PATTI ANGELA WELCH, WIFE, APPELLANT,
v.
THOMAS FREDERICK WELCH, HUSBAND, APPELLEE

Fla. 1st DCA | 2009-11-30
No. 1D08-5670
PADOVANO and WETHERELL, JJ., concur.
22 So. 3d 153 Florida District Court of Appeal, First District (2009) Positive Treatment
Cited by 12 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

The appellate court withdrew its prior opinion and substituted a clarifying opinion regarding the former wife's appeal of the trial court's findings on her income for alimony and child support.


Holding

The appellate court granted the former wife's motion to withdraw its prior opinion and substituted a clarifying opinion, denying the motion for rehearing en banc.


Headnotes

[1] The sufficiency of the evidence to support a judgment in a non-jury trial may be raised on appeal regardless of whether an objection was made in the trial court or a moti…

[2] A ruling on a claim for permanent periodic alimony is reviewed for an abuse of discretion.

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

Facts & Procedural History

The former wife appealed the trial court's final judgment dissolving her 23-year marriage, specifically challenging the determination of her income fo…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
BROWNING, JR., EDWIN B., Senior Judge.

REVISED OPINION ON APPELLANT’S MOTIONS FOR WITHDRAWAL OF OPINION, CLARIFICATION, REHEARING, OR REHEARING EN BANC

BROWNING, JR., EDWIN B., Senior Judge.

Patti Angela Welch, the former wife, has moved for a withdrawal, clarification, rehearing, or rehearing en banc of our previous opinion in Welch v. Welch, 34 Fla. L. Weekly D1503 (Fla. 1st DCA July 24, 2009). We grant relief to the extent that we withdraw our prior opinion and substitute the following clarifying opinion. The motion for rehearing en banc is denied.

The former wife appeals certain findings of fact and conclusions of law made by the trial court in its final judgment dissolving her 23-year marriage to the appellee, Thomas Frederick Welch. Florida Rule of *155Civil Procedure 1.530(e) states in pertinent part:

When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

Thus, we review the trial court’s determination of the former wife’s income for purposes of awarding alimony and child support in light of the former wife’s contention that no competent substantial evidence in the record supports the sums.

On the former wife’s claim for permanent periodic alimony pursuant to section 61.08, Florida Statutes (2007), the trial court awarded her only $1.00 a year in nominal permanent alimony, thereby reserving jurisdiction to revisit this issue if the circumstances should justify it. See Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001). The parties’ 23-year marriage is considered “long-term,” raising a rebuttable presumption of entitlement to alimony. See Rabbath v. Farid, 4 So.3d 778, 784 (Fla. 1st DCA 2009) (revised opinion on the appellee’s motion for rehearing). A ruling on a claim for permanent periodic alimony is reviewed for an abuse of discretion. See Alcantara v. Alcantara, 15 So.3d 844, 845-47 (Fla. 3d DCA 2009); Green v. Green, 463 So.2d 510 (Fla. 1st DCA 1985). In the section of the final judgment of dissolution of marriage specifically addressing “Alimony,” the court found the former husband earned approximately $140,000.00 per year and the former wife earned approximately $85,000.00 per year. The former wife contends this figure for her yearly income is unsupported by any competent substantial evidence.

Section 61.08(2), Florida Statutes (2007), states that in determining whether to grant alimony to either party, the trial court “shall consider all relevant economic factors, including but not limited to,” “[a]ll sources of income available to either party.” § 61.08(2)(g), Fla. Stat. (2007). As used in the chapter on dissolution of marriage:

“Income” means any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, workers’ compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government. United States Department of Veterans Affairs disability benefits and unemployment compensation, as defined in chapter 443, are excluded from this definition of income except for purposes of establishing an amount of support.

