BONNIE A. MCLEOD, APPELLANT,
v.
BRUCE P. MCLEOD, APPELLEE
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The former wife appeals a final judgment dissolving the marriage and distributing assets, including an alimony award. The court reversed the alimony award because the trial court imputed investment income based on an unsupported assumption about IRA returns, but affirmed the dissolution and asset distribution.
The court reversed the alimony award and remanded for reconsideration because the trial court imputed income based on facts not presented at trial, which constitutes an abuse of discretion. The court affirmed the dissolution of marriage and equitable distribution of marital assets.
[1] An alimony award is reviewed under an abuse of discretion standard.
[2] When awarding permanent periodic alimony, a court must consider statutory factors including the payee spouse's needs and the payor spouse's ability to pay.
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Join FLexlaw to unlock all legal intelligence“The trial court may not, as was done here, simply adopt purported 'facts' submitted to it in an argument in a legal memorandum or proposed judgment.”
Establishes that trial courts cannot base factual findings on unsupported suggestions in counsel's legal arguments.
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Join FLexlaw to unlock all legal intelligenceThe trial court awarded the appellant a portion of an IRA in equitable distribution and determined her income for alimony purposes by imputing investm…
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PER CURIAM.
Appellant/former wife appeals the trial court’s final judgment dissolving the parties’ marriage, distributing their assets, and awarding alimony. We reverse and remand for the trial court to reconsider its alimony award due to the imputation of investment income to Appellant. We affirm all other issues raised on appeal.
A trial court’s alimony award is reviewed under the abuse of discretion standard. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202-03 (Fla.1980). When awarding permanent periodic alimony, the court must consider the statutory factors set out in section 61.08, Florida Statutes (2006), including the payee spouse’s needs and the payor spouse’s ability to pay. Id. at 1201.
Appellant’s income for purposes of awarding alimony was determined on the basis of facts not presented at trial. The trial court imputed investment income by applying an assumption about the rate of return Appellant could yield on the portion of the IRA awarded to her in the equitable distribution of marital assets. The difficulty is that the assumption was not based on evidence presented at trial. The only reference in the record on appeal to the 6% return adopted by the trial judge was a suggestion by Appellee’s counsel. “The trial court may not, as was done here, simply adopt purported ‘facts’ submitted to it in an argument in a legal memorandum or proposed judgment. See Smith v. Smith, 934 So. 2d 636, 640-41 (Fla. 2d DCA 2006) (holding former husband’s demonstrative aid and legal argument to be insufficient to support pension calculation).” Craig v. Craig, 982 So. 2d 724, 730 (Fla. 1st DCA 2008).1 Where competent, substantial evidence does not support the trial court’s factual finding, the trial court abuses its discretion. Craig, 982 So. 2d at 727.
We affirm the dissolution of marriage and the equitable distribution of marital assets. We reverse the award of alimony and remand for the trial court to reconsider this issue.
Affirmed in part, reversed in part, and remanded.
BAEFIELD, KAHN, and BENTON, JJ., concur. . We also note that there was no evidence regarding the possible tax and penalty consequences to Appellant of immediately withdrawing funds from this asset.
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- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Gillian J. Smith v. Smith, 934 So. 2d 636 (Fla. 2d DCA 2006)
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