In a written opinion by the First District Court of Appeals on April 15, 2016, they reversed an award of alimony and attorney fees in a divorce decided by local Duval County Judge, E. McRae Mathis.   The case is entitled, “Reginald J. Nolan v. Karen D. Nolan.”  First, lets address the alimony award.  The parties in this case were married for 33 years.  The Husband traditionally worked seven days a week, overtime, and holidays throughout the marriage.  After the parties separated, the Husband reduced his working hours, which lowered his income.  At trial, the reasons the Husband gave as to his reduced hours were that the 12 hour shifts were no longer available to him and that his doctors advised him that he needed to work less.  The Wife requested to be awarded permanent periodic alimony from the Husband.  The Court awarded the Wife $3,500.00 per month permanent periodic alimony.

The Husband appealed the decision of the alimony amount to the First District Court of Appeals, arguing that the trial judge “Erred in failing to make the requisite findings to support its alimony award of $3,500 per month.”  He further argued that such an amount “Greatly exceeds the Wife’s needs and his ability to pay.”

When a trial court in Florida considers an alimony award, they must first according to the Florida Statute section 61.08(2) “Make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay.”  IF the trial court determines there is a need and an ability to pay, THEN they must consider thereafter ALL the relevant factors in Florida Statute section 61.08(2)(a)-(j).

In considering the relevant factors in the Florida Statute 61.08, the trial judge rejected the Husband’s argument that his reduction in his working hours was based upon the advice of his doctors.  The trial judge rejected this argument based upon it not being supported by any evidence.  Consequently, the trial judge specifically found, “The husband should not be required to work seven days a week.”   The Appeallate Court found that the trial judge contradicted himself in his rationale for the award of the alimony in the amount of $3,500.00, by his statement regarding the husband not being required to work seven days a week, but then calculating the alimony amount with him working seven days per week.

What the trial judge was considering in the award of the alimony was the factor listed in the Florida Statute section 61.08(2)(i), which states that the trial judge is to consider in an alimony award, “All sources of income available to either party.”  This factor includes the consideration of overtime and bonuses.  What the Appeallate court found is that because the trial judge recognized that a seven day work week is not reasonable and that the husband should not be required to work seven days per week, that the overtime pay he previously enjoyed was no longer available to him as an income source.  So, the trial court in error considered the overtime income in its calculation of the alimony award.

On a side note, when the trial judge considers overtime and/or bonuses in a calculation of alimony, the person requesting the alimony must show that the overtime and/or bonuses will be available as an income source in the future.  Just because someone earns overtime and/or bonuses in the past, does not mean they will earn it in the future.  This is where EVIDENCE is important in a trial dealing with this issue.

Next, on the award of the attorney fees, the Appeallate Court further found that the trial judge erred in his ruling.  The trial judge ordered the Husband to pay to the Wife the total sum of $11,500.00 in attorney fees.  Pursuant to Florida Statute section 61.16, the trial court has the authority to “Order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties.”  The trial judge in this case awarded the wife substantial assets, $3,500.00 per month in alimony, the marital home and half of the husband’s retirement accounts.  What the Appeallate court found was that after the awards to each of the parties of the assets and the alimony award to the Wife, the parties were placed in equal financial positions.  Once the parties were placed in these equal financial positions, they were equally able to pay their own attorney fees.  Thus, the Appeallate court remanded the decision of the attorney fees back to the trial court to reconsider along with the alimony award amount.

If you have further questions about the ruling of this case, email me as lcgardner@coplan-gardnerlaw.com.  You can read the entire opinion by the First District Court of Appeals at their website at www.1dca.org/opinions.