WAYNE TANNER, FORMER HUSBAND

v.

TERESSA TANNER, FORMER WIFE

FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

No. 1D19-1220

WAYNE TANNER, Former Husband,

Appellant,

V.

TERESSA TANNER, Former Wife,

Appellee.

On appeal from the Circuit Court for Nassau County. Robert M. Foster, Judge.

July 1, 2021

ON MOTION FOR CLARIFICATION, OR IN THE ALTERNATIVE, FOR

REHEARING

PER CURIAM.

On consideration of appellant's motion, this Court grants the motion for clarification, denies the motion for rehearing, withdraws the opinion filed April 12, 2021, and substitutes the following opinion in its place.

In this appeal, Wayne Tanner, the former husband, challenges the final judgment of dissolution of marriage from Teressa Tanner, the former wife. He raises five issues: whether the trial court failed to exercise independent decision making in rendering its final judgment, which was a verbatim adoption of the former wife's proposed order; whether the trial court abused its discretion in awarding alimony to Mrs. Tanner; whether the trial court abused its discretion in ordering Mr. Tanner to name Mrs. Tanner as his beneficiary to secure his obligation to pay alimony; whether the trial court abused its discretion in awarding Mrs. Tanner a disproportionate share of the Hilliard property; and whether the trial court abused its discretion in ordering Mr. Tanner to provide Mrs. Tanner football tickets and parking passes. We reverse on the latter four issues and thereby need not address the first.

Alimony Award

Mr. Tanner contends that the permanent and retroactive alimony amounts were erroneously based on his gross income. Additionally, Mr. Tanner contends that the trial court erred by failing to credit him for the correct amount of temporary spousal support that he paid during the parties' separation.

In determining the amount of an alimony award, section 61.08(2), Florida Statutes, requires a trial court to consider, among other factors, the parties' financial resources. Florida courts have consistently concluded that this section mandates a consideration of the parties' net incomes, not gross incomes. See Cooper v. Cooper, 278 So. 3d 765, 766 (Fla. 2d DCA 2019); Brady v. Brady, 229 So. 3d 892, 893 (Fla. 5th DCA 2017); Kingsbury v. Kingsbury, 116 So. 3d 473, 474 (Fla. 1st DCA 2013).

Here, both the permanent alimony and retroactive alimony awards in the final order were improperly based on the gross income attributed to Mr. Tanner. Additionally, the final order reflects the trial court's intention to credit Mr. Tanner for temporary spousal support paid to Mrs. Tanner during the retroactive alimony period. However, the trial court did not demonstrate how it reached the credit amount and the retroactive alimony award was not supported by competent, substantial evidence, which was error.

Maintaining Security to Ensure Ability to Pay

Next, to the extent necessary to protect an alimony award, a trial court may order an obligor to “purchase or maintain a life insurance policy or a bond, or to otherwise secure" that alimony award. § 61.08(3), Fla. Stat. (2020). However, a trial court may not require an obligor to maintain security unless it makes a specific finding that special circumstances exist. Mackoul v. Mackoul, 32 So. 3d 741, 742 (Fla. 1st DCA 2010). Here, the trial court failed to make specific findings that demonstrate the special circumstances warranting a security requirement, which also was error.

Disproportionate Share of Certain Real Property

In distributing marital assets, the trial court awarded the parties' $235,000 Hilliard Property to Mrs. Tanner, reasoning that this unequal distribution would offset Mr. Tanner's “dissipation of $40,000 from his marital IRA during the parties' separation.” Mr. Tanner contends that he withdrew the money to pay for the parties' mortgage, health insurance premiums, bills, and otherwise support their lifestyles. The trial court's distribution regarding the Hilliard Property was in error, as the final order contains no specific findings that Mr. Tanner intentionally dissipated the marital IRA account. See Gotro v. Gotro, 218 So. 3d 494, 496-97 (Fla. 1st DCA 2017) (absent any specific findings of misconduct, it is error for the trial court to assign one party an equalizer payment for the party's use of marital funds).

Invalid Equitable Distribution

Mr. Tanner correctly contends that future season football tickets and parking passes for University of Georgia football games are not marital assets, as they were not acquired during the marriage. Marital assets are those acquired during the marriage. § 61.075(6)(a)1.a, Fla. Stat. (2020). Thus, the trial court's award of the football tickets and parking passes to Mrs. Tanner is not a valid equitable distribution of marital property.

Conclusion

Based on the foregoing, we reverse and remand for reconsideration of the evidence of record, legal issues presented, and applicable law, to facilitate entry of a final judgment consistent with this opinion.

OSTERHAUS and WINOKUR, JJ., concur; MAKAR, J., concurs with opinion.