THOMAS LIN, APPELLANT,
v.
SUSANA LIN, APPELLEE
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Thomas Lin appeals the trial court's final judgment of dissolution of marriage, challenging the awards of alimony and child support. The Florida District Court of Appeal, Second District, reversed the alimony and child support awards because the trial court impermissibly double-counted the parties' child's expenses, resulting in an alimony award that exceeded the wife's demonstrated need.
The court held that the trial court abused its discretion by awarding alimony that exceeded the recipient spouse's demonstrated need through impermissible double-counting of the child's expenses. An alimony award must be based on the recipient spouse's need and the paying spouse's ability to pay, and cannot exceed the recipient's need or include child expenses already accounted for in child support.
[1] An award of alimony that exceeds the recipient spouse's demonstrated need constitutes an abuse of discretion.
[2] An award of alimony that includes amounts for children's expenses already accounted for in a child support award constitutes impermissible double-counting and requires re…
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Join FLexlaw to unlock all legal intelligence“An award of alimony must be based on the recipient spouse's need for alimony and the paying spouse's ability to pay.”
Establishes the foundational principle governing alimony awards under Florida law
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Join FLexlaw to unlock all legal intelligenceThomas and Susana Lin were married in California in 1985 and moved to Florida in 1992. The husband owned a successful fruit and vegetable processing c…
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Thomas Lin appeals several aspects of the final judgment of dissolution of his marriage to Susana Lin. We agree with the Husband only that the trial court erred by double-counting the child’s expenses, which resulted in an award of alimony that exceeds the Wife’s need. Therefore, we reverse the child support and alimony awards and remand for recalculation. As to all other aspects of the final judgment, we affirm.
The parties were married in California in May 1985, and the Husband filed his petition for dissolution in August 2006. During the early years of the parties’ marriage, the Husband owned a very successful fruit and vegetable processing company, and the parties lived a very affluent lifestyle. However, after the parties moved to Florida in 1992, their fortunes changed. By the time the petition was filed, the parties had been through bankruptcy, the Husband was working for himself as a vegetable processor, and the Wife was working two janitorial jobs. In her counterpetition, the Wife sought permanent periodic alimony, as well as child support for the parties’ minor child.
The Wife’s Sixth Amended Financial Affidavit showed total monthly expenses of $4229.33. This included $559 per month in expenses for the parties’ child. The same financial affidavit showed that the Wife’s monthly deficit — including the child’s expenses — was $1637.75. Based on this deficit, the trial court awarded the Wife $1700 per month in alimony. However it also awarded the Wife $705.76 per month in child support. Thus, while the Wife’s demonstrated monthly need was $1637.75 including the child’s expenses, the trial court awarded the Wife $2405.76 in combined alimony and child support. The Husband challenges this award in this appeal, contending that it constitutes an abuse of discretion because it exceeds the Wife’s needs. We agree.
An award of alimony must be based on the recipient spouse’s need for alimony and the paying spouse’s ability to pay. See § 61.08, Fla. Stat. (2008); see also Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980) (holding that permanent periodic alimony is awarded based on “the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds”). Thus, an award of alimony that exceeds the recipient spouse’s need constitutes an abuse of discretion. See Garcia v. Garcia, 25 So.3d 687, 690 (Fla. 4th DCA 2010). In addition, an award of alimony that includes amounts for children’s expenses that have already been accounted for in a child support award constitutes an impermissible double-counting of those expenses and requires reversal. See, e.g., Cox v. Cox, 10 So.3d 180, 182 (Fla. 2d DCA 2009) (reversing alimony award when the court considered the daughter’s expenses in determining alimony and also in determining child support, thus resulting in a double pay*943ment of these expenses); Storey v. Storey, 979 So.2d 1057, 1057-58 (Fla. 2d DCA 2008) -(reversing alimony award that was calculated by including the children’s expenses even though those expenses had already been included in the child support award); Coniglio v. Coniglio, 969 So.2d 579, 580 (Fla. 4th DCA 2007) (same); Levine v. Levine, 964 So.2d 741, 742 (Fla. 4th DCA 2007) (same).
Here, the Wife’s demonstrated monthly need, as accepted by the trial court, was $1637.75 including the child’s expenses, and the trial court awarded $1700 per month in alimony to address this need. When the trial court then awarded the Wife an additional $705.76 per month in child support, it impermissibly double-counted the child’s expenses. Because the resulting alimony award partially duplicated the child support award and exceeded the Wife’s monthly need, the award constituted an abuse of discretion that requires reversal.
