Opinion
No. 1D20-2248
08-17-2021
Jessica MURKERSON, Appellant, v. Michael MURKERSON, Appellee.
Brian K. Washington of Atwater & Washington, P.A., Orange Park, for Appellant. Jessie L. Harrell of The Harrell Firm, Jacksonville; Tawny L. Rountree of Owenby Law, P.A., St. Augustine, for Appellee.
Brian K. Washington of Atwater & Washington, P.A., Orange Park, for Appellant.
Jessie L. Harrell of The Harrell Firm, Jacksonville; Tawny L. Rountree of Owenby Law, P.A., St. Augustine, for Appellee.
Per Curiam. Jessica Murkerson appeals an amended final judgment of dissolution of marriage awarding her exclusive use and possession of the marital home until January 1, 2023, and rehabilitative alimony. She argues that the trial court erred by not awarding her exclusive use and possession of the home until the parties' youngest child reaches the age of majority. She also argues that the court erred by not awarding her permanent alimony and by failing to make specific findings related to her financial needs and Husband's ability to pay. We affirm in part, reverse in part, and remand.
The parties were married for 14 years and have three minor children. Wife argues first that the trial court erred by awarding her exclusive use and possession of the marital home only until January 1, 2023, or until she marries or vacates the home. We review a trial court's decision regarding exclusive use and possession of the marital home for an abuse of discretion. See Kirkland v. Kirkland , 568 So. 2d 494, 495 (Fla. 1st DCA 1990). "As a general rule, a trial court may award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or the primary residential parent remarries, unless there are special circumstances." Martin v. Martin , 959 So. 2d 803, 805 (Fla. 1st DCA 2007) (citing Martinez v. Martinez , 573 So. 2d 37, 43 (Fla. 1st DCA 1990) ). "The parties' relative financial positions along with other considerations may constitute special circumstances." Id. (citing Dehler v. Dehler , 648 So. 2d 819, 820 (Fla. 4th DCA 1995) ).
Here, the parties stipulated that Wife would be designated as the majority timesharing parent. Wife was awarded the home until January 1, 2023, at which point the parties' children would be fifteen, twelve, and six years old. The trial court declined to grant Wife exclusive use and possession for the approximately fifteen-year period until the youngest child reaches majority based on two considerations supported by the evidence. First, the trial court found that Husband could not purchase a home for himself and the children so long as he remained responsible for the mortgage on the marital home. Second, the court found that Wife would have sufficient income and equity needed to refinance the marital home for herself before the temporary possession period expires. We see no abuse of discretion as to the temporary home award under these circumstances.
Wife next challenges the trial court's alimony award, arguing that the court failed to make sufficient factual findings as to her need for alimony and Husband's ability to pay. We agree. This Court reviews an award of alimony for abuse of discretion. Kurtanovic v. Kurtanovic , 248 So. 3d 247, 251 (Fla. 1st DCA 2018) (citing Abbott v. Abbott , 187 So. 3d 326, 327 (Fla. 1st DCA 2016) ). "An alimony award must be supported by sufficient findings to demonstrate that the payee spouse has a need for the amount of alimony awarded and the payer spouse has the ability to pay that amount." Ketcher v. Ketcher , 188 So. 3d 991, 993 (Fla. 1st DCA 2016) (first citing Matajek v. Skowronska , 927 So. 2d 981, 987 (Fla. 5th DCA 2006) ; then citing O'Connor v. O'Connor , 782 So. 2d 502, 503–04 (Fla. 2d DCA 2001) ). While the final order makes specific findings of the Wife's need for alimony and Husband's ability to pay, see § 61.08(2), Fla. Stat., we cannot determine how it arrived at the alimony amount. We thus reverse and remand for additional findings. See Burnett v. Burnett , 237 So. 3d 447, 449 (Fla. 1st DCA 2018) ("[T]his Court will reverse when ‘the final judgment does not reveal how the trial court arrived at the sum of’ alimony it awarded ...." (quoting Winney v. Winney , 979 So. 2d 396, 401 (Fla. 1st DCA 2008) )).
The lack of findings also prevents our review of the attorney's fee issue raised by Wife. Section 61.16(1), Florida Statutes, provides that "[t]he court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter." Because the trial court did not make specific findings relating to Husband's expenses, we reverse and remand for additional findings. See, e.g. , Powers v. Powers , 193 So. 3d 1047 (Fla. 2d DCA 2016) (reversing and remanding for trial court to make factual findings as to the parties' relative financial needs and abilities sufficient to permit meaningful appellate review of its denial of wife's request for attorneys' fees and costs).
Wife also challenges the type of alimony awarded, arguing she was entitled to permanent alimony, not just rehabilitative alimony. In this moderate-term marriage, "[p]ermanent alimony may only be awarded ... if such award is based upon clear and convincing evidence taking into consideration all the factors set forth in section 61.08(2)." Pricher v. Pricher , 300 So. 3d 1258, 1260 (Fla. 5th DCA 2020) ; see also § 61.08(8), Fla. Stat. Wife primarily argues that permanent alimony was warranted because of the parties' disparity in income. But this Court has recognized that a "[s]imple disparity in income will not support an award of permanent periodic alimony." Walker v. Walker , 85 So. 3d 553, 554 (Fla. 1st DCA 2012) (first citing Rosecan v. Springer , 845 So. 2d 927, 929 (Fla. 4th DCA 2003) ; then citing Langevin v. Langevin , 698 So. 2d 601 (Fla. 4th DCA 1997) ; and then citing Wright v. Wright , 613 So. 2d 1330 (Fla. 4th DCA 1993) ); see also Margaretten v. Margaretten , 101 So. 3d 395, 397 (Fla. 1st DCA 2012) ("The parties' disparate earning capacity is a ‘significant factor’ in determining whether permanent alimony is appropriate; however, this factor is not sufficient by itself to justify an award of permanent alimony or to rule out other forms of alimony." (citation omitted)). Wife focuses on the parties' disparity in income. But she has not shown by clear and convincing evidence that permanent alimony is necessarily warranted based on other § 61.08(2) factors (such as, for instance, the parties' relative youth and earning prospects). We cannot conclude that the trial court abused its discretion here.
Finally, we affirm without comment on the issue related to the trial court's handling of childcare expenses and § 61.30(7), an argument raised here for the first time.
AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.
B.L. Thomas, Osterhaus, and M.K. Thomas, JJ., concur.