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
- Perez v. Perez, 599 So. 2d 682 (Fla. 3d DCA 1992)
- Novack v. Novack, 196 So. 2d 499 (Fla. 3d DCA 1967)
- Fields v. Fields, 533 So. 2d 922 (Fla. 2d DCA 1988)
- Calhoun v. Calhoun, 627 So. 2d 611 (Fla. 2d DCA 1993)