Conlin v. Conlin , 212 So. 3d 487 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
FLOYD CONLIN, )
)
Appellant, )
)
v. ) Case No. 2D16-1442
)
STEPHANIE CONLIN, )
)
Appellee. )
)
Opinion filed March 1, 2017.
Appeal from the Circuit Court for
Hillsborough County; Richard A. Nielsen,
Judge.
George E. Gelb of Jupiter Legal Advocates,
Jupiter, for Appellant.
Michael S. Dyer of The Law Offices of
Michael Samuel Dyer, West Palm Beach,
for Appellee.
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
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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
income 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) ("[M]eaningful appellate review is
hampered by the absence of findings as to how the trial court determined the income
amount.").
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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 "[i]dentification 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 responsibility 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
1
We recognize that the entirety of the blame for this error should not fall on
the trial court. At the close of the hearing, the court instructed both parties to submit a
proposed final judgment with an equitable distribution chart attached, and the former
husband apparently failed to do so. Cf. McCants, 984 So. 2d at 683 (stating that the
wife arguably waived her claim that the trial court erred in failing to distribute all marital
assets and liabilities because despite the court sending the wife a memo of its findings
to aid her in drafting the final judgment and instructing her to notify the court in the event
it neglected to address anything in its memo, the wife failed to so notify the court and
instead prepared a final judgment absent the required findings and distribution of assets
and liabilities). Additionally, though the former husband referenced his equitable
distribution chart in testifying about the loan, our record does not reflect that it was
marked as an exhibit and admitted. Further, the former husband did not raise this issue
in a timely motion for rehearing.
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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 nonmarital 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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