Opinion
Case No. 5D20-659
05-28-2021
Tracey McDonald SMITH, Appellant, v. Howard Millard SMITH, Appellee.
Ronald W. Sikes and Alan J. Bent, of Sikes Law Group, PLLC, Winter Garden, for Appellant. Paul David Shafranksi, of Artemis Family Law Group PLLC, Orlando, for Appellee.
Ronald W. Sikes and Alan J. Bent, of Sikes Law Group, PLLC, Winter Garden, for Appellant.
Paul David Shafranksi, of Artemis Family Law Group PLLC, Orlando, for Appellee.
EDWARDS, J.
Tracey McDonald Smith ("Former Wife") appeals the final judgment that: dissolved her sixteen year marriage to Howard M. Smith ("Former Husband"), distributed the parties’ marital assets, denied her alimony, and denied her request that Former Husband should help pay for her attorney's fees. We are hampered in our review of the issues raised due to Former Wife providing less than full transcripts of the proceedings below. See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150, 1152 (Fla. 1979). Indeed, there was no court reporter for two of the four days on which trial took place.
Former Wife correctly argues that there is an error which is apparent from the face of the final judgment regarding the trial court's failure to award her alimony of any type; we can address that. See Chirino v. Chirino , 710 So. 2d 696, 697 (Fla. 2d DCA 1998). Although the trial court found that Former Wife had some need for alimony, it found that Former Husband lacked the ability to pay given that his then-current financial affidavit reflected that his expenses exceeded his income each month.
However, Former Husband's financial affidavit included expenses of the parties’ independent, adult children that he voluntarily paid. The expenses that a former spouse incurs for an adult child are not properly included or considered for purposes of determining if an award of alimony is appropriate. Wolfe v. Wolfe , 953 So. 2d 632, 636 (Fla. 4th DCA 2007). Former Wife argues that the children's expenses claimed by Former Husband exceed $2,200 monthly, while Former Husband states that those expenses total $1,465 monthly, which he concedes should not have been considered by the trial court. When those expenses are excluded, Former Husband would not have been in a deficit situation; thus, the basis for the trial court's denying Former Wife's request for alimony is not supported by competent substantial evidence.
Accordingly, we reverse the final judgment to the extent it did not order payment of alimony to Former Wife, and remand for the trial court to reconsider the parties’ relative need for and ability to pay alimony using appropriate financial information. In all other aspects, we affirm.
AFFIRMED in part; REVERSED in part; and REMANDED with instructions.
EVANDER, C.J. and LAMBERT, J., concur.