Alimony: "Need" & "Double Dipping"

Need vs. Ability

Even prior to the 2010 statutory amendments, the starting point for every alimony analysis has been determining the factual issue of “need” and “ability to pay”. In other words, the one element common to all types of alimony is the requirement that the recipient spouse must have a need, and the payor spouse must have the ability to pay. Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Both elements must be present to meet the threshold of any alimony award.

The 2010 amendment to Section 61.08 not only underscores the importance of this determination, but has codified it as a specific factual finding that a court must make in awarding alimony:

In determining whether to award alimony or maintenance, the court shall first make specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.

It is only after this determination is made that a court can then consider the other statutory criteria set forth in Section 61.08(2).

It is an abuse of discretion for a court to award an amount of alimony that exceeds a spouse’s need. See, e.g., Garcia v. Garcia, 25 So.3d 687, 690 (Fla. 4th DCA 2010).

In order to demonstrate need, the recipient spouse must be unable to gain (or regain) the means to earn enough income to meet the standard of living set by the marriage. Castillo v. Castillo. 626 So.2d 1035 (Fla. 3d DCA 1993). Where the spouse receives sufficient income producing assets through equitable distribution such that all needs are otherwise met, alimony is not appropriate, regardless of the wealth of the other spouse. See Italiano v Italiano, 873 So.2d 558 (Fla. 2d DCA 2004).

Disparity in income alone does not justify an award of permanent periodic alimony. The recipient spouse's need is a crucial component in the alimony equation. Rosecan v. Springer, 845 So.2d 927 (Fla. 4th DCA 2003). See also Costa v. Costa, 951 So.2d 924 (Fla. 4th DCA 2007).

Conversely, where the parties are in virtually identical financial conditions with similar wage earning capacity, there is no ability to pay. See Woodard v. Woodard, 477 So.2d 631 (Fla. 4th DCA 1985), holding that an award of permanent alimony in a 34 year marriage was reversible error where the parties were in identical financial positions.

“Double Dipping”; Alimony Need does not include children’s expenses

When considering a wife’s alimony needs, DO NOT consider the expenses for children as part of the wife’s needs to be met by alimony. Cox v. Cox, 10 So.3d 180 (Fla. 2nd DCA 2009). The trial court found that the wife had needs totally $5,351, but this amount included $940 under the children’s expense section of her financial affidavit. To count it constituted impermissible double dipping.

Also noteworthy, although neither the trial court nor the appellate court noted this. However, child support is not just for the child’s direct and child-specific expenses (clothes, daycare, and medicine) but also includes a component for housing and other indirect needs of a child (transportation).

10 So. 3d 180, *; 2009 Fla. App. LEXIS 2723, **;

34 Fla. L. Weekly D 702

WESLEY LEE COX, Appellant/Cross-Appellee, v. PAULA LOUISE COX, Appellee/Cross-Appellant.

Case No. 2D07-2697


10 So. 3d 180; 2009 Fla. App. LEXIS 2723; 34 Fla. L. Weekly D 702

April 3, 2009, Opinion Filed

SUBSEQUENT HISTORY: Released for Publication June 26, 2009.

Rehearing denied by Cox v. Cox, 2009 Fla. App. LEXIS 8940 (Fla. Dist. Ct. App. 2d Dist., June 5, 2009)


Appeal from the Circuit Court for Hillsborough County; Steven Scott Stephens, Judge.

DISPOSITION: Affirmed in part, reversed in part, and remanded.

CORE TERMS: alimony, daughter's, equitable, child support, alimony award, disability benefits, monthly expenses, recalculation, federal law, support obligation, review denied, redetermination, cross-appeal, refund

COUNSEL: Virginia R. Vetter, Tampa, for Appellant/ Cross-Appellee.

Richard A. Harrison  and Amy D. Singer  of Allen Dell, P.A, Tampa, for Appellee/Cross-Appellant.

JUDGES: SILBERMAN , Judge. NORTHCUTT , C.J., and LaROSE , J., Concur.



