Duke v. Duke

211 So. 3d 1078, 2017 WL 544618, 2017 Fla. App. LEXIS 1643
Procedural entryThis page is a short order in Duke v. Duke. Read the opinion of the Court — 211 So. 3d 1078
District Court of Appeal of Florida·Decided February 10, 2017·No. Case No. 5D16-120·Published

Opinion

ORFINGER, J.

John Duke (“Former Husband”) appeals the trial court’s final judgment dissolving his marriage to Heather Duke (“Former Wife”). We reverse the alimony award, the attorney’s fees award, the requirement that Former Husband maintain life insurance, and the parenting plan. We affirm as to the remaining issues without comment.

The parties were married for twenty-five years before Former Wife filed a petition for dissolution of marriage. At the time of the petition, they had one minor child. Following a non-jury trial, the trial court entered a final judgment of dissolution of marriage, which was subsequently amended after a motion for rehearing. The final judgment, in relevant part, ordered Former Husband to pay permanent periodic alimony, child support, attorney’s fees, and a reimbursable lump sum to Former Wife for alternate housing. It also required Former Husband to maintain life insurance with Former Wife named as the beneficiary and established a parenting plan.

Typically, courts review dissolution of marriage final judgments as a whole for an abuse of discretion. Vitalis v. Vitalis, 799 So.2d 1127, 1130 (Fla. 5th DCA 2001). This includes alimony awards, Dennison v. Dennison, 852 So.2d 422, 424 (Fla. 5th DCA 2003), attorney’s fees awards, Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006), requirements that a party maintain life insurance, Nelson v. Nelson, 795 So.2d 977, 986 (Fla. 5th DCA 2001), parenting plans, Schwieterman v. Schwieterman, 114 So.3d 984, 988 (Fla. 5th DCA 2012), and the distribution of assets, Winder v. Winder, 152 So.3d 836, 838 (Fla. 1st DCA 2014).

Here, there is no trial transcript in the record. ‘Without a record of the trial proceedings, the appellate court [cannot] properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence .... ” Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979). Thus, for an appellate court to review the sufficiency of evidence at trial, the appellant must either include in the record a trial transcript or a proper substitute, such as a stipulated statement of facts. Id.; Casella v. Casella, 569 So.2d 848, 849 (Fla. 4th DCA 1990). That was not done here.

Florida courts typically will not reverse a dissolution order based on the sufficiency of required factual findings when there is no transcript or proper substitute in the record. Klette v. Klette, 785 So.2d 562, 563 (Fla. 1st DCA 2001). However, if the trial court’s error is clear on the face of the order or judgment, the appellate court can reverse. Hindle v. Fuith, 33 So.3d 782, 785 (Fla. 5th DCA 2010); see Ferguson v. Ferguson, 54 So.3d 553, 556 (Fla. 3d DCA 2011) (holding former wife’s failure to include transcript of hearing did not preclude appellate review of order where reversible error existed on [1081]*1081face of order); Casella, 569 So.2d at 849 (finding reversible error on face of amended judgment alone).

ALIMONY

Here, the trial court found that the major marital asset was Former Husband’s tax deferred retirement account, valued at $1.2 million. The final judgment awarded Former Wife fifty percent of the balance of Former Husband’s retirement account. Nonetheless, the final judgment provides that Former Wife “does not have an [sic] assets other than $11.00 in her checking account and her vehicle which has a lien against it.” The court noted that “the [Former Wife’s] income is $9.00 per hour full time based on her testimony. This equates to a gross monthly income of $1,560.00 per month.”

We agree with Former Husband that the trial court should have imputed to Former Wife’s gross monthly income the interest generated from her one-half share of his retirement account. Section 61.046(8), Florida Statutes (2015), defines “income” and includes retirement benefits, pensions, dividends, and interest. In considering an alimony award, a trial court must consider all sources of income available to either party. § 61.08(2)(i), Fla. Stat. (2015). This includes payments received from interest-generating retirement accounts. Adelberg v. Adelberg, 142 So.3d 895, 899 (Fla. 4th DCA 2014); Niederman v. Niederman, 60 So.3d 544, 547 (Fla. 4th DCA 2011).

Because the trial court found that Former Wife’s income was $1,560, based solely on her full-time job, it is apparent from the face of the final judgment that the court failed to impute interest from the one-half share of the retirement account that was awarded to her. See Niederman, 60 So.3d at 547 (holding that, under 26 U.S.C. § 72(t) (2015), income from retirement account can be imputed to spouse for determining alimony when principal of account will not be invaded); see also Adelberg, 142 So.3d at 899; Elliott v. Elliott, 867 So.2d 1198, 1199-1200 (Fla. 5th DCA 2004). Thus, we reverse the alimony award and remand for the trial court to consider interest from the retirement account when calculating Former Wife’s income.1

ATTORNEY’S FEES

Former Husband correctly argues, and Former Wife concedes, that the trial court erred in its attorney’s fees award by failing to make the required findings. In addition to findings of the need for and ability to pay attorney’s fees, “[t]he trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.” Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012) (citing Davis v. Davis, 613 So.2d 147, 148 (Fla. 1st DCA 1993)). A dissolution order awarding attorney’s fees that “recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla. 1985)].” Winder, 152 So.3d at 842 (quoting Norman v. Norman, 939 So.2d 240, 242 (Fla. 1st DCA 2006)).

Here, the trial court awarded $9,312.75 in attorney’s fees to Former Wife. It found that Former Wife demonstrated a need for attorney’s fees and that Former Husband had the ability to contribute to them. It provided in the final judgment that “the [Former Wife]’s request of $9,312.75 is reasonable given the [1082]*1082nature and duration of the instant case. The hourly rates charged by all timekeepers is reasonable and the amount of hours billed is reasonable.” The trial court’s failure to set forth specific findings about the hourly rate and number of hours is error apparent from the face of the final judgment. See Esaw v. Esaw, 965 So.2d 1261, 1265 (Fla. 2d DCA 2007) (acknowledging that award of attorney’s fees without adequate findings justifying amount of award is reversible even when appellant provided inadequate record of trial court proceedings). Consequently, we must reverse the award of attorney’s fees and remand for the trial court to make specific findings about the hourly rate, number of hours billed, and any reduction or enhancement factors. However, we affirm the finding of Former Wife’s need for and Former Husband’s ability to pay attorney’s fees because, without a trial transcript, we cannot determine that this finding was error.

LIFE INSURANCE

Former Husband argues that the trial court erred by failing to make required findings before ordering him to maintain life insurance.

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Duke v. Duke, 211 So. 3d 1078, 2017 WL 544618, 2017 Fla. App. LEXIS 1643 (Fla. Ct. App. 2017).

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