EUTIMIO C. RUIZ, APPELLANT,
v.
NANCY M. RUIZ, APPELLEE

Fla. 3d DCA | 2002-06-12
Nos. 3D01-2226, 3D02-411
Before LEVY, GERSTEN and GREEN, JJ.
821 So. 2d 1112 Florida District Court of Appeal, Third District (2002) Positive Treatment
Cited by 1 case

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Synopsis

In a divorce appeal, the husband challenged an amended final judgment and contempt order requiring him to pay $600 weekly alimony despite being unemployed. The court reversed and remanded, finding the judgment lacked required findings on the husband's ability to pay, improperly speculated about future income, and failed to adequately value marital assets or consider statutory factors in distributing tax liabilities.


Holding

The court reversed and remanded for a new trial, holding that the judgment violated statutory requirements by failing to make findings on the husband's ability to pay under Fla. Stat. § 61.14(5)(a), failing to consider each party's financial resources under Fla. Stat. § 61.08(2), improperly basing the alimony award on speculation about future income rather than present circumstances, failing to adequately value and distribute certain marital assets, and improperly assigning tax liability without considering statutory factors enumerated in Fla. Stat. § 61.075