JENNY MARTINEZ, APPELLANT,
v.
ENRIQUE D. ABINADER, APPELLEE
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Jenny Martinez appeals a final divorce judgment, challenging the trial court's award of primary custody to her ex-husband, denial of permanent alimony, treatment of mortgage payments as transitional alimony, failure to award retroactive child support, and failure to award attorney's fees. The appellate court reverses the custody award and related provisions, finding the trial court misapplied the legal standard and failed to consider all sources of the husband's income when determining his ability to pay support.
The court reversed the trial court's designation of the husband as primary residential parent because it misapplied the legal standard by equating the child's environment with the physical structure of the residence. The court also reversed the child support and tax dependency provisions and remanded for reconsideration in light of the correct custody determination. The court remanded the alimony, retroactive child support, transitional alimony treatment, and attorney's fees issues for reconsideration with proper consideration of all sources of the husband's income and assets.
[1] A trial court misapplies the law when it equates a child's "environment" with the physical structure of a residence, erroneously eliminating a parent from primary residen…
[2] A trial court's designation of a primary residential parent must be reversed if it was based on an incorrect legal standard, requiring reconsideration of custody in accor…
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Join FLexlaw to unlock all legal intelligence“the trial court misapplied the law in reaching its decision on this issue. The trial court applied an incorrect standard by equating the child's "environment," as referenced in section 61.13(3)(d), Florida Statutes (2007), with the physical structure where the child lived”
Establishes that the trial court used the wrong legal standard for determining primary residential custody
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Join FLexlaw to unlock all legal intelligenceThe parties were married and had a teenage son. During their three-and-one-half-year separation preceding the divorce, their son resided with the wife…
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Jenny Martinez (the Wife) appeals the final judgment that dissolved her marriage to Enrique D. Abinader (the Husband). She raises five arguments on appeal: (1) that the trial court erred in awarding primary custody of the parties’ minor child to the Husband; (2) that the trial court erred in denying the Wife permanent periodic alimony and in failing to include all of the Husband’s income when determining his ability to pay child support and alimony; (8) that the trial court erred in treating the Husband’s past mortgage payments in the amount of $20,000 as transitional alimony; (4) that the trial court erred in failing to award the Wife retroactive child support; and (5) that the trial court erred in failing to award any attorney’s fees to the Wife. There is no cross-appeal. The Wife’s arguments have merit, and we affirm the final judgment in part, reverse in part, and remand for further proceedings.
During the parties’ three-and-one-half-year separation that preceded the entry of the final judgment, the parties’ teenage son resided with the Wife in the former marital home while the Husband lived in a nearby apartment. Although the parties agreed to share parental responsibility for their son, they contested the issue of which of them should be designated as the primary residential parent.
In the final judgment, the trial court named the Husband as the primary residential parent. We agree with the Wife that the trial court misapplied the law in reaching its decision on this issue. The trial court applied an incorrect standard by equating the child’s “environment,” as referenced in section 61.13(3)(d), Florida Statutes (2007), with the physical structure where the child lived, first with both parties and later — during the parties’ lengthy separation — with the Wife. Taking the stability of the child’s residence in the dwelling itself as its polestar, the trial court erroneously eliminated the Wife from consideration as the primary residential parent because she could not afford to retain the marital home on her income. Instead, the trial court designated the Husband as the primary residential parent, equitably distributed the marital home to him, and ordered the Husband to refinance the marital home and to pay the Wife her one-half share of the net equity in the property.1 Because the trial court *946used an incorrect standard in reaching its decision to designate the Husband as the primary residential parent, we reverse this provision of the final judgment and remand for reconsideration of this issue in accordance with the factors outlined in section 61.13.
Our decision to reverse the trial court’s designation of the Husband as the primary residential parent compels the reversal of the provisions in the final judgment requiring the Wife to pay the Husband $423 per month in child support and permitting the Husband to claim the child as his dependent for tax purposes. On remand, the trial court must reconsider the parties’ child support obligations, which will obviously be affected by its ultimate custody determination. We also note that in its original determination of child support, the trial court relied upon a child support guidelines worksheet submitted by the Husband. Although the Husband’s gross monthly income as reflected on that worksheet includes overtime earnings to which he stipulated, it does not include income that he historically earned in secondary employment, and the final judgment did not make any factual findings with respect to that income.
Further, the trial court did not make any findings with respect to the Wife’s request for retroactive child support from the Husband.2 While an award of retroactive child support is a matter for the trial court’s discretion, a trial court typically abuses that discretion when it fails to award retroactive support from the date-of the filing of the petition and there is a need for support and an ability to pay. Leventhal v. Leventhal, 885 So.2d 919, 920 (Fla. 3d DCA 2004). In determining the Husband’s child support obligations on remand, the trial court must take into consideration his actual overtime pay and any actual income earned from part-time employment at secondary jobs, as well as any child support payments that he actually made. See § 61.30(2)(a), (17); Mitchell v. Mitchell, 841 So.2d 564, 569 (Fla. 2d DCA 2003); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999); Butler v. Brewster, 629 So.2d 1092, 1092-93 (Fla. 4th DCA 1994).
