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Hanson v. Hanson

Florida Court of Appeals, Second District

April 28, 2017

SCOTT M. HANSON, Appellant,


         Appeal from the Circuit Court for Hillsborough County; Wesley D. Tibbals, Judge.

          Virginia R. Vetter, Tampa; and Donald P. DeCort, Tampa, for Appellant.

          Richard W. Ervin and Clifton C. Curry, Jr., of Curry Law Group, P.A., Brandon, for Appellee.

          VILLANTI, Chief Judge.

         Scott Hanson (the Husband) appeals the amended final judgment of dissolution of his marriage to Rhonda Hanson (the Wife), raising three issues for review. First, we reject the Husband's claim concerning the court's decision to distribute the liability for accrued interest payable on certain notes to him in the equitable distribution scheme without further comment. Second, we reverse the alimony award and remand for recalculation because the trial court erred by basing that award on the Husband's gross income rather than his net income. Finally, we reverse the portion of the judgment requiring the Husband to pay a portion of the Wife's attorney's fees and remand for reconsideration under the correct legal standard. In all other respects, we affirm.

         Alimony Award

         As to the alimony award, the Husband contends that the trial court erred by basing that award on his gross income rather than on his net income. This contention is supported by the record and requires us to reverse and remand for recalculation of the amount of alimony.

         There is no dispute on this issue as to the law. "An award of alimony must be based on the income that is available to the party, i.e., the party's net monthly income." Moore v. Moore, 157 So.3d 435, 436 (Fla. 2d DCA 2015); see also Badgley v. Sanchez, 165 So.3d 742, 744 (Fla. 4th DCA 2015) ("The judgment is also deficient for failing to look to the parties' net incomes in assessing need and ability to pay."); Gilliard v. Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) ("A party's ability to pay alimony should be based on the party's net income; not gross income."); Kingsbury v. Kingsbury, 116 So.3d 473, 474 (Fla. 1st DCA 2013). An alimony award based on gross income must be reversed. See, e.g., Moore, 157 So.3d at 437; Badgley, 165 So.3d at 744-45.

         Here, the amended final judgment plainly states that the Husband has "current monthly gross income of $6, 842" and a monthly surplus of "$1, 695 before considering tax implications and imputing income." (Emphasis added.) And while the trial court subsequently imputed $300 per month in investment income to the Husband, nowhere in the amended final judgment did the trial court address the "tax implications" on the Husband's gross income. Further, we note that the $2000 monthly alimony award is almost exactly the amount of the Husband's pre-tax surplus of $1695 plus his imputed investment income of $300. Hence, it is readily apparent that the trial court erroneously failed to consider the Husband's net income rather than his gross income when fashioning its alimony award.

         In defense of the trial court's ruling, the Wife argues that the trial court could and did impute investment income to the Husband when determining his ability to pay. However, this is simply a non sequitur. The court's decision to impute investment income to the Husband does not bear on the issue of whether the court properly considered only the Husband's net income when determining alimony. Therefore, this argument cannot support the alimony award.

         The Wife also argues for the first time in her brief that the Husband could take tax-free distributions from his IRAs to "make up the difference" between his net income and what he needs to pay the alimony award; however, this argument suffers from three infirmities. First, the Wife never made this argument in the trial court, and so no evidence was presented concerning the Husband's ability-or lack thereof-to take tax-free IRA distributions. Second, this argument conflicts with the trial court's express factual finding that neither party was able to take IRA distributions without penalty at this point in time. Third, this argument implicitly recognizes that the trial court awarded alimony in an amount that the Husband is simply not able to pay from his monthly net income. Hence, this newly raised argument cannot support the alimony award to the Wife.

         For all of these reasons, we must reverse the $2000 per month alimony award and remand for reconsideration. And because we are doing so, we will briefly address two issues raised by the Husband in case they arise again on remand. First, the Husband contends that the trial court erred in its evaluation of the parties' relative lifestyles for purposes of determining their respective monthly needs. However, the trial court found that the Wife had a lifestyle need of $5983 and the Husband had a lifestyle need of $5147. Given that the Wife's monthly rent was $2000 and the Husband's monthly mortgage was $1464 for a comparable residence, this difference in the calculated lifestyle needs of the parties was not so disparate as to constitute an abuse of discretion.

         Second, the Husband contends that the trial court erred by adding the $219 monthly premium for additional Survivor Benefit Plan (SBP) coverage to the Wife's monthly need.[1] The Husband argues that because the Wife chose to purchase SBP coverage over and above her coverture amount, she should be solely responsible for the premium as a voluntary expense rather than a "need." While the trial court certainly could have determined that this was a voluntary expense incurred by the Wife, it was within the trial court's discretion to consider this premium as part of the Wife's need, particularly since the Wife's portion of the Husband's retirement benefit would otherwise be significantly reduced upon his death and the alimony award will also cease at that time. In essence, the trial court's ruling was analogous to requiring the Husband to purchase and pay for life insurance to secure his alimony obligation to the Wife-a requirement clearly within the trial court's discretion to impose.[2]See Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla. 1989) (holding that section 61.08(3), Florida Statutes, permits a trial court to order an obligated spouse to obtain life insurance or similar security to protect the receiving spouse's alimony award in appropriate circumstances); Wrinkle v. Wrinkle, 592 So.2d 760, 761 (Fla. 5th DCA 1992) (analogizing the use of SBP benefits to the use of life insurance as security for the payment of alimony). And while we can appreciate the Husband wanting to limit the Wife to her "standard" benefit, under the facts here-where the Wife did not work during the parties' long-term marriage and where she has limited earning capacity due to medical issues-we cannot say that the trial court's ruling that will permit her to receive an amount after the Husband's death comparable to what she will be receiving during the ...

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