Posted by Nydia Streets of Streets Law in Florida Alimony

What was phrased by the Florida 4th District Court of Appeal as a “a duel between reversible error and preservation” in Fox v. Fox, 4D17-2092 (Fla. 4th DCA 2018) is a study in the nuances of Florida family law. This case revolves around a Florida alimony award and a conflict has been certified regarding the case issues, meaning the Florida Supreme Court may need to decide on rules which conflict among two or more Florida appellate districts. 

The parties entered a marital settlement agreement which resolved all issues except alimony. The former wife claimed a need for alimony based on her health issues which prevented her from working. The former wife testified that although she had worked in a dental office for about 30 years, she was unable to continue due to her health issues.   

The former husband requested a vocational evaluation of the former wife to establish her earning potential. The former wife objected and the trial court eventually denied the former husband’s request for a vocational evaluation. Trial proceeded and despite the former husband’s attempt to establish the former wife’s ability to earn income, alimony was awarded to the former wife. 

The former husband appealed, arguing (1) it was error for the court to award alimony without making the required statutory findings as to need and ability to pay and (2) it was error for the trial court to deny his request for a vocational evaluation of the former wife. The former wife countered that the former husband failed to preserve his argument for appeal because he did not file a motion for rehearing with the trial court to give the trial court an opportunity to address his claimed errors. 

In granting the former husband’s appeal, the appellate court held: “Preservation rules are designed to prevent a party from blindsiding the judge by raising an issue on appeal that was not brought to the trial court's attention. And, we will not review issues that a trial court has not had the opportunity to rule on because they were not raised. Correspondingly, the preservation rules were not designed to allow a trial court to ignore statutory requirements of which it should be aware.        Certainly, a judge sitting in family court should be cognizant of what findings are statutorily required in a final judgment of dissolution. There should be no need to bring those requirements to the trial court's attention. This does not mean that a lawyer or party ignore the rules either. It is preferable for the litigants to encourage the court's compliance with statutory requirements. But, it should not prevent a litigant from raising the issue when the court fails to do so.”

As to the former husband’s request for a vocational evaluation, the appellate court agreed with him, holding: “The Florida Family Law Rules of Procedure allow a party to examine the other party for ‘physical or mental condition, employability or vocational testing, genetic testing, or any other type of examination related to a matter in controversy.’ The requesting party must show ‘good cause for the examination.’ A court must rely on competent, substantial evidence when determining whether a spouse is voluntarily unemployed or underemployed.’ (citations omitted). The court should also consider ‘evidence of employment potential and probable earnings based on work history, qualifications, and prevailing wages in the community.’” (Internal citations omitted). 

And with that the final judgment was reversed and the trial court was directed to conduct a new trial to make the required findings and to allow the vocational evaluation to proceed. If Florida alimony is an issue in your Miami divorce case, contact a Miami alimony lawyer to determine a case strategy that serves your best interest.