The trial court also denied the Wife’s request for permanent periodic alimony. Although the trial court found that the Husband’s income was double that of the Wife’s income, it also found that he did not have the ability to make periodic alimony payments. Instead, the trial court awarded the Wife lump sum alimony in the amount of $10,000, which the Husband was to pay from proceeds obtained by refinancing the marital home. The trial court also re-characterized as transitional alimony the Husband’s $20,000 in contributions to the mortgages on the marital home during *947the dissolution proceedings. Thus the total lump sum alimony award to the Wife was $80,000.
As with child support, it appears that the trial court failed to consider all sources of the Husband’s income when it found that the Husband did not have the ability to pay the Wife permanent periodic alimony. Although the final judgment states that the court was considering the Husband’s actual overtime pay, the gross monthly income figure cited in the final judgment from the Husband’s financial affidavit, $4264, does not appear to be from his most recent affidavit and does not include the Husband’s stipulated overtime, which he testified brought his monthly income to $4747. In addition, the trial court did not make any factual findings with respect to the income the Husband historically earned in secondary employment. Further, the evidence reflects that the Husband is. making monthly payments of $200 on an investment property that he purchased after the parties’ separation.3 The trial court did not address this investment expense or the value of the property as an asset that could provide a means for making support payments. Similarly, it did not address the Husband’s voluntary contributions to an AARP 401 (k) plan in the amount of $116.53 per week. In addressing alimony on remand, the trial court must consider all sources of income available to the Husband, including actual overtime pay and actual income from part-time employment at secondary jobs. See § 61.08(2)(g); Geoghegan v. Geoghegan, 969 So.2d 482, 484-85 (Fla. 5th DCA 2007). In addition, it must consider the Husband’s voluntary contributions to his investment property and 401 (k) plan in making its “ability-to-pay alimony calculation.” Geoghegan, 969 So.2d at 486; see also § 61.08(2)(d).
The Wife argues that the trial court erred in treating the Husband’s mortgage payments in the amount of $20,000 as transitional alimony. Under the temporary agreement, the parties shared equally in making the mortgage payments on the marital home during the lengthy dissolution proceedings, thereby contributing equally to reducing the debt on the home. But by treating the Husband’s mortgage payments as transitional alimony and awarding each party a one-half interest in the equity in the home, the trial court effectively made the Wife solely responsible for the two mortgages on the property during the dissolution proceedings without crediting her for her greater role in reducing the debt on the property. On remand, the trial court must also reconsider this issue.
Finally, the trial court must reconsider whether to award the Wife all or a portion of her attorney’s fees. As with alimony and child support, in determining that the Husband did not have the ability to pay the Wife’s attorney’s fees, the trial court failed to consider all of the Husband’s assets and sources of income. See § 61.16(1).
In all other respects, we affirm the final judgment, including the provisions dissolving the parties’ marriage, approving the equitable distribution of the marital assets and liabilities to which the parties agreed, and concerning the parties’ non-marital debt. We note that the final hearing in this case was held more than two years ago; so it is possible that the par*948ties’ financial circumstances have changed materially since the entry of the final judgment. On remand, the trial court may conduct such additional hearings and take such additional evidence as may be necessary to comply with our mandate.
It is with considerable reluctance that we remand for further proceedings in this case. The Husband filed the petition for dissolution of marriage in September 2004. So the litigation has been pending for more than five and one-half years. The parties’ teenage son will soon reach the age of majority. We note that the parties attempted to settle this matter during the pendency of this appeal. Further proceedings in the trial court will cause the parties to incur additional expenses for attorney’s fees and costs that they cannot really afford. In recognition of these realities, we remind the parties that they — with the assistance of their able and experienced counsel — should be able to reach a resolution of their differences that will better serve their interests and circumstances than one imposed on them by a third party.
Affirmed in part, reversed in part, and remanded for further proceedings.
ALTENBERND and KHOUZAM, JJ., Concur.
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Crick v. Robbin Vickery Crick, 78 So. 3d 696 (Fla. 2d DCA 2012)…rties’ financial positions or need for attorney’s fees after consideration of alimony and child support payments. This was error. A trial court must consider all assets and sources of income in an award for attorney’s fees. See Martinez v. Abinader, 37 So. 3d 944, 947 (Fla. 2d DCA 2010). “The overall relative financial position and resources of the parties must be examined and not simply the isolated factor of income and earning capacity.” Stoler v. Sto-ler, 679 So. 2d 837, 838 (Fla. 2d DCA 1996). A trial co…
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Dravis v. Dravis, 170 So. 3d 849 (Fla. 2d DCA 2015)…his issue for the first time on appeal. See Cuevas v. Kelly, 873 So. 2d [*855] 367, 373 (Fla. 2d DCA 2004) (stating that parties are precluded from raising issues not raised in the trial court for the first time on appeal); cf. Martinez v. Abinader, 37 So. 3d 944, 946 n. 2 (Fla. 2d DCA 2010) (holding that issue of retroactive alimony was preserved where raised on the record at trial). For that reason, this aspect of the final judgment is affirmed.1 Conclusion We find no error in the equitable distribution…
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Shrove v. Shrove, 724 So. 2d 679 (Fla. 4th DCA 1999)
- Franz Edward Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003)
- Butler v. Lavonne Brewster, 629 So. 2d 1092 (Fla. 4th DCA 1994)
- Geoghegan v. Geoghegan, 969 So. 2d 482 (Fla. 5th DCA 2007)
- Leventhal v. Leventhal, 885 So. 2d 919 (Fla. 3d DCA 2004)