DONNA JEAN JOHNSON-GAINER, APPELLANT,
v.
RILEY MAXWELL GAINER, JR., APPELLEE
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In this consolidated appeal, the former wife challenges a final judgment of dissolution of marriage and denial of additional attorney's fees. The appellate court reverses and remands, finding that the trial court failed to make adequate findings of fact regarding the former husband's income, non-marital assets, and his use of marital funds to satisfy temporary support obligations.
The trial court's final judgment is reversed except for the portions dissolving the marriage and adjudicating child custody. The order denying additional attorney's fees is also reversed. The case is remanded for entry of an amended final judgment with requisite findings of fact regarding the former husband's income, non-marital assets, and the propriety of using marital assets for temporary support payments.
[1] A trial court must make adequate findings of fact before approving a party's payment of temporary support obligations from a marital asset.
[2] A party may not satisfy temporary support obligations from a marital asset unless the party proves, and the court finds, that no other means exist to pay such support.
Previewing 2 of 5 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“The former husband's temporary support obligation could not be satisfied from a marital asset unless the former husband established through substantial competent evidence, and the trial court found, that he had no other means to pay such support except by invading a marital asset.”
Establishes the legal standard for using marital assets to pay temporary support obligations.
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Join FLexlaw to unlock all legal intelligenceThe case involves a dissolution of marriage where the former husband paid his temporary support obligation from the Schwab marital account and made ro…
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PLEUS, C.J.
In this consolidated appeal, the former wife appeals from a final judgment of dissolution of marriage and a post judgment order denying her request for additional attorney’s fees. We have thoroughly reviewed the record and conclude that the following deficiencies require reversal and remand for further consideration.
The final judgment of dissolution is deficient in that it approves the former husband’s payment of his temporary support obligation from a marital asset, the Schwab marital account, without adequate findings of fact. The former husband’s temporary support obligation could not be satisfied from a marital asset unless the former husband established through substantial competent evidence, and the trial court found, that he had no other means to pay such support except by invading a marital asset. See Karimi v. Karimi, 867 So. 2d 471 (Fla. 5th DCA 2004). In the final judgment, the trial court must first determine whether the former husband had any other assets, and then specify the evidence it relies upon in connection with its determination of that issue. Further, the trial court must address the equivalent temporary support payments which the former husband admits he routinely made to himself from the Schwab marital account. Under no circumstances could these payments be deemed proper unless the former husband established with substantial competent evidence, and the trial court found, that he had no other means to support himself. Even then, only withdrawals which were minimally necessary to meet his reasonable living expenses would have been proper. Karimi Any sums beyond that amount must be identified and allocated to the former husband’s share of the equitable distribution. Remand for the trial court to make requisite findings is necessary.
The final judgment additionally lacks requisite findings of fact as to the former husband’s monthly income and as to value of the former husband’s substantial non-marital assets. Both findings are essential to consideration of the support issues involved in this litigation. See Saporito v. Saporito, 831 So. 2d 697 (Fla. 5th DCA 2002); Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002); Ondrejack v. Ondrejack, 839 So. 2d 867 (Fla. 4th DCA 2003). See also Pinder v. Pinder, 911 So. 2d 870 (Fla. 2d DCA 2005). Absent these required findings, it is premature for this Court to pass upon the' propriety of the awards of child support, rehabilitative alimony and denial to the former wife of additional attorney’s fees.
We have considered the remaining issues and conclude they do not merit discussion.
The final judgment of dissolution is reversed except for that portion which dissolves the marriage and adjudicates the issue of child custody. The order denying additional attorney’s fees is also reversed. The cause is remanded for entry of an amended final judgment which contains the requisite findings of fact and for entry of an amended order on attorney’s fees.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
MONACO and TORPY, JJ„ concur.
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Steedman v. Chenoweth, 27 So. 3d 78 (Fla. 1st DCA 2009)…more than just necessities and attorney’s fees.* A spouse may not deplete marital assets prior to a dissolution hearing unless he or she can show the withdrawals were minimally necessary to meet reasonable living expenses. Johnson-Gainer v. Gainer, 921 So. 2d 798, 798-99 (Fla. 5th DCA 2006); Mobley v. Mobley, 920 So. 2d 97, 102 (Fla. 5th DCA 2006). While the gold was “non-marital” rather than “marital” property, a spouse may not deplete the other spouse’s non-marital property prior to the dissolution hearing…
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Elisia R. Tummings v. Francois, 82 So. 3d 955 (Fla. 2d DCA 2011)…stimony because it shows that her monthly expenses outweigh her income by at least $2200 even without considering the litigation expenses and child support the wife was ordered to pay during the dissolution proceedings. See Johnson-Gainer v. Gainer, 921 So. 2d 798, 798 (Fla. 5th DCA 2006) (recognizing that a marital asset may be used to pay a temporary support obligation when there is competent, substantial evidence that there are no other means to pay such support). During the pen-dency of the dissolution pr…
Authorities Cited
- Ondrejack v. Ondrejack, 839 So. 2d 867 (Fla. 4th DCA 2003)
- Arizona L. Sumlar v. Sumlar, 827 So. 2d 1079 (Fla. 1st DCA 2002)
- Milan Todorovic v. Arctic AIR OF Cent. Fla. & Am. All-Risk Administrators, 867 So. 2d 471 (Fla. 1st DCA 2004)
- Saporito v. Saporito, 831 So. 2d 697 (Fla. 5th DCA 2002)
- Pinder v. Jacquelyn Pinder, 911 So. 2d 870 (Fla. 2d DCA 2005)