[*180] SILBERMAN , Judge

Wesley Lee Cox (the Husband) appeals a Second Amended Final Judgment of Dissolution of Marriage (the judgment) and challenges portions of the equitable distribution and the award of permanent alimony. Paula Louise Cox (the Wife) filed a cross-appeal, and we affirm without discussion on the cross-appeal. On the main appeal, we affirm the equitable distribution,  [*181] reverse the alimony award, and remand for a redetermination of the need for and amount of alimony and for the recalculation of child support.

Regarding the equitable distribution award, we have noted the Husband's argument as to his Social Security disability benefits. However, the Husband did not preserve the issue of whether federal law prohibits the treatment of Social Security disability benefits as marital assets because he did not make that specific argument in  [**2] the trial court. See Naples v. Naples, 967 So. 2d 944, 948 (Fla. 2d DCA 2007) (determining that because the husband failed to raise in the trial court the issue of whether federal law regarding the nonassignability of veterans' benefits precluded enforcement of an alimony provision, the husband failed to preserve the issue for review), review denied, 981 So. 2d 1200 (Fla.), cert. denied, 129 S. Ct. 246, 172 L. Ed. 2d 186 (2008); Moss v. Moss, 939 So. 2d 159, 165 (Fla. 2d DCA 2006) (recognizing that the specific argument regarding an issue must be made in the trial court to preserve that issue for appellate review). Thus, we do not reach the issue of the equitable distribution of the Husband's Social Security disability benefits.

The Husband also argues that the trial court erred by not including the Wife's 2003 tax refund as an asset subject to equitable distribution. Based on the limited information provided to the trial court, which did not clearly establish the refund amount, we conclude that the trial court did not commit reversible error on this point. As to the other issues the Husband raises regarding the equitable distribution, we affirm without discussion. Accordingly, we affirm the equitable  [**3] distribution scheme in all respects.

With regard to alimony, the trial court awarded to the Wife $ 500 per month in permanent periodic alimony. The trial court also determined that the Husband's child support obligation is $ 778 per month. We agree with the Husband's contention that it was improper for the trial court to consider the teenage daughter's expenses of $ 940.96 per month, as reflected on the Wife's financial affidavit, in determining the Wife's need for alimony.

The Wife's financial affidavit and testimony reflect $ 5350.78 in monthly expenses, with $ 940.96 of those expenses specifically designated for the daughter. At trial, the Husband questioned the Wife about some of the daughter's expenses, such as the $ 125 per month for the daughter to go to the beauty parlor. In closing, the Husband argued that $ 940 of the Wife's deficit was attributable to the daughter. In response, the Wife stated that the summary provided to the trial court backed out the daughter's expenses from the financial affidavit. However, the charts attached to the judgment show the Wife's expenses to be $ 5351, and the judgment lists her monthly expenses as $ 5350.78. This is consistent with the Wife's  [**4] financial affidavit and does not back out the daughter's expenses.

In Storey v. Storey, 979 So. 2d 1057, 1057-58 (Fla. 2d DCA 2008), this court reversed an alimony award and remanded for recalculation without consideration of the children's expenses. There, the trial court awarded $ 2000 per month in alimony and $ 187 per month in child support. The wife's financial affidavit reflected children's expenses of $ 1370 per month. This court stated, "By considering these expenses in calculating the alimony, the trial court double counted child support." Id. at 1057. See also Levine v. Levine, 964 So. 2d 741, 742 (Fla. 4th DCA 2007) (reversing an alimony award because it duplicated the  [*182] child support when the accountant testified that the wife's "needs plus the children's together amounted to a net of $ 23,000 monthly"), review denied, 980 So. 2d 490 (Fla. 2008).

Similarly, the trial court here double-counted the daughter's expenses in considering the $ 940.96 in monthly expenses to determine alimony and in also determining the Husband's child support obligation of $ 778. Therefore, we reverse the alimony award and remand for a redetermination of the Wife's alimony claim without the daughter's  [**5] expenses. This will also require a recalculation of child support because alimony is determined before child support. See Storey, 979 So. 2d at 1057.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT, C.J., and LaROSE, J., Concur.

By Kenny Leigh

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