RONALD W. MOORE, APPELLANT/CROSS-APPELLEE,
v.
ROBERTA D. MOORE, APPELLEE/CROSS-APPELLANT

Fla. 2d DCA | 2015-02-06
No. 2D13-3204
KHOUZAM and BLACK, JJ„ Concur.
157 So. 3d 435 Florida District Court of Appeal, Second District (2015) Positive Treatment
Cited by 17 cases

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Holding

The court held that the trial court abused its discretion by failing to consider the husband's business expenses when calculating his net monthly income for alimony and child support.


Headnotes

[1] A trial court abuses its discretion in determining a party's income for alimony and child support purposes when it fails to consider legitimate business expenses.

[2] "Business income" is defined as gross receipts minus ordinary and necessary expenses required to produce income for the purpose of calculating child support.

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Facts & Procedural History

The husband appealed the final judgment dissolving his marriage, arguing the trial court erred in determining his monthly income and alimony obligatio…

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Opinion of the Court
CASANUEVA, Judge.

CASANUEVA, Judge.

Ronald W. Moore appeals a final judgment dissolving his marriage to Roberta D. Moore. He argues on appeal that the trial court erred in determining his monthly income and, consequently, the amount of permanent alimony he must pay to his Former Wife. Roberta Moore filed a cross-appeal, arguing that the trial court erred in failing to order her Former Husband to maintain his life insurance policy and in determining the amount of child support. We conclude that the trial court abused its discretion in determining the Former Husband’s monthly income because it failed to consider his business expenses, and we reverse the financial aspects of the final judgment involving alimony and child support.

A trial court’s determination of a party’s income has to be supported by substantial, competent evidence. McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008). For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, section 61.046(8), Florida Statutes (2010), defines “income” as

*436any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.

In determining the amount of income that is attributable to a parent in computing child support, section 61.30(2)(a), defines “gross income” to include “[b]usiness income from sources such as self-employment, partnership, close-corporations, and independent contracts. ‘Business income’ means gross receipts minus ordinary and necessary expenses required to produce income.”

In Zold v. Zold, 911 So.2d 1222, 1230 (Fla.2005), the Florida Supreme Court stated, “We conclude that construed together, sections 61.046(7), 61.30(2)(a)(3), 61.08(2)(g), 61.30(6), and 61.16(1), reflect legislative intent that trial courts consider only that portion of a spouse’s income that is available to the spouse.” An award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income. See Cissel v. Cissel, 82 So.3d 891, 892 (Fla. 4th DCA 2011). In calculating a party’s monthly income, business expenses must be deducted from the party’s gross income. Id.; see also Coppola v. Coppola, 630 So.2d 673, 674 (Fla. 4th DCA 1994) (“In calculating expenses, the court apparently failed to consider the husband’s undisputed expenses for union dues, uniforms, and unreimbursed travel expenses, totaling over $500 per month.”).

We recognize the difficult task the trial court faced in determining the Former Husband’s monthly income. He filed six financial affidavits within a two-and-a-half-year-period which showed a monthly income after the allowable deductions in section 61.30 varying from $4055 to $20,362. As this court stated in Trespalacios v. Trespalacios, 978 So.2d 858, 860 (Fla. 2d DCA 2008), We share the trial court’s frustration in attempting to arrive at equitable numbers when a party is not candid about his or her actual income and/or expenses.” We also note that the trial court found the Former Husband’s testimony regarding his business expenses lacked credibility.

However, as this court noted in McCants, 984 So.2d at 682, where a case involves “a significant dispute in a party’s income, meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.” In the final judgment, the trial court found that the Former Husband’s “statutory net monthly income or earnings” was $23,295. The Former Husband’s 2012 tax return attached a Schedule C, which indicated that his combined gross income from two companies was $279,534. This would equate to a gross, not net, monthly income of $23,295 per month.

Although the trial court found that the Former Husband’s testimony lacked credibility and that his business expenses were “grossly inflated,” the trial court failed to give the Former Husband credit for any of his business expenses. The Former Wife agreed in her brief that her Former Husband does have some nonreimbursed actual business expenses. Some of these expenses appear to include automobile expenses, a form of “malpractice” insurance, fees for a state license, and telephone expenses. The trial court’s failure to consider any business expenses when calculating the Former Husband’s net income was an abuse of discretion.

*437Accordingly, we reverse the financial aspects of the final judgment and remand the case for the trial court to determine the Former Husband’s net monthly income and the amount of permanent alimony and child support to be awarded.1 That portion of the final judgment dissolving the parties’ marriage and ratifying the parties’ stipulations is affirmed.

Affirmed in part, reversed in part, and remanded.

KHOUZAM and BLACK, JJ„ Concur.


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Citator

Cited By (12 total)

  • Hanson v. Hanson, 217 So. 3d 1165 (Fla. 2d DCA 2017)
    …reverse and remand for recalculation of the amount of alimony. There is no dispute on this issue as to the law. “An award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income.” Moore v. Moore, 157 So. 3d 435, 436 (Fla. 2d DCA 2015); see also Badgley v. Sanchez, 165 So. 3d 742, 744 (Fla. 4th DCA 2015) (“The judgment is also deficient for failing to look to the parties’ net incomes in assessing need and ability to pay.”); Gilliard v. Gilliard, 162 So. 3d…
  • Conlin v. Conlin, 212 So. 3d 487 (Fla. 2d DCA 2017)
    …ife’s need for alimony but argues that the award was erroneously based upon his gross income and that he lacks the ability to pay the amount of alimony awarded. The ability to pay alimony must be based on the party’s net income. See Moore v. Moore, 157 So. 3d 435, 436 (Fla. 2d DCA 2015) (“An award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income.”); Vanzant v. Vanzant, 82 So. 3d 991, 993 (Fla. 1st DCA 2011) (citing Canakaris for the proposition that…
  • Tritschler v. Tritschler, 273 So. 3d 1161 (Fla. 2d DCA 2019)

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