MICHAEL HAWRYLUK, JR. vs KATHRYN HAWRYLUK

• Court: District Court of Appeal of Florida
• Decided: May 19, 2023
• Docket: 21-2405
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MICHAEL HAWRYLUK, JR.,

Appellant/Cross-Appellee,

v. Case No. 5D21-2405 LT Case No. 2019-30639-FMCI

KATHRYN HAWRYLUK,

Appellee/Cross-Appellant.

________________________________/

Opinion filed May 19, 2023

Appeal from the Circuit Court for Volusia County, Sandra C. Upchurch, Judge.

John N. Bogdanoff, of The Carlyle Appellate Law Firm, Orlando, for Appellant/Cross-Appellee.

Sheila M. Ennis, of Sheila M. Ennis, P.A., Edgewater, for Appellee/Cross- Appellant.

MACIVER, J. Appellant, Michael Hawryluk ("Former Husband"), and

Appellee/Cross-Appellant, Kathryn Hawryluk ("Former Wife"), appeal the

trial court's Amended Final Judgment of Dissolution of Marriage on several

grounds. Because the trial court erred by entering monthly support awards

and payment of attorney fees which exceed its calculation of Former

Husband's monthly surplus, we remand the case for recalculation of Former

Husband's monthly payment obligations and otherwise affirm on all issues.

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure

9.030(b)(1)(A).

Background

Former Husband and Former Wife were married in January of 1993.

The trial court entered a Final Judgment of Dissolution of Marriage on

December 16, 2020, amended on August 17, 2021, nunc pro tunc.

The judgment awarded Former Wife durational alimony of $3,513.75

per month for seven years; $636.34 per month in child support; $1000 per

month in equitable distribution for five years; and $1,200 per month in

attorney fees for seventy-six months.

2 Analysis

Former Husband appeals, and Former Wife cross-appeals, the

Amended Final Judgment. Former Husband asserts that the court below

erred by awarding a combination of support and attorney fees that exceed

his ability to pay.

The trial court found that Former Husband has a monthly income

between $10,000 and $12,000, as well as living expenses of $5,000 per

month. Taking the midpoint between $10,000 and $12,000, the court found

Former Husband to have a monthly surplus of “at least $6,000.00.” The

monthly sum of the support and attorney’s fee award, however, is $6,350.09.

“‘[A] trial court cannot enter a . . . [financial] award that exceeds or

nearly exhausts a party's income’ because it would abuse its discretion by

doing so.” Williams v. Williams, 10 So. 3d 651, 652 (Fla. 5th DCA 2009)

(quoting Bolton v. Bolton, 898 So. 2d 1084, 1084 (Fla. 4th DCA 2005)). As

such, the Court in Williams held that an award of temporary child support

and in-kind alimony was excessive where “as combined, it . . . consume[d]

97% of the husband's net monthly income.” Id.

Similarly, this Court has reversed final judgments that failed to consider

whether a party ordered to make payments has the financial ability to do so.

See Kirby v. Kirby, 345 So. 3d 356, 358 (Fla. 5th DCA 2022) (finding

3 reversible error where lower court used gross rather than net income of the

former husband to calculate payment and it was “unclear from the record

whether he ha[d] the ability to make this payment and still afford to pay his

own living expenses”); Mauck v. Mauck, 702 So. 2d 1311, 1313 (Fla. 5th

DCA 1997) (reversing where order to pay more than half of his net income

placed the former husband in a “perilous economic situation”).

Here, unlike in either Kirby or Mauck, the trial court did not rely on gross

income, but instead appropriately considered Former Husband’s living

expenses and ability to pay. However, much like in Williams, the court failed

to make clear in the record how a $6,000 average monthly surplus can cover

a $6,350.09 monthly obligation. Because the aggregate monthly payments

would exceed the amount that the court found to be Former Husband’s

monthly surplus (i.e., ability to pay after living expenses), we reverse and

order a recalculation of the payment schedule that would bring the monthly

aggregate payment within the range of Former Husband’s estimated monthly

surplus of $6,000.

AFFIRMED, in part; REMANDED, in part, for recalculation.

EISNAUGLE and KILBANE, JJ., concur.