FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Tracy
Williams, Esq. of Karol K. Williams, P.A., Tampa, for
appearance for Appellee.
Lockard Martinez, the Wife, seeks review of a final judgment
of dissolution of marriage. The Wife challenges the trial
court's decision to award her permanent periodic alimony
in the amount of $600 per month. We reverse because the
alimony award is insufficient to meet the Wife's basic
needs even though Victor Martinez, the Husband, has the
ability to pay.
time of filing, the parties had been married for thirty years
and their children were no longer minors. The parties entered
into a marital settlement agreement (MSA) which equitably
distributed their limited assets. The parties agreed to stop
making payments on the marital home, list it for short sale,
and split any proceeds. The Wife received half of the
Husband's military retirement, which amounted to $1100
monthly. Both parties took on significant marital debt. The
trial court approved the MSA and incorporated it in the final
judgment of dissolution.
Wife's request for alimony was decided after a trial at
which the Wife proceeded pro se. The Wife testified that she
worked during the marriage and took care of the parties'
children while the Husband was stationed overseas with the
military. The Wife worked as a bartender during the early
years of the marriage. She worked as a licensed real estate
agent from at least 2006 to 2011 or 2012, and she earned
between $40, 000 and $150, 000 annually with the highest
salary being paid during the real estate boom in 2006 and
2007. The Wife was in a motorcycle accident in 2012, and she
was not working at the time of trial. She had filed a claim
for federal disability benefits, but the claim was denied.
The Wife was in the process of resubmitting her claim which,
if approved, would pay $886 per month.
Wife said she paid her living expenses during these
proceedings using a legal settlement of $25, 000, voluntary
monthly payments of between $1000 and $1500 from the Husband,
and an unspecified amount of additional money the Husband
gave her upon request. She did not present a financial
affidavit listing her monthly expenses and only testified
regarding two of those expenses: (1) $1200 in rent and (2)
$567 in medical insurance. She requested that the Husband pay
$2000 in monthly alimony.
Husband testified that he was retired from the military and
working for the government on a contract basis. He was also
receiving a disability check. The Husband has a net monthly
income of $5654.78. The Husband's monthly expenses,
including payments to creditors, are approximately
$4635. He said he had been paying the Wife $900 a
month during these proceedings and acknowledged he gave her
extra money when she requested it. He asserted that the Wife
was physically capable of going back to work and had quit her
job just to "stick it to" him. In any event, he
stated he could only afford to pay $500 in alimony.
court made a general finding that the Wife has a need for
alimony and the Husband has the ability to pay. However, the
court did not make a specific calculation of the Wife's
income. The court found that the Wife was receiving the $1100
monthly retirement payment and noted that she will receive
$886 a month if her disability claim is approved. The court
also found that the Wife had made as much as $150, 000
annually as a realtor and quit work for reasons not
attributed to her medical issues. However, the court did not
indicate it was imputing income to the Wife. It merely stated
that the Wife "could probably get a good paying job and
get back to a good financial situation fairly quickly, should
she desire to do so."
court described the parties' standard of living during
the marriage as "a modest middle class lifestyle."
As for the Wife's expenses, the court stated that the
evidence presented by the Wife was "cryptic." The
only specific expense the court recognized was $1200 for
rent. The court concluded, "Despite the lack of evidence
as to Wife's specific need the Court does find that Wife
has a need for Alimony, if only to meet her only stated need,
that of an apartment." The court awarded the Wife $600
in permanent periodic alimony without specifying how it
calculated that amount.
periodic alimony is intended to allow the requesting spouse
'to maintain the standard of living established by the
parties during the marriage and to ensure that, viewing the
totality of the circumstances, one spouse is not
shortchanged.' " Zinovoy v. Zinovoy, 50
So.3d 763, 766 (Fla. 2d DCA 2010) (quoting Griffin v.
Griffin, 906 So.2d 386, 388 (Fla. 2d DCA 2005)). The
trial court has broad discretion in awarding alimony, but the
award must be commensurate with one spouse's need and the
other's ability to pay. Id. at 766-67. The award
will only be affirmed if it is supported by competent,
substantial evidence. Id. at 766.
conclude that the $600 alimony award is not supported by
competent, substantial evidence. Indeed, it is insufficient
to meet the Wife's basic needs even though the Husband
has the ability to pay. As to the Wife's income, the
evidence was sufficient to establish only that the Wife was
receiving $1100 monthly from the Husband's military
retirement. Although the trial court noted that the Wife will
receive $886 a month if her disability claim is approved, the
court could not rely on this income because it was based on