FLOYD CONLIN, APPELLANT,
v.
STEPHANIE CONLIN, APPELLEE

Fla. 2d DCA | 2017-03-01
No. Case No. 2D16-1442
CRENSHAW and MORRIS, JJ., Concur.
212 So. 3d 487 Florida District Court of Appeal, Second District (2017) Negative Treatment
Cited by 14 cases

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Synopsis

Floyd Conlin appeals a dissolution of marriage judgment, challenging the trial court's award of permanent periodic alimony based on gross rather than net income, and the failure to identify and distribute a Parent PLUS student loan. The Second District Court of Appeal reversed the alimony and equitable distribution awards while affirming the dissolution itself.


Holding

The court reversed both the alimony award and the equitable distribution. Alimony awards must be based on net income, not gross income, and the trial court's failure to clearly specify that it calculated ability to pay based on net income constitutes reversible error. The trial court was also required to identify the Parent PLUS loan as either marital or nonmarital and distribute it accordingly before distributing marital assets.


Headnotes

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

[2] A trial court must identify and distribute all marital and non-marital assets and liabilities in a final judgment of dissolution.

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Key Quotes

“An award of alimony must be based on the income that is available to the party, i.e., the party's net monthly income.”

Establishes the controlling legal principle that alimony calculations must use net income, not gross income

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Facts & Procedural History

Floyd Conlin earned approximately $150,000 per year (including a $30,000 annual bonus), as documented in his financial affidavit showing $10,385 month…

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Opinion of the Court
BLACK, Judge.

BLACK, Judge.

Floyd Conlin (former husband) challenges the final judgment of dissolution of marriage, asserting that the trial court erred in awarding Stephanie Conlin (former wife) permanent periodic alimony based upon his gross income rather than his net income. He also argues that the trial court erred in failing to identify and distribute a Parent PLUS loan he incurred on behalf of the parties’ daughter. We reverse.

The trial court determined that the former wife had a need for permanent periodic alimony and that the former husband had the ability to pay alimony. See § 61.08(2), Fla. Stat. (2013); Cleary v. Cleary, 872 So.2d 299, 304 (Fla. 2d DCA 2004) (“The two primary elements to be considered when determining permanent periodic alimony are the needs of one spouse for the funds and the ability of the other spouse to provide the necessary funds.” (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla. 1980))). The trial court awarded the former wife $4750 per month in permanent periodic alimony. The former husband does not dispute the former wife’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 a court must determine ability to pay based on net income). The final judgment provides, in pertinent part:

The [former husband] earns approximately $150,000 per year and his income has increased annually.
The [former husband’s] Financial Affidavit dated March 5, 2014, states the [former husband] has a monthly income of $10,385 or $124,620.00 annually. ... [H]e has earned an incentive/bonus pay for the past 12 years in a row of approximately $30,000.00. The bonus was not included on the [former husband’s] Financial Affidavit. The [former husband’s] true income is approximately $150,000 per year.

It is apparent from the former husband’s financial affidavit that the stated monthly *489income of $10,385, or $124,620 annually, reflects his gross income. The final judgment makes no other mention of the former husband’s income. See Kingsbury v. Kingsbury, 116 So.3d 473, 474-75 (Fla. 1st DCA 2013) (“Here, the only mention in the final judgment of Mr. Kingsbury’s income, and thus his ability to pay alimony, was his gross income. This is error.”); Vanzant, 82 So.3d at 993 (“[W]e reverse the alimony and child support awards because the awards appear to have been based on the trial court’s finding that the former husband’s net income was ‘between $4,879.76 and $4,754.76.’ This finding is not supported by the record because these figures reflect the gross income shown on the former husband’s amended financial affidavit, not his net income.”). Furthermore, it is not clear how the trial court arrived at a “true income” figure of $150,000 since adding the former husband’s gross annual bonus of $30,000 to his gross annual salary of $124,620 equates to $154,620. Even if the trial court intended for this figure to account for the former husband’s net income, or at least his net annual bonus, the record before us simply does not clearly demonstrate that the alimony award was based on the former husband’s net income as required. See Rentel v. Rentel, 124 So.3d 993, 994 (Fla. 4th DCA 2013) (“Because it is not apparent that the trial court based its alimony calculations on net income, we reverse and remand to make the required findings and to modify the award if necessary.”); see also McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (“Meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.”).

Regarding the equitable distribution, the former husband testified that he incurred a Parent PLUS loan in the amount of $12,900 on behalf of the parties’ daughter for her education. The parties disputed whether the loan was marital or nonmarital, and the trial court failed to characterize it and distribute it accordingly. The trial court erred in this regard.1 Section 61.075(1) provides that “the court shall set apart to each spouse that spouse’s nonmarital assets and liabilities.” Section 61.075(3) further provides that “[t]he distribution of all marital assets and marital liabilities ... shall include specific written findings of fact” including the “[c]lear identification of nonmarital assets and ownership interests” and the “[ijdentification of the marital liabilities and designation of which spouse shall be responsible for each liability.” § 61.075(3)(a), (c). The trial court is thus required to identify all marital and nonmarital assets and liabilities before it equitably distributes those that are marital. See Wolf v. Wolf, 979 So.2d 1123, 1125 (Fla. 2d DCA 2008) (“Section 61.075(3) ... requires the trial court to clearly identify and value all of the marital and nonmarital assets and liabilities and to determine entitlement to each marital asset and responsi*490bility for each marital debt.”); Embry v. Embry, 650 So.2d 190, 191 (Fla. 2d DCA 1995) (“Section 61.075 ... requires the trial court to set apart to each spouse his/her nonmarital assets and liabilities before making an equitable distribution of the marital assets. This involves an identification of what items are marital and non-marital assets and liabilities.”).

Accordingly, we affirm the dissolution of marriage but reverse the alimony award and equitable distribution. In determining the amount of alimony on remand, the trial court is instructed to make specific findings as to the former husband’s ability to pay alimony based on his net income. The trial court is also instructed to value the contested Parent PLUS loan, identify it as marital or nonmarital, and distribute it accordingly.

Affirmed in part, reversed in part, and remanded.

CRENSHAW and MORRIS, JJ., Concur.


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Cited By

  • Soria v. Lucinda Soria, 237 So. 3d 454 (Fla. 2d DCA 2018)
    …n, and the primary factors to be considered in making such a determination are the financial needs of one party and the ability of the other party to pay. Id. "The ability to pay alimony must be based on the party's net income." Conlin v. Conlin, 212 So. 3d 487, 488 (Fla. 2d DCA 2017); accord Hanson v. Hanson, 217 So. 3d 1165, 1166 (Fla. 2d DCA 2017) ("The judgment is also deficient for failing to look to the parties' net incomes in assessing need and ability to pay." (quoting Badgley v. Sanchez, 165 So. 3…
  • Crouse v. Crouse, 368 So. 3d 6 (Fla. 4th DCA 2023)
    …court must make a specific factual determination about one party’s need for alimony, and the other party’s ability to pay alimony—and this determination must be based on the parties’ net incomes. See § 61.08(2), Fla. Stat. (2022); Conlin v. Conlin, 212 So. 3d 487, 488 (Fla. 2d DCA 2017); Tritschler v. Tritschler, 273 So. 3d 1161, 1166 (Fla. 2d DCA 2019). As such, a finding on the parties’ net incomes is required. See Reese v. Reese, No. 6D23-201, 2023 WL 3400377, at *6 (Fla. 6th DCA May 12, 2023) (holding…
  • Goley v. Goley, 272 So. 3d 800 (Fla. 1st DCA 2019)

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