In this appeal, the Wife argues that the alimony award did not exceed her need because her Sixth Amended Financial Affidavit assumed that she would be working sixty hours per week and she testified at the adjudicatory hearing that she was not guaranteed that amount of work. In her brief, the Wife recalculated her average net monthly income and deducted certain of the child’s expenses in an effort to show that the alimony award is not excessive when her alternate figures are used. However, at the adjudicatory hearing, the trial court heard the Wife’s testimony that she was not guaranteed sixty hours per week. Despite this testimony, the trial court chose to accept the amounts included in the Wife’s sworn Sixth Amended Financial Affidavit.
The trial court’s determination of the amount of a party’s income must be supported by competent, substantial evidence. See McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008); Matias v. Matias, 948 So.2d 1021, 1023 (Fla. 2d DCA 2007). When there is conflicting evidence concerning a party’s income, it is within the trial court’s purview to determine what evidence is most credible. See, e.g., In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005) (noting that in a nonjury case, it is the trial court’s function “ ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses’ ” (quoting Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976))); Mirras v. Mirras, 202 So.2d 887, 893 (Fla. 2d DCA 1967).
Here, the trial court determined the Wife’s income based on the amounts she swore to in her Sixth Amended Financial Affidavit rather than the different amounts she testified to at the evidentiary hearing. While it is true that the trial court could have reached a different determination of income based on the evidence presented, the trial court’s determination of the Wife’s income is nevertheless supported by competent, substantial evidence. Thus, we cannot disturb such a determination on appeal.
Accordingly, because the child’s expenses have been double-counted resulting in an award of alimony that exceeds the Wife’s need, we reverse the child support and alimony awards and remand for further proceedings. On remand, the trial court should first calculate the Wife’s need for alimony without regard to the child’s expenses. See Storey, 979 So.2d at 1057-58. It should then recalculate child support in light of the amended alimony award. Id. at 1058. Certainly, if either parties’ income has changed since the date of the final hearing, they may present evidence to support that change on remand.
*944Affirmed in part; reversed in part; remanded for further proceedings.
ALTENBERND and LaROSE, JJ„ Concur.
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Dorworth v. Dorworth, 176 So. 3d 336 (Fla. 5th DCA 2015)…5,000 lump sum alimony award. Specifically, Former Husband asserts that the monthly dura-tional alimony award, combined with Former wife’s monthly salary, exceeds her monthly needs. An alimony award should not exceed a spouse’s need. See Lin v. Lin, 37 So. 3d 941, 942 (Fla. 2d DCA 2010). An order awarding alimony in excess of the recipient spouse’s needs will be reversed as an abuse of discretion, absent special circumstances. Rosecan v. Springer, 845 So. 2d 927, 929 (Fla. 4th DCA 2003); McCray v. McCray, 49…
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Turcotte v. Turcotte, 122 So. 3d 954 (Fla. 2d DCA 2013)…nominal alimony because it failed to make sufficient factual findings as required under section 61.08. Generally, a party is entitled to alimony when that party has an actual need for alimony and the other party has the ability to pay. Lin v. Lin, 37 So. 3d 941, 942 (Fla. 2d DCA 2010). An award of nominal alimony is appropriate where the [*957] recipient spouse would be entitled to alimony but for the paying spouse’s current inability to pay, which is reasonably expected to change in the future. See Lightc…
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Sikora v. Sikora, 173 So. 3d 1028 (Fla. 2d DCA 2015)…a former spouse as they have been established by the marriage of the parties.” Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla.1980). “[A]n award of alimony that exceeds the recipient spouse’s need constitutes an abuse of discretion.” Lin v. Lin, 37 So. 3d 941, 942 (Fla. 2d DCA 2010); see also Rosecan v. Springer, 845 So. 2d 927, 929 (Fla. 4th DCA 2003) (“Absent special circumstances ..., an alimony award should not exceed a spouse’s need.”). In this ease, the former wife submitted a schedule at trial th…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976)
- In re Estate QF Jean M. Sterile. Melissa Pierre v. Yvette M. Trelles ad Litem for Samuel Sterile and Lucner Sterile, 902 So. 2d 915 (Fla. 2d DCA 2005)
- Mirras v. Mirras, 202 So. 2d 887 (Fla. 2d DCA 1967)
- Windom v. State, 984 So. 2d 678 (Fla. 5th DCA 2008)
- McCANTS v. McCANTS, 984 So. 2d 678 (Fla. 2d DCA 2008)
- Levine v. Levine, 964 So. 2d 741 (Fla. 4th DCA 2007)
- Eduardo A. Garcia, M.D. v. Garcia, 25 So. 3d 687 (Fla. 4th DCA 2010)
- Storey v. Storey, 979 So. 2d 1057 (Fla. 2d DCA 2008)
- Matias v. Matias, 948 So. 2d 1021 (Fla. 2d DCA 2007)