KEVIN JOHN KINGSBURY, FORMER HUSBAND, APPELLANT,
v.
DIANA SHANCE KINGSBURY, FORMER WIFE, APPELLEE

Fla. 1st DCA | 2013-05-14
No. 1D12-3188
LEWIS, CLARK, and RAY, JJ„ concur.
116 So. 3d 473 Florida District Court of Appeal, First District (2013) Positive Treatment
Cited by 24 cases

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Holding

The court held that an award of alimony must be based on the obligor's net income, not gross income, and reversed the award due to the trial court's failure to make this finding.


Headnotes

[1] An award of alimony must be based on the payor's net income, not gross income.

[2] A trial court must make specific findings regarding a party's net income when determining alimony.

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Facts & Procedural History

The parties divorced, and the trial court awarded the wife permanent periodic alimony based on the husband's gross income. The husband appealed, argui…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant Kevin John Kingsbury (Mr. Kingsbury) appeals a final judgment of dissolution of marriage to Diana Shance Kingsbury (Ms. Kingsbury). Mr. Kings-bury raises numerous issues on appeal related to the trial court’s award of periodic permanent alimony and equitable distribution of marital assets. Because the trial court failed to make a finding of Mr. Kingsbury’s net income, we reverse the award of alimony and remand for further findings.1 The final order is affirmed in all other respects.

The parties were married in 1989 and Ms. Kingsbury filed a petition for dissolution of marriage in May 2011. The parties were self-employed by Kevin Roberts Entertainment Agency, Inc. (KREA), a booking agency that represented artists and provided entertainment to nightclubs, casinos, festivals, and bars. Ms. Kingsbury was the majority shareholder (51%) and Mr. Kingsbury was the minority shareholder (49%). Ms. Kingsbury maintained the books and Mr. Kingsbury was responsible for booking the acts. KREA was the sole source of income for both parties. After Ms. Kingsbury filed the petition for dissolution, Mr. Kingsbury assumed control of the bookkeeping and continued to operate KREA. Ms. Kingsbury, however, was only able to secure a job making minimum wage.

The trial court granted Ms. Kingsbury’s petition for dissolution of marriage in March 2012. In its final order, the trial court awarded, among other things, permanent periodic alimony to Ms. Kings-bury. The trial court found that Mr. Kingsbury’s “annual gross income [was] approximately $140,000” and that he “ha[d] the capacity of earn [sic] at least $150,000 per year.” The trial court also found that Ms. Kingsbury “ha[d] the ability to earn just a little more than minimum wage.” As such, Ms. Kingsbury was awarded $4,000 per month in alimony. Mr. Kingsbury argues on appeal that the trial court erred by failing to base the award of alimony on his net income. We agree.

The ability to pay alimony should be based on the party’s net income. See Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011) (holding that trial court erred by using figures that represented gross income rather than net income); Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004) (noting that former spouse’s argument that alimony award should be based on gross income rather than net income was incorrect because “[i]n reality, the case law states that net income is the relevant benchmark”) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980); Lambertini v. Lambertini, 817 So.2d 942, 943 (Fla. 3d DCA 2002); Gandul v. Gandul, 696 So.2d 466, 468 (Fla. 3d DCA 1997); de Armas v. de Armas, 471 So.2d 185, 185 (Fla. 3d DCA 1985); Parham v. Parham, 385 So.2d 107, 108 (Fla. 3d DCA 1980); Blum v. Blum, 382 So.2d 52, 54 (Fla. 3d DCA 1980)).

Here, the only mention in the final judgment of Mr. Kingsbury’s income, and *475thus his ability to pay alimony, was his gross income. This is error. In Vanzant, this court recently reversed and remanded an award of alimony, explaining that the figures used “reflect[ed] the gross income shown on the former husband’s amended financial affidavit, not his net income.” 82 So.3d at 993 (emphasis in original). Although it appears that Mr. Kingsbury may have had the ability to pay $4,000 per month in alimony, it is impossible to know for certain without some indication of his net income. See McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (“The trial court did not explain how it arrived at a net income amount of $4500 per month, and based on the record before us, we are compelled to reverse and remand for the trial court to reconsider this issue.”).

In arriving at Mr. Kingsbury’s net income, the trial court must “make specific findings as to the former wife’s need for alimony and the former husband’s ability to pay. See § 61.08(2), Fla. Stat.” Vanzant, 82 So.3d at 993. On remand, because the record includes conflicting testimony as to what expenses are attributable to KREA and what expenses are attributable to Mr. Kingsbury’s personal responsibilities, the trial court must make specific findings as to how it arrives at Mr. Kingsbury’s net income.2 See Winney v. Winney, 979 So.2d 396, 400 (Fla. 1st DCA 2008) (explaining that statutory mandates as well as possibility of appellate review requires specific findings, and, “[w]hen awarding alimony, a trial court must make findings as to the recipient’s need and the obligor’s ability to pay, and these findings must reflect a consideration of all relevant economic factors as provided in section 61.08(2), Florida Statutes.”) (citation omitted).

Accordingly, the trial court’s award of alimony is reversed. On remand, the trial court is instructed to make specific findings as to Mr. Kingsbury’s ability to pay alimony based on his net income. If the trial court determines that, based on Mr. Kingsbury’s net income, he is unable to pay $4,000 per month in alimony, the trial court must also recalculate child support consistent with section 61.30(l)(a).

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

LEWIS, CLARK, and RAY, JJ„ concur.


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Citator

Cited By (15 total)

  • Badgley v. Sanchez, 165 So. 3d 742 (Fla. 4th DCA 2015)
    …ling to look to the parties’ net incomes in assessing need and ability to pay. See § 61.08(2), Fla. Stat. (requiring trial court to make a finding regarding whether there is a need for alimony and the ability to pay alimony); Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st [*745] DCA 2013) (recognizing ability to pay should be based upon net income). We thus reverse the alimony award and remand so the trial court can make the findings required by section 61.08. Rental Income Finally, we reach the husb…
  • Rentel v. Sun Rentel, 124 So. 3d 993 (Fla. 4th DCA 2013)
    …d requires discussion. The husband argues that the trial court erred by not making findings regarding net income. We agree. Net income rather than gross income is relevant when calculating support awards, including alimony. Kingsbury v. Kingsbury, 116 So. 3d 473, 474-75 (Fla. 1st DCA 2013); Vega v. Vega, 877 So. 2d 882, 883 (Fla. 3d DCA 2004); Shrove v. Shrove, 724 So. 2d 679, 682 (Fla. 4th DCA 1999). Because it is not apparent that the trial court based its alimony calculations on net income, we reverse an…
  • Hanson v. Hanson, 217 So. 3d 1165 (Fla. 2d DCA 2017)
    …parties’ net incomes in assessing need and ability to pay.”); Gilliard v. Gilliard, 162 So. 3d 1147, 1154 (Fla. 5th DCA 2015) (“A party’s ability to pay alimony should be based on the party’s net income; not gross income.”); Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013). An alimony award based on gross income must be reversed. See, e.g., Moore, 157 So. 3d at 437; Badgley, 165 So. 3d at 744-45. Here, the amended final judgment plainly states that the Husband has “current monthly gross incom…

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