Posted by Nydia Streets of Streets Law in Florida Divorce

Gross income cannot be used to determine a Florida alimony award. The court must look to the parties’ net incomes in assessing need and ability to pay alimony. This was an issue in the case Lopez v. Lopez, 4D2023-0726 (Fla. 4th DCA May 22, 2024).

The former wife filed for divorce after 14 years of marriage. She sought, in part, an award of alimony and attorney’s fees and costs. The trial court found the former wife did not make any effort to find employment and imputed income of $60,000 gross annual income to her. It also found, based on testimony from an accountant, that the former wife’s investment income was over $2,500 per month. After finding the former wife’s need for alimony was over $10,000 per month, the trial court subtracted the imputed income of $60,000 annually plus the investment income to arrive at an alimony payment of $2,600 monthly.

The trial court denied the former wife’s request for attorney’s fees holding “[former wife] has engaged in litigation designed primarily to harass, [and] has raised non-meritorious claims and litigation claims that are baseless.” The appellate opinion states “The final judgment details instances of Former Wife’s alleged misconduct, which include Former Wife’s interference with a deposition subpoena, attempts to disavow Former Husband of nonmarital interest in a company, and needless joinder of this company and other third parties, which caused unnecessary delay and increased litigation.” The former wife appealed.

As to alimony, the appellate court reversed, holding “‘The proper calculation to determine a party’s financial circumstances is to subtract the party’s monthly expenses from their net monthly income . . . .’ Id.; see also Reese v. Reese, 363 So. 3d 1202, 1211 (Fla. 6th DCA 2023) (the trial court imputed gross income to Former Wife for the purpose of calculating alimony, and thus reversibly erred because it failed to make specific findings regarding the parties’ net incomes). [. . .] Because this $7,756 monthly income is derived in part from a gross number imputed to Former Wife, the trial court reversibly erred in its alimony calculation, and we remand for the trial court to calculate alimony based on the parties’ net incomes (actual and imputed).”

As to the denial of fees, the appellate court also reversed, holding “‘[I]n situations where a court finds that an action is frivolous or spurious or was brought primarily to harass the adverse party, we find that the trial court has the discretion to deny a request for attorney’s fees to the party bringing the suit.’ Rosen, 696 So. 2d at 701. But ‘[e]ven in those cases raising issues of inappropriate conduct, the trial court still must consider the parties’ respective need for suit money and ability to pay.’ Ali v. Khan, 374 So. 3d 852, 854 (Fla. 6th DCA 2023) (alteration in original) (quoting Sumlar v. Sumlar, 827 So. 2d 1079, 1085 (Fla. 1st DCA 2002)). [. . .] While the trial court supported its denial of Former Wife’s attorney’s fees by detailing specific instances of Former Wife’s misconduct, the final judgment fails to make any finding about the parties’ financial circumstances; specifically, Former Wife’s need and Former Husband’s ability to pay. On remand the trial court shall make this finding and subsequently reassess Former Wife’s attorney’s fees request.”

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