John Milton Stricklin v. Kimberly Rae Stricklin , 247 So. 3d 96 ( 2018 )


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  •          FIRST DISTRICT COURT OF APPEAL
    STATE OF FLORIDA
    _____________________________
    No. 1D16-5549
    _____________________________
    JOHN MILTON STRICKLIN,
    Appellant,
    v.
    KIMBERLY RAE STRICKLIN,
    Appellee.
    _____________________________
    On appeal from the Circuit Court for Santa Rosa County.
    David Rimmer, Judge.
    May 25, 2018
    BILBREY, J.
    John M. Stricklin, the former husband, appeals the portions
    of the final judgment awarding the former wife durational
    alimony of $2,500 per month for 48 months and finding that the
    former wife is entitled to an award of reasonable attorney’s fees
    and costs. In addition, the former husband appeals the post-
    judgment order requiring the former husband to pay $19,000 in
    unpaid attorney’s fees directly to counsel for the former wife, in
    monthly installments of $5,000, until paid in full. The final
    judgment was largely based on the report and recommendation of
    a General Magistrate (the “Report”), which was ratified,
    approved, and incorporated by the trial court. Because the final
    judgment and the Report upon which it is based fail to contain
    sufficient factual findings of the former wife’s need and the
    former husband’s ability to pay to allow for meaningful appellate
    review of the durational alimony award, reversal and remand is
    required. Likewise, because the trial court’s post-judgment order
    requiring the former husband to pay an additional $19,000
    towards the former wife’s attorney’s fees and costs fails to include
    specified findings to support the award, we must reverse and
    remand. In all other respects, the final judgment and subsequent
    order on the former wife’s omnibus motion are affirmed.
    The Report contains findings that the parties’ marriage of
    approximately seven years was irretrievably broken, that no
    minor children were involved, and that the former wife “has a
    demonstrated need and the Husband has considerably more
    assets and income for support.” The General Magistrate then
    listed each of the statutory factors required by section 61.08(2)(a)-
    (j), Florida Statutes, and made findings under each factor.
    Following the discussion in the Report pertaining to alimony, the
    General Magistrate addressed at length the equitable
    distribution of the parties’ marital assets, the parties’ access to
    non-marital assets, and the applicable liabilities.
    The General Magistrate recited various discrepancies in each
    party’s claimed incomes and expenses and noted that the former
    wife’s amended financial affidavit filed May 16, 2016, under-
    reported her housing expenses and property tax expenses.
    However, the General Magistrate did not resolve the disputed
    income and expense figures, correct the erroneous mathematical
    calculations in the parties’ affidavits, or express any method or
    formula for its determination of the former wife’s amount of need
    and the former husband’s ability to pay that or any other dollar
    amount going forward. 1 The parties submitted multiple financial
    affidavits over the course of the litigation showing various income
    and expense figures, but the Report does not determine either
    1  The Report acknowledges support payments from the
    former husband to the former wife prior to the final hearing, and
    the former husband’s provision of health insurance for the former
    wife under the Family Law Standing Pre-Trial Order not at issue
    in this appeal.
    2
    party’s income and expenses for any defined time periods. While
    the equitable distribution plan is explained in detail, we are
    unable to discern from the record how the General Magistrate
    arrived at her recommendation that the former wife be awarded
    durational alimony of $2,500 per month.
    The trial court’s adoption of the Report regarding alimony,
    over the then husband’s objection and exception to the Report,
    without comment in the final judgment entered December 27,
    2016, sheds no light on the basis for the amount of the durational
    alimony award. Accordingly, the durational alimony portion of
    the final judgment must be reversed and remanded for specific
    findings of the former wife’s need and the former husband’s
    ability to pay alimony before consideration of the other statutory
    factors. See § 61.08(2), Fla. Stat.; Bruno v. Bruno, 
    119 So. 3d 1273
    (Fla. 1st DCA 2013) (reversing durational alimony award
    and remanding for further findings of fact on disparities of
    parties’ incomes and financial resources of both parties); see also
    Broemer v. Broemer, 
    109 So. 3d 284
    (Fla. 1st DCA 2013)
    (reversing awards of bridge-the-gap alimony followed by
    durational alimony and remanding for correct determination of
    former husband’s monthly income to assess his ability to pay
    alimony).
    Considering the directive that the former husband pay the
    former wife’s attorney’s fees, the former husband fails to
    establish any abuse of the trial court’s discretion in the final
    judgment adopting the General Magistrate’s recommendation
    that the former wife is entitled to an award of reasonable
    attorney’s fees. No particular amount of fees was awarded in the
    final judgment, and the award of a “reasonable amount for
    attorney’s fees” under section 61.16(1), Florida Statutes, requires
    only that the court generally base such award on its
    consideration of the parties’ respective financial resources. The
    Report adopted by the trial court contains sufficient findings on
    the parties’ resources and relative financial positions on the date
    of that Report to support this general award.
    However, the trial court’s post-judgment award of $19,000 in
    remaining unpaid attorney’s fees and costs to the former wife, to
    be paid by the former husband in monthly installments of $5,000
    3
    until paid in full, lacks sufficient findings of fact of the former
    husband’s ability to pay. This order was entered on June 14,
    2017, more than a year after the Report of the General
    Magistrate and over six months after the final judgment was
    entered. The trial court’s finding of reasonableness for the
    $35,000 total for the former wife’s attorney’s fees, based on the
    reasonable hours expended and counsel’s hourly rate, was
    properly based on the evidence adduced at the hearing on the
    former wife’s motion. See Rosen v. Rosen, 
    696 So. 2d 697
    (Fla.
    1997). The court specifically acknowledged the $16,000 paid by
    the former husband towards the total as supported by the record.
    However, the court’s award of the remaining $19,000, to be paid
    by the former husband in $5,000 monthly installments, was not
    supported by findings of fact on the parties’ respective financial
    resources, and in particular the former husband’s ability to pay
    such installments. See 
    Broemer, 109 So. 3d at 290
    ; accord Dennis
    v. Dennis, 
    230 So. 3d 1277
    (Fla. 1st DCA 2017).
    Accordingly, the final judgment is REVERSED in part, on
    the award of durational alimony in the amount of $2,500 per
    month for a period of 48 months, and remanded for additional
    findings of fact to support any finding of the parties’ respective
    need and ability to pay such alimony for the duration specified.
    In all other aspects, the final judgment is AFFIRMED.
    The post-judgment order requiring the former husband to
    pay $19,000 in remaining unpaid attorney’s fees to counsel for
    the former wife in $5,000 monthly installments is REVERSED
    and the cause is REMANDED for additional findings of fact on
    the parties’ relevant financial resources at the applicable point in
    time, showing the former wife’s need and former husband’s
    ability to pay such fees on the terms scheduled, if any. The post-
    judgment order is otherwise AFFIRMED.
    B.L. THOMAS, C.J., and JAY, JJ., concur.
    4
    _____________________________
    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
    _____________________________
    Ross A. Keene, Pensacola, for Appellant.
    James M. Burns, Pensacola, for Appellee.
    5
    

Document Info

Docket Number: 16-5549

Citation Numbers: 247 So. 3d 96

Filed Date: 5/25/2018

Precedential Status: Precedential

Modified Date: 5/25/2018