MICHAEL TOPEL, APPELLANT,
v.
REEM TOPEL, APPELLEE
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In a family law action for child support and spousal support, the husband appealed four non-final orders. The appellate court found that the temporary support award exceeded his demonstrated ability to pay because the trial court relied on an uncontroverted higher income figure and used gross rather than net income, requiring remand for recalculation.
The court vacated the temporary relief order and remanded for the husband to make full disclosure of income and expenses and for the trial court to re-evaluate temporary support based on better information. The court reversed the contempt and income withholding orders entered in reliance on the flawed temporary order but affirmed the retroactive alimony and child support awards.
[1] Temporary support awards must be supported by competent, substantial evidence demonstrating the need for support and the paying spouse's ability to pay.
[2] The ability to pay support should be based on a party's net income, not gross income.
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“although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse's ability to pay”
Establishes the legal standard requiring substantial evidence of ability to pay for temporary support awards
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Join FLexlaw to unlock all legal intelligenceMichael Topel appealed from orders granting temporary alimony and child support, finding him in contempt, garnishing his thrift savings plan, and with…
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In this action for child support and spousal support unconnected with dissolution, the husband timely appeals from four non-final, appealable orders: (1) granting *864the wife’s motion for temporary alimony and child support and retroactive alimony and child support; (2) finding the husband in contempt; (3) garnishing the husband’s thrift savings plan; and (4) withholding income for support.1 Although most of the husband’s arguments were not preserved for review, he did preserve one meritorious argument: that the amount of temporary support awarded appears to exceed his ability to pay. This error appears to be attributable, at least in part, to the trial judge’s reliance on an income figure for the husband that was contrary to the husband’s uncontroverted evidence regarding his then-current income. See Breitenbach v. Breitenbach, 838 So.2d 1266 (Fla. 2d DCA 2003) (holding that although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse’s ability to pay). The trial judge appears to have compounded the error by using a gross income figure for the husband. See, e.g., Kingsbury v. Kingsbury, 116 So.3d 473, 474 (Fla. 1st DCA 2013) (“The ability to pay alimony should be based on the party’s net income.”). As we did in Clore v. Clore, 115 So.3d 1100, 1105 (Fla. 5th DCA 2013), we “vacate the current temporary relief order and remand for [hjusband to make full and current disclosure of his income and expenses, for the trial court to re-evaluate temporary support in light of better information and to enter a new order.” We also reverse the contempt order and income withholding order, which were entered in reliance on the temporary custody and child support order. We affirm the retroactive alimony and retroactive child support awards in all respects.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
TORPY, C.J., LAWSON and LAMBERT, JJ., concur.
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Brunsman v. Brunsman, 232 So. 3d 1175 (Fla. 5th DCA 2017)…award.4 See, e.g., Brady v. Brady, 229 So. 3d 892, 894, 2017 WL 5180738, at *1 (Fla. 5th DCA 2017) (“[T]he trial court erred in basing the alimony award on the parties’ respective gross incomes and not their net incomes.”); see also Topel v. Topel, 152 So. 3d 863 (Fla. 5th DCA 2014) (reversing alimony award in part because trial court erred in using gross income instead of net income); Clore v. Clore, 115 So. 3d 1100 (Fla. 5th DCA 2013) (vacating alimony award and remanding for redetermination of husband’s i…
Authorities Cited
- Kingsbury v. Kingsbury, 116 So. 3d 473 (Fla. 1st DCA 2013)
- Carey v. State, 838 So. 2d 1266 (Fla. 2d DCA 2003)
- Breitenbach v. Breitenbach, 838 So. 2d 1266 (Fla. 2d DCA 2003)
- Clore v. Clore, 115 So. 3d 1100 (Fla. 5th DCA 2013)