LAWRENCE GAUDETTE, APPELLANT,
v.
SYBLE GAUDETTE, APPELLEE
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Lawrence Gaudette appeals a final judgment awarding permanent periodic alimony of $1,000 per month and two-thirds of attorney's fees. The appellate court affirmed the alimony award but reversed the attorney's fees award, finding the parties had relatively equal financial positions that did not support a finding of substantially greater ability to pay.
The court affirmed the $1,000 monthly alimony award because the parties' monthly incomes were nearly equal after the alimony payment, but reversed the attorney's fees award because the record did not support a finding that Lawrence had substantially greater ability to pay fees given their relatively equal financial positions.
[1] A trial court's calculation of a party's income for purposes of alimony and attorney's fees must account for deductions for which the party is no longer responsible.
[2] A party seeking to introduce evidence of the federal tax effects on income for purposes of alimony and attorney's fees must present that evidence to the trial court.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Although we continually urge that litigants present evidence of the federal tax affect on the parties' respective incomes, fault for failure to do so cannot be placed upon the trial court when the evidence is not presented to it.”
Establishes that the court will not fault the trial court for not considering federal tax effects on income when such evidence is not presented by the parties.
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Join FLexlaw to unlock all legal intelligenceLawrence and Syble Gaudette were married in 1986 and were both approximately sixty and fifty years old at trial. Syble is a licensed practical nurse r…
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PETERSON, J.
Lawrence Gaudette appeals a final judgment of dissolution of marriage awarding permanent pel-iodic alimony of $1,000 per month and two-thirds of Syble Gaudette’s attorney’s fees.1
Lawrence and Syble were married in 1986. He was sixty and Syble was fifty years of age at the time of trial of their dissolution proceedings. Syble is a licensed practical nurse, but has suffered a litany of ailments that allow her to receive $1,135 per month in Social Security benefits.
The final judgment accurately reflects Lawrence’s gross annual salary and is supported by a record that includes his Federal Wage and Tax Statement Form W-2. That figure of $51,805.98 agrees with Lawrence’s Family Law Amended Financial Affidavit that indicates a monthly gross income of $4,317.17, or an annual income of $51,806.04 (12 x $4,317.17). His monthly deductions shown on his affidavit total $1,966.71, but must be adjusted upward for the alimony payments of $430 and dependent medical payments of $180.20 for which he is no longer responsible. The adjusted amount of $2,960.66 [$4,317.17 — • ($1,966.71 — $430—$180.20) ] can then be used to compare the relative monthly income of the parties:
Wife Husband
Social Security Wages $1,135 $2,961
Alimony 1,000 (1,000)
$2,135 $1,961
Lawrence argued that his monthly income was $2,3832 per month rather than $2,961 as calculated above, but he included in his computation $430 per month temporary alimony and $180.20 per month for health insurance for dependents.
Those computations indicate that Lawrence, the wage earner, has less remaining income than his dependent ex-wife after alimony at $1,000 per month is paid, but does not include the reduction of federal income taxes that will be available after he deducts on his federal income tax return the alimony payments made to Sy-ble. Although we continually urge that litigants present evidence of the federal tax affect on the parties’ respective incomes, fault for failure to do so cannot be placed upon the trial court when the evidence is not presented to it. In this instance, the monthly income is almost equal and we will not disturb the award of alimony nor the amount.
The equality of monthly income available to each of the parties affects the trial court’s finding that Lawrence has a substantially greater ability than Syble to pay attorney’s fees, costs and expenses resulting from the litigation. We cannot find other record support for any resources available to the husband that would place him in a substantially greater position to pay those fees. Accordingly, we vacate paragraph'll of the Final Judgment of Dissolution of Marriage that awards attorney’s fees to the wife and find that their relatively equal financial positions require that each share their respective fees, costs and expenses.
AFFIRMED IN PART; REVERSED IN PART.
SAWAYA, C.J., and PLEUS, J., concur. . Other issues are raised on appeal which we find have no merit.
. The Wife calculated Lawrence’s monthly income at $3,023.78.
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Derrevere v. Gena Derrevere, 899 So. 2d 1152 (Fla. 4th DCA 2005)…ive increases in earnings, nothing more. At the time of the final judgment, which is the time when the ability to pay must be determined, the parties were financially equal. The attorney’s fee award should have been denied. See Gaudette v. Gaudette, 890 So. 2d 1161 (Fla. 5th DCA 2004); Avery v. Avery, 548 So. 2d 865 (Fla. 4th DCA 1989). We, therefore, reverse and remand with directions for the trial court to enter an amended final judgment in accordance with this opinion. REVERSED AND REMANDED with direction…
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Galligar v. Terrie Galligar, 77 So. 3d 808 (Fla. 1st DCA 2011)…trial court has equalized incomes through its alimony award, the trial court abuses its discretion in awarding attorney’s fees. Vitalis, 799 So. 2d at 1133 (citing Naugle v. Naugle, 632 So. 2d 1146 (Fla. 5th DCA 1994)); accord Gaudette v. Gaudette, 890 So. 2d 1161, 1162 (Fla. 1st DCA 2004). For these reasons, we reverse the trial court’s award of attorney’s fees to the former wife. REVERSED AND REMANDED. HAWKES, J., concurs; BENTON, C.J., concurs in judgment.…
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