SCOTT M. HANSON, Appellant,
RHONDA K. HANSON, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Wesley D.
Virginia R. Vetter, Tampa; and Donald P. DeCort, Tampa, for
Richard W. Ervin and Clifton C. Curry, Jr., of Curry Law
Group, P.A., Brandon, for Appellee.
VILLANTI, Chief Judge.
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
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.
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.
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.
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.
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.
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.
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. 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.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 ...