MARYBETH F. NEWMAN n/k/a MARYBETH FARRELL, Appellant,
JON MICHAEL NEWMAN, Appellee.
final until disposition of timely filed motion for rehearing.
appeal and cross-appeal from the Circuit Court for the
Fifteenth Judicial Circuit, Palm Beach County; Krista Marx,
Judge; L.T. Case No. 502012DR008050XXXXNB.
Charles H. Burns, Tequesta, for appellant.
C. Brady and Frank R. Brady of Brady & Brady, P.A., Boca
Raton, for appellee.
these consolidated appeals, Marybeth Newman ("Former
Wife") and Jon Newman ("Former Husband") each
challenge aspects of the final judgment dissolving the
parties' seventeen-year marriage (case no. 14-4842) and
Former Husband challenges the court's entry of separate
money judgments for sums awarded in the final judgment of
dissolution (cases no. 15-0792 and 15-1342). We find merit in
Former Wife's challenge to the court's alimony
determination as reflected in the final judgment of
dissolution, and reverse and remand for further proceedings.
Finding no merit in the remaining arguments raised by the
parties, we affirm the remainder of the final judgment of
dissolution and ensuing money judgments without further
parties were married in 1995 and Former Wife filed her
petition for dissolution of the marriage in August of 2012.
During the course of the marriage, Former Husband operated
several marine related family businesses and Former Wife was
a stay-at-home mother. The parties enjoyed a comfortable
middle-class lifestyle throughout the marriage, acquiring a
house in a nice neighborhood and a 41' custom-built boat
with little debt. In her petition, Former Wife asked for
temporary and permanent periodic alimony as well as child
support for the parties' minor children.
the inception of the dissolution proceedings, Former Husband
was less than cooperative in providing Former Wife with
adequate discovery regarding the value of his business
interests and income. This was especially true as it
pertained to a boat-chartering business run by Former
Husband, Dykoke Enterprises, Inc. In each of his financial
affidavits, Former Husband claimed that he earned no income
from the charter business and did not assign a value to his
interest in the business. Despite Former Wife's multiple
requests for production as well as the trial court's
order compelling Former Husband to produce the requested
records, Former Husband failed to produce invoices or
adequate bank records relating to his charter business.
case proceeded to trial wherein Former Wife testified that
after filing for dissolution, she began working as a
housekeeper and earned approximately $20, 000 a year. Former
Wife testified that after factoring in the cash Former
Husband earned from his charter business, Former Husband
actually earned more than double what he was reporting in his
tax returns and financial affidavits. She testified that over
the last four years, Former Husband chartered an average of
four trips a week and charged upwards of $1, 000 per trip.
Based on Former Husband's representations to her during
their marriage, Former Wife believed Former Husband earned
about $70, 000 a year cash operating his charter business.
She admitted that she did not have proof of this, but
explained that it was because Former Husband refused to
provide her with the business and financial records she
Husband's forensic accountant, on the other hand,
testified that the only asset of Dykoke Enterprises, Inc. as
of the date of Former Wife's petition was a bank account
containing $99. Although the accountant was not provided with
any tax returns for the company, he opined that Former
Husband did not earn any income from Dykoke Enterprises, Inc.
and testified that Former Husband's average annual income
was around $66, 560. Former Husband testified that his
charter business did not generate any revenue past the
carrying costs for the boat. This was despite the fact that
he admitted to having clients such as the Discovery Channel,
National Geographic, the BBC, and the University of Miami who
he charged $1, 500-$3, 000 a day.
the evidence, the court denied Former Wife's request for
permanent periodic alimony. Although the court found that
Former Wife had a need for alimony, it also found, after
making a balancing payment and paying child support, Former
Husband would not have enough liquidity or leftover income to
pay alimony. The trial court found that Former Husband's
net monthly income for purposes of determining his ability to
pay alimony was $4, 325. In arriving at this figure, the
court did not consider any income from Former Husband's
charter business, explaining that there was
"insufficient proof" of the amount. This was
despite its findings that Former Husband's testimony was
"incredulous" and that the lack of proof was
because "[Former] Husband did not provide in discovery
the invoices or all of the bank statements necessary to
determine the actual earnings of his charter boat
business." We hold that the court's ability to pay
determination was error.
61.08, Florida's alimony statute, provides that when
determining the proper type and amount of alimony, the court
must consider "[a]ll sources of income available to
either party." § 61.08(2)(i), Fla. Stat. (2012).
The court must do the same when making a need and ability to
pay determination. Mills v. Mills, 62 So.3d 672,
675-76 (Fla. 2d DCA 2011) (reversing and remanding an alimony
determination because "the trial court did not include
the value of the former husband's business income or the
value of in kind payments made on his behalf when it
determined the former husband's ability to pay");
Smith v. Smith, 575 So.2d 228, 229 (Fla. 2d DCA
1991) (trial court erred when making its ability to pay
determination by not considering all sources of income
available to husband).
Section 61.046 broadly defines "income" as follows:
[A]ny form of payment to an individual, regardless of source,
including, but not limited to: wages, salary, commissions and
bonuses, compensation as an independent contractor,
worker's compensation, disability benefits, annuity and
retirement benefits, pensions, dividends, interest,
royalties, trusts, and any other payments, made by any
person, private entity, federal or state government, or any
unit of local government. United States Department of
Veterans Affairs disability benefits and reemployment
assistance or unemployment ...