RICHARD M. BRUNSMAN, Appellant,
ANGELA L. BRUNSMAN, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, John D. Galluzzo,
R. Dewitt and Sherri K. Dewitt, of Dewitt Law Firm, PA,
Orlando, for Appellant.
Appearance for Appellee.
Brunsman ("Former Husband") appeals a final
judgment dissolving his marriage to Angela Brunsman
("Former Wife"). He argues that the trial court
abused its discretion in awarding Former Wife alimony; the
court failed to make the requisite findings in imposing a
life insurance requirement; and the court abused its
discretion in awarding Former Wife attorney's fees. We
affirm in part, reverse in part, and remand.
parties were married for fourteen years and had one
child. Former Wife petitioned for dissolution of
marriage in 2010. A central issue at trial was Former
Wife's need and Former Husband's ability to pay
alimony. Former Wife testified that she was earning slightly
over $3100 per month ($37, 464 annually) and had a monthly
household deficit of $682. Former Husband testified that his
annual salary was $44, 400, although his 2014 payroll records
reflected an annual income of $51, 540 once commission and
bonuses were included.
Wife claimed an ownership interest in the home where the
former couple resided during the marriage. She testified that
Former Husband had told her that she was on the deed and as a
result, the parties put a substantial amount of money into
the property. However, Former Husband's father actually
owned the home; Former Husband had executed a fraudulent
quitclaim deed making it appear that Former Wife had been
placed on the deed.
time of trial, Former Wife was in bankruptcy. This was
partially because after temporary support was awarded, Former
Husband lost his job and stopped making alimony
payments. Former Husband never resumed paying
alimony, despite having obtained a new job. At the conclusion
of trial, the court found that Former Husband had almost $700
in child support arrears and over $48, 000 in alimony
arrears. The court ordered Former Husband to pay $500 per
month in non-modifiable durational alimony for five years.
The court rejected the representations in Former
Husband's updated financial affidavit, finding it could
not "accept [the affidavit] as being truthful based upon
his prior untruthful statements under sworn affidavits and
portion of the final judgment related to child support, the
court found that Former Husband's gross monthly income
was $4250, while Former Wife's gross monthly income was
$3122, but did not make any findings regarding the
parties' respective net incomes. Consistent with its oral
pronouncement at trial, the court ordered Former Husband to
pay non-modifiable durational alimony and made findings
pursuant to section 61.08, Florida Statutes (2010). The court
also ordered that the alimony arrearages be paid once the
durational alimony obligation was paid in full. The court
required Former Husband to maintain a $70, 000 life insurance
policy to secure the alimony award. The court found that
Former Wife was entitled to attorney's fees, reserving on
the amount. No order on the amount of attorney's fees
appears in the record on appeal.
Husband moved for rehearing. He argued that the trial court
erred in ordering him to pay alimony by using his gross
income rather than net income in calculating the award,
ordering that alimony was non-modifiable, and failing to make
the appropriate findings regarding arrearages. He also
challenged the life insurance requirement, arguing that he
was uninsurable and could not afford a policy. The court
denied Former Husband's motion without a hearing. This
affirm the final judgment except as it relates to certain
aspects of the durational alimony award. We affirm the
imposition of alimony and find no abuse of discretion in the
determination of arrearages. However, section 61.08(7)
specifically provides that durational alimony awards are
modifiable. § 61.08(7), Fla. Stat. (2010). Absent
agreement between the parties or findings of exceptional
circumstances, neither of which are implicated in this case,
imposing a non-modifiable alimony requirement is error.
Cf. Smith v. Smith, 689 So.2d 1312, 1312 (Fla. 5th
DCA 1997) ("[T]here is no provision in the law for
'non-modifiable permanent alimony' . . . ."). On
remand, the court must strike the language in the alimony
award that precludes the possibility of future modification.
Husband also correctly notes that the trial court utilized
gross rather than net income in determining the appropriate
amount of the award. See, e.g., Brady v.
Brady, No. 5D17-1370, 2017 WL 5180738, at *1 (Fla. 5th
DCA Nov. 9, 2017) ("[T]he trial court erred in basing
the alimony award on the parties' respective gross
incomes and not their net incomes."); see also Topel
v. Topel, 152 So.3d 863 (Fla. 5th DCA 2014) (reversing
alimony award in part because trial court erred in using
gross income instead of net income); Clore v. Clore,
115 So.3d 1100 (Fla. 5th DCA 2013) (vacating alimony award
and remanding for redetermination of husband's income
based on net rather than gross figures). We reverse and
remand for the court to make the relevant findings as to the
parties' net incomes and to use those figures in
recalculating the amount of the durational alimony award.
reverse the portion of the final judgment ordering Former
Husband to secure the alimony award with life insurance.
Section 61.08(3), Florida Statutes (2010), governs ...