§ 61.046(8), Fla. Stat. (2007). Refuting the suggestion that the income figures for the former wife are unsupported by the evidence, the former husband relies on the former wife’s salary in 2007 as reported on her federal income tax return, the testimony of the forensic accountant, the annual cost-of-living salary increase received by the employees of her company, the employment benefits paid to her retirement plan, and the significant economic value of employer-paid health, dental, vision, and life insurance benefits. We find no abuse of discretion in the trial court’s findings regarding the parties’ respective incomes. To the extent the trial court could and should have made more detailed findings to explain its precise calculations of income, we conclude that the former wife failed to preserve this specific issue in a *156timely motion for rehearing. See Anaya v. Anaya, 987 So.2d 806 (Fla. 5th DCA 2008); Hoffman v. Hoffman, 793 So.2d 128 (Fla. 4th DCA 2001); Broadfoot v. Broadfoot, 791 So.2d 584 (Fla. 3d DCA 2001); Reis v. Reis, 739 So.2d 704, 705-06 (Fla. 3d DCA 1999).

Counsel for the former wife filed a motion for appellate attorney’s fees. Florida Rule of Appellate Procedure 9.400(b) states in pertinent part that “[a] motion for attorney’s fees ... shall state the grounds on which recovery is sought.” The Supreme Court of Florida has strictly interpreted this rule as requiring a party seeking appellate attorney’s fees to “provide substance and specify the particular contractual, statutory, or other substantive basis for an award of fees on appeal. It is simply insufficient for parties to only refer to rule 9.400 or to rely on another court’s order in support of a motion for attorney’s fees for services rendered in an appellate court.” United Services Auto. Ass’n v. Phillips, 775 So.2d 921, 922 (Fla.2000); see Hembd v. Dauria, 859 So.2d 1238, 1240 (Fla. 4th DCA 2003). “The ‘grounds on which’ an award is sought require! ] a party to identify a source of entitlement to an award of fees.” White v. White, 3 So.3d 400, 403 (Fla. 2d DCA 2009). “Virtually all claims for attorney’s fees rest on contractual or statutory bases.” Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001). “Any determination regarding an appropriate award of attorney’s fees in proceedings for dissolution of marriage ... begins with section 61.16, Florida Statutes,” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997), subsection (1) of which is the statutory authority governing an award of appellate attorney’s fees in dissolution of marriage appeals. Inasmuch as no statutory ground whatsoever is cited in the motion for appellate attorney’s fees, it must be denied. See Sumlar v. Sumlar, 827 So.2d 1079, 1086 (Fla. 1st DCA 2002); Shuler v. Darby, 786 So.2d 627, 630 (Fla. 1st DCA 2001) (on motion for clarification and/or rehearing).

We AFFIRM the final judgment dissolving the parties’ marriage.

PADOVANO and WETHERELL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Broemer v. Broemer, 109 So. 3d 284 (Fla. 1st DCA 2013)
    …d 395, 396 & n. 1 (Fla. 1st DCA 2012). The parties were married for twenty-seven years. It is a rebuttable presumption that “a marriage having a duration of 17 years or greater” is a long-term marriage. § 61.08(4), Fla. Stat. (2011); Welch v. Welch, 22 So. 3d 153, 155 (Fla. 1st DCA 2009) (revised opinion). [*290] In seeking a remand of the alimony issue, the former wife contends that the former husband failed to overcome the initial presumption favoring an award of permanent alimony for a marriage of this lo…
  • Achurra v. Achurra, 80 So. 3d 1080 (Fla. 1st DCA 2012)
    …v. Mize, 45 So. 3d 49, 49 n. 1 (Fla. 1st DCA 2010); Owens v. Owens, 973 So. 2d 1169 (Fla. 1st DCA 2007). However, we can consider for the first time on appeal the “insufficiency of the evidence” issue. See Fla. R. Civ. P. 1.530(e); Welch v. Welch, 22 So. 3d 153, 154 (Fla. 1st DCA 2009) (revised opinion on motions for withdrawal of opinion, clarification, reh’g, or reh’g en banc). Mrs. Achurra, the petitioner, had the initial burden to prove entitlement to relief. § 741.30(l)(a), Fla. Stat. (2010); Ambrefe…
  • Mize v. Mize, 45 So. 3d 49 (Fla. 1st DCA 2010)
    …(stating “[a] party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing"); see also Welch v. Welch, 22 So. 3d 153, 155-56 (Fla. 1st DCA 2009); Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007).…

Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited (16 total)

View all 16 cited authorities →

Full citator, related cases, and AI research tools

Open in FLexlaw