Summary
remanding for the trial court to recalculate alimony because it improperly calculated the award based on both parties’ imputed gross incomes
Summary of this case from Lopez v. LopezOpinion
Case No. 2D19-1105
01-22-2021
Edward J. HAMPSON, Appellant/Cross-Appellee, v. Joan M. HAMPSON, Appellee/Cross-Appellant.
Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant/Cross-Appellee. Victor R. Smith and Jeffrey I. Burry of Victor Smith Law Group, P.A., Winter Haven, for Appellee/Cross-Appellant.
Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant/Cross-Appellee.
Victor R. Smith and Jeffrey I. Burry of Victor Smith Law Group, P.A., Winter Haven, for Appellee/Cross-Appellant.
LABRIT, Judge.
Edward Hampson (Former Husband) appeals the final judgment dissolving his marriage to Joan Hampson (Former Wife), challenging the award of permanent, periodic alimony on multiple grounds; he also challenges the denial of his motion for rehearing. Former Wife cross-appeals the denial of her request for attorneys' fees and costs. Only one issue warrants reversal. We reverse and remand to recalculate alimony based on net income instead of gross income. Because this recalculation will require consideration of Former Husband's current salary (which was unknown to the trial court when the final judgment issued), on remand the trial court should reconsider both the amount of alimony and whether to award attorneys' fees and costs to Former Wife.
Background
After nearly thirty years of marriage, Former Wife filed a petition for dissolution in March 2017. Former Wife was the primary caregiver for the couple's four children, and in recent years, began working part-time outside the home. Former Husband held an executive position with a distribution company until his employment ended in October 2017. Former Husband was continuously unemployed from October 2017 up to the time of the dissolution hearing in October 2018.
The parties were both evaluated by a vocational expert and stipulated to admission of the expert's reports for the trial court's consideration in determining alimony. The trial court imputed annual income of $17,850 to Former Wife and $104,131 to Former Husband. The trial court awarded Former Wife $3500 in permanent, periodic alimony.
Discussion
The alimony award was based on both parties' imputed gross incomes. Basing an alimony award on gross income rather than net income is reversible error. Hanson v. Hanson, 217 So. 3d 1165, 1166 (Fla. 2d DCA 2017) ("An award of alimony must be based on the income that is available to the party, i.e., the party's net monthly income." (quoting Moore v. Moore, 157 So. 3d 435, 436 (Fla. 2d DCA 2015) )). Accordingly, we remand for the trial court to recalculate alimony based on the parties' net incomes.
After the dissolution hearing but before entry of the final judgment, Former Husband secured new employment with an annual salary lower than the annual gross income that was imputed to him. Former Husband did not disclose this information to the trial court until he moved for rehearing in January 2019. Although the trial court properly denied the motion for rehearing, the trial court should consider Former Husband's current income when it recalculates alimony on remand. See, e.g., Tritschler v. Tritschler, 273 So. 3d 1161, 1167 (Fla. 2d DCA 2019) ("On remand, the trial court must reconsider the alimony award using the parties' respective net incomes and taking additional evidence if necessary on the parties' current incomes.").
The dissolution hearing was held on October 11, 2018. Former Husband received the subject job offer on November 21, 2018, and began employment on December 3, 2018. The court announced its rulings on December 7, 2018, in a detailed letter to the parties' counsels. Consistent with that letter, the judgment was prepared by Former Wife's attorney and reviewed by Former Husband's attorney before it was submitted to the trial court on December 19, 2018. The judgment was signed on December 31, 2018, and filed by the clerk on January 8, 2019. Former Husband filed his motion for rehearing on January 16, 2019, arguing that the trial court should reconsider the alimony award in light of "newly discovered evidence" concerning his employment and salary.
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As to Former Wife's cross-appeal, the trial court did not abuse its discretion by denying her request for attorneys' fees and costs, but it may revisit this issue on remand. See Broemer v. Broemer, 109 So. 3d 284, 290 (Fla. 1st DCA 2013) ("We find no abuse of discretion in denying the [fee] motion. ... [H]owever, we note that if it alters the parties' respective financial circumstances on remand, the court may revisit the motion for attorney's fees and costs and account for any changes that would affect the outcome under section 61.16[, Florida Statutes (2011) ]." (first citing Sellers v. Sellers, 68 So. 3d 348, 351 (Fla. 1st DCA 2011) ; and then citing Perez v. Perez, 882 So. 2d 537, 539 (Fla. 3d DCA 2004) )).
Affirmed in part, reversed in part, and remanded.
KHOUZAM, C.J., and BLACK, J., Concur.