RICHARD A. PAYNE, APPELLANT,
v.
ERIN L. PAYNE, APPELLEE
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In this divorce appeal, the court affirmed the trial court's denial of permanent alimony to the husband but reversed the denial of attorney's fees, finding that despite a presumption favoring alimony in a seventeen-year marriage, the husband failed to demonstrate actual need beyond his own earning capacity, while the disparity in incomes supported an award of attorney's fees.
The court affirmed the denial of permanent alimony because Mr. Payne failed to show actual need for alimony beyond his own earning capacity, despite the presumption favoring alimony in long-term marriages. The court reversed the denial of attorney's fees based on the disparity between the parties' incomes and Mr. Payne's lack of ready assets.
[1] A trial court's determination of need and ability to pay are the starting points for any alimony determination.
[2] A trial court is not required to equalize the financial positions of parties in a divorce proceeding.
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Join FLexlaw to unlock all legal intelligence“the starting point for every alimony determination is need and ability to pay”
Establishes the fundamental framework for alimony awards, which requires actual need despite any presumption favoring alimony
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Join FLexlaw to unlock all legal intelligenceRichard and Erin Payne were married for seventeen years. The trial court found that Mr. Payne failed to demonstrate a need for alimony beyond his own …
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Richard Payne appeals the final judgment dissolving his seventeen-year marriage to Erin Payne. We affirm the denial of Mr. Payne’s request for permanent alimony, but we reverse the denial of attorney’s fees.
Mr. Payne argues that the trial court abused its discretion in failing to award him permanent alimony based on the disparity in the parties’ incomes. We acknowledge the presumption in favor of awarding alimony after a long-term marriage. See § 61.08(4), Fla. Stat. (2010) (classifying as long-term a marriage of seventeen years or more and codifying a rebuttable presumption in favor of alimony). But the starting point for every alimony determination is need and ability to pay. See § 61.08(2) (“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.”); see also Austin v. Austin, 12 So.3d 314, 317 (Fla. 2d DCA 2009).
Here, the trial court found that Mr. Payne failed to show a need for alimony over and above his own earning capacity. Mr. Payne takes issue with the court’s factual findings regarding his earning capacity, but the findings were supported by competent, substantial evidence. See Schlagel v. Schlagel, 973 So.2d 672, 675 (Fla. 2d DCA 2008). A trial court in a divorce proceeding is not required to equalize the financial positions of the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). In this close case, we cannot say that the court abused its discretion. See Lewis v. Lewis, 485 So.2d 855, 855 (Fla. 2d DCA 1986) (“[W]e recognize that this is a close case. It is for that very reason that we decline to find the trial judge abused his discretion....”). We therefore affirm the denial of alimony.
It is clear, however, that Mr. Payne is in need of a contribution toward his attorney’s fees. See Nelson v. Nelson, 588 So.2d 1049 (Fla. 2d DCA 1991) (finding abuse of discretion in failing to award attorney’s fees in light of disparity between parties’ present incomes and lack of ready assets in equitable distribution). We reverse and remand with directions to award attorney’s fees to Mr. Payne in an amount to be determined by the trial court.
Affirmed in part, reversed in part, and remanded with directions.
WHATLEY and WALLACE, JJ., Concur.
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Citator
Cited By
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Mills v. Johnson, 147 So. 3d 1023 (Fla. 2d DCA 2014)…shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” § 61.08(2), Fla. Stat. (2011); accord Payne v. Payne, 88 So. 3d 1016, 1017 (Fla. 2d DCA 2012). The magistrate failed to make said specific factual findings, instead stating without any support that the Former Husband has the ability to pay. Pursuant to the Former Husband’s financial affidavit and his gross income as…
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008)
- Austin v. Austin, 12 So. 3d 314 (Fla. 2d DCA 2009)
- Nelson v. Nelson, 588 So. 2d 1049 (Fla. 2d DCA 1991)
- Wash-Bowl Vending Co., Inc. v. SAN Remo, Inc., 485 So. 2d 855 (Fla. 4th DCA 1986)