Opinion
Case No. 5D19-3463
05-22-2020
Daila Espeut JONES, Appellant, v. Atlas Ray JONES, Appellee.
Wayne C. Golding, Sr., of The Golding Law Group, PLC, Orlando, for Appellant. Sasha A. Watson, of Hawm Law PLLC, Orlando, for Appellee.
Wayne C. Golding, Sr., of The Golding Law Group, PLC, Orlando, for Appellant.
Sasha A. Watson, of Hawm Law PLLC, Orlando, for Appellee.
LAMBERT, J.
Daila Espeut Jones ("Wife") appeals the trial court's order granting Atlas Ray Jones ("Husband") temporary alimony of $500 per month and directing her to recover $130,000 that she had previously transferred from a savings account to a family friend shortly before Husband instituted the dissolution of marriage proceedings and to place these funds in her attorney's trust account pending the entry of a final judgment. As to this latter issue, Husband agrees that the order is "facially deficient in that it fails to set forth the required factual findings and elements required for an injunction." See Rosasco v. Rosasco , 641 So. 2d 493, 494–95 (Fla. 1st DCA 1994) ("Because the order under review required the Husband to accomplish the affirmative act of placing certain funds in an escrow account and thereby lose control and use of the funds pending the resolution of this litigation, the trial court's order is in the nature of an injunction." (citing CMR Distribs., Inc. v. Resolution Tr. Corp. , 593 So. 2d 593, 594 (Fla. 3d DCA 1992) ; Konover Realty Assocs., Ltd. v. Mladen , 511 So. 2d 705, 706 (Fla. 3d DCA 1987) )).
As explained below, we affirm the temporary alimony award because the trial court did not abuse its discretion. See Coviello v. Coviello , 89 So. 3d 1116, 1117 (Fla. 4th DCA 2012) ("It is a very basic appellate truism that temporary relief awards are among the areas where trial judges have the very broadest discretion, which appellate courts are very reluctant to interfere with except under the most compelling circumstances." (quoting Pedraja v. Garcia , 667 So. 2d 461, 462 (Fla. 4th DCA 1996) )).
We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii) a. to review orders granting temporary alimony and under rule 9.130(a)(3)(B) to review the issuance of a temporary injunction.
Husband and Wife were the only witnesses testifying at the temporary relief hearing. They were married for approximately eleven years before Husband filed for the dissolution of marriage. Wife is gainfully employed, earning approximately $2400 every two weeks. Husband was not employed at the time of the hearing. Wife additionally receives approximately $4000 per month in disability and retirement benefits from the military. Husband is also a disabled military veteran. He testified at the hearing that he receives a monthly VA disability payment of $3352.41. Husband also testified to his various monthly expenses.
"In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony." Bengisu v. Bengisu , 12 So. 3d 283, 286 (Fla. 4th DCA 2009) (citing Stern v. Stern , 907 So. 2d 701, 702 (Fla. 4th DCA 2005) ). Here, Wife has not challenged her ability to pay the temporary alimony award. Moreover, after weighing the testimony, the trial court found that Husband's monthly income was somewhat below his present monthly expenses. Accordingly, because both Husband's need and Wife's ability to pay the temporary alimony were supported by competent substantial evidence, See Driscoll v. Driscoll , 915 So. 2d 771, 773 (Fla. 2d DCA 2005) (holding that both need and ability to pay temporary alimony must be supported by competent substantial evidence), we conclude that the trial court did not abuse its very broad discretion with the temporary alimony award.
We further note that temporary alimony orders are frequently based upon an abbreviated hearing and limited evidence. They do not create vested rights and can be modified or vacated by the trial court while the litigation proceeds. Ghay v. Ghay , 954 So. 2d 1186, 1190 (Fla. 2d DCA 2007). Additionally, any alleged inequity in the temporary alimony award "can usually be resolved in the final judgment, after a full and fair opportunity to be heard." Id.
Here, in their respective petitions, Husband and Wife are each seeking an award of alimony from the other. They will be entitled to a full and fair opportunity at the final hearing to present evidence and argument as to the various factors enumerated in section 61.08(2), Florida Statutes (2018), for the trial court to consider and evaluate in determining whether to award any of the various forms of alimony under this statute.
Accordingly, we affirm the temporary alimony award. Based upon Husband's concession, which we accept, we reverse, without prejudice, that part of the order directing Wife to deposit $130,000 into her attorney's trust account pending final judgment. We remand for the trial court to make additional factual findings to justify this injunctive relief. The court may, at its discretion, conduct an additional hearing on this issue.
Wife acknowledged below that she has the present ability to recover these funds from the family friend. Thus, we have not addressed the trial court's ability to require a non-party to this litigation to divest himself of this asset. See Martinez v. Martinez , 219 So. 3d 259, 262 (Fla. 5th DCA 2017).
AFFIRMED, in part; REVERSED, in part; and REMANDED.
EDWARDS and EISNAUGLE, JJ., concur.