FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, John Galluzzo,
N. Bogdanoff, of The Carlyle Appellate Law Firm, The
Villages, for Appellant.
Appearance for Appellee.
Brady ("Former Wife") appeals the final judgment
dissolving her marriage to Guy Brady ("Former
Husband"), raising several issues for review. Because we
find merit in three of her arguments, we reverse the
judgment, in part, and remand for further proceedings.
Former Wife challenges the $800 per month permanent periodic
alimony awarded to Former Husband and the $22, 400 awarded to
Former Husband for retroactive alimony computed at $800 per
month over the twenty-eight-month period from the filing of
the petition for dissolution of marriage to trial. Former
Wife correctly argues that the trial court erred in basing
the alimony award on the parties' respective gross
incomes and not their net incomes. See 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."
(citing Kingsbury v. Kingsbury, 116 So.3d 473, 474
(Fla. 1st DCA 2013)). On remand, the trial court must first
determine the parties' respective monthly net incomes and
thereafter make a specific determination as to whether Former
Husband has the need for alimony and whether Former Wife has
the ability to pay alimony, not only prospectively but also
for an award of retroactive alimony. See Motie v.
Motie, 132 So.3d 1210, 1213- 14 (Fla. 5th DCA 2014)
(holding that the trial court erred in not making any
findings of fact regarding the one spouse's need or the
payor spouse's ability to pay during the retroactive
Former Wife contends that the trial court erred in requiring
that she maintain a $500, 000 life insurance policy as
security for her alimony obligation. Section 61.08(3),
Florida Statutes (2015), permits the trial court to order a
party to purchase or maintain a life insurance policy as
security for payment of alimony. However, to do so, the trial
court must make findings in the final judgment as to the
spouse's insurability, the cost of the proposed
insurance, the ability of the spouse to afford the insurance,
and whether appropriate circumstances exist to justify
ordering the spouse to maintain this life insurance. See
Bracero v. Bracero, 849 So.2d 388, 390 (Fla. 5th DCA
2003) (citing Layeni v. Layeni, 843 So.2d 295 (Fla.
5th DCA 2003); Lopez v. Lopez, 780 So.2d 164 (Fla.
2d DCA 2001)). These factual findings are lacking in the
present final judgment. Thus, if the trial court again awards
Former Husband permanent periodic alimony on remand, it may,
in its discretion, require Former Wife to maintain an
appropriate amount of life insurance as security for
her alimony obligation, but it must make the required
findings to support that determination.
Former Wife argues that the trial court abused its discretion
in ordering her to pay $5000 in attorney's fees to Former
Husband. We agree. "The standard for the trial
court's award of attorney's fees in a dissolution
action first depends upon the financial need of the
requesting party and the financial ability to pay of the
other party." Ortiz v. Ortiz, 42 Fla.L.Weekly
D2025 (Fla. 3d DCA Sept. 20, 2017) (citing Derrevere v.
Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005);
§ 61.16, Fla. Stat. (2016)). Moreover, if the trial
court finds that an entitlement to an award of attorney's
fees has been established based upon the need and the ability
to pay, the court must then make factual findings that
justify the specific amount of fees awarded. Id.
trial court made no findings as to a reasonable hourly rate
for Former Husband's attorney's services nor a
reasonable number of hours for the attorney to have expended
in representing Former Husband. The only basis provided by
the court in its final judgment for this award is that Former
Husband testified that he owes his attorney $5000 for taking
this case to trial and asked that Former Wife be required to
pay these fees. However, simply awarding the amount charged
by an attorney without additional findings of fact is
improper and an abuse of discretion. Id. (quoting
Campbell v. Campbell, 46 So.3d 1221, 1223 (Fla. 4th
DCA 2010)). On remand, after first addressing alimony, if the
trial court thereafter finds that Former Husband is entitled
to an award of attorney's fees, cf. Galligar v.
Galligar, 77 So.3d 808, 813 (Fla. 1st DCA 2011) (holding
that trial court abused its discretion in awarding
attorney's fees where an equitable distribution of the
marital property has been achieved and the trial court has
equalized incomes through its alimony award), then it must
also make the required factual findings to support the amount
of the attorney fee award.
Former Wife asserts that the trial court committed three
separate errors in its equitable distribution of the
parties' marital assets and liabilities. Our standard of
review of a trial court's determination of equitable
distribution is abuse of discretion. Coleman v.
Bland, 187 So.3d 298, 299 (Fla. 5th DCA 2016) (quoting
Bardowell v. Bardowell, 975 So.2d 628, 629 (Fla. 4th
DCA 2008)). We find no abuse of discretion in the trial
court's distribution of the marital assets and
liabilities, but we conclude that the trial court made a
mathematical error in the final judgment that must be
corrected. In its equitable distribution of the marital
assets and liabilities, the net amount distributed to Former
Wife exceeded Former Husband's net benefit by $28,
407.27. To rectify this uneven distribution, the trial court
ordered that Former Wife pay an "equalizing
payment" to Former Husband of $28, 407.27 to achieve an
equal division of the assets and liabilities. However, this
equalizing payment merely switched the parties' positions
so that Former Husband's net benefit from the equitable
distribution now exceeds Former Wife's by the same $28,
407.27. The mathematically correct equalizing payment is $14,
203.64. Therefore, on remand, the trial court is directed to
amend the final judgment to reduce Former Wife's
equalizing payment to Former Husband to $14, 203.64. See
Smith v. Smith, 39 So.3d 458, 459-60 (Fla. 2d DCA 2010)
(finding that when it is clear from the face of the final
judgment that the trial court intended an equal distribution
but, due to a mathematical error, the court effected an
unequal distribution, reversal of the final judgment is
we reverse the portion of the final judgment that (1) awards
Former Husband alimony, (2) requires Former Wife to maintain
life insurance as security for the alimony, (3) awards Former
Husband attorney's fees, and (4) directs Former Wife to
pay Former Husband the sum of $28, 407.27 to equalize the
court's distribution of the marital assets and
liabilities, and we remand for further proceedings on these
matters consistent with this opinion. The trial court may
take additional evidence as necessary. As to all other
matters, we affirm.
in part; REVERSED in part; and REMANDED for ...