Jack E. De La Piedra, Husband, Appellant,
Katherine M. De La Piedra, Wife, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. Jennie M.
R. Johnson of Meador Johnson & Bushnell, P.A., Pensacola,
L. Myrick, Pensacola, for Appellee.
La Piedra appeals a temporary order setting alimony and child
support, and requiring him to contribute a substantial sum
toward his wife Katherine M. De La Piedra's
attorneys' fees. He contends that these amounts were
improperly calculated and that he does not have the ability
to pay. We reverse.
parties are in the midst of dissolution of marriage
proceedings in the trial court. Appellant-husband works as an
attorney and financially supported the family during the
marriage, while Appellee-wife devoted her time to homemaking
and raising the parties' three children.
temporary order below requires Appellant to pay direct
alimony ($2, 500/month), child support ($330.72/month), and
other in-kind alimony payments to cover Appellee's
mortgage, medical and vehicle insurance, student loans, cell
phone bills, and medical bills. See Williams v.
Williams, 10 So.3d 651, 652 n.1 (Fla. 5th DCA 2009)
(treating mortgage payments on behalf of the other spouse as
in-kind alimony). In addition, the temporary order requires
Appellant to pay $10, 500 towards Appellee's
claims that the court abused its discretion by awarding these
amounts, which he lacks the ability to pay. While temporary
alimony awards are within the trial court's sound
discretion, there must be competent substantial evidence
showing that the payee has a need and the payer has the
ability to pay. Buchanan v. Buchanan, 225 So.3d
1002, 1003 (Fla. 1st DCA 2017); § 61.08(2), Fla. Stat.
"If an award is in excess of a party's ability to
pay, then it is not supported by competent, substantial
evidence, and a trial court abuses its discretion by ordering
such an award." Buchanan, 225 So.3d at 1003
(citing Hotaling v. Hotaling, 962 So.2d 1048, 1051
(Fla. 2d DCA 2007)); see also § 61.071, Fla.
Stat. (allowing for reasonable sum alimony pendente lite
where a well-founded petition for alimony is filed). We must
reverse the temporary alimony award in this case, because the
record does not provide competent, substantial evidence that
Appellant has the ability to pay, nor dispel Appellant's
argument that the obligation exceeds 90% of his net monthly
income, leaving him only "approximately $300.00 per
month with which to support himself and his children, two of
whom he exercises half of the time sharing with, and one who
lives primarily with him."
find that the child support calculation amount improperly
accounted for the alimony award. In calculating income for
child support purposes, alimony must be included as income.
See § 61.30(2)(a)(9), Fla. Stat.;
Christensen v. Christensen, 147 So.3d 118, 119 (Fla.
1st DCA 2014). The spousal support amounts should also have
been deducted from Appellant's income. §
61.30(3)(g), Fla. Stat. In this case, the worksheets used by
the court did not include alimony in Appellee's income
and did not account for all of the in-kind alimony. On
remand, the trial court should account for all of the alimony
awarded when calculating the child support amount.
Appellant contends that the court abused its discretion in
requiring him to pay $10, 500 toward Appellee's
attorney's fees because he does not have the ability to
pay that amount. The primary considerations for an award of
attorney's fees under section 61.16, Florida Statutes,
are the party's need and the other party's ability to
pay. See, e.g., Shawfrank v. Shawfrank, 97
So.3d 934, 936 (Fla. 1st DCA 2012). The trial court must take
alimony and child support payments into account when
determining whether the party has the ability to pay. See
Haywald v. Fougere, 164 So.3d 786, 787 (Fla. 1st DCA
2015). Accordingly, when "the trial court has equalized
incomes through its alimony award, the trial court abuses its
discretion in awarding attorney's fees."
Galligar v. Galligar, 77 So.3d 808, 813 (Fla. 1st DCA
2011). Because we are reversing the court's alimony and
child support awards, the ultimate determination of whether
Appellee is entitled to help with her attorney's fees
will be intertwined with the court's remand
determination. See Schroll v. Schroll, 227 So.3d
232, 238 (Fla. 1st DCA 2017). Thus, the trial court should
revisit the issue of Appellee's entitlement to
attorney's fees pursuant to section 61.16(1), "based
on the extent to which the parties' respective financial
circumstances are altered on remand." Id.
these reasons, we reverse the temporary order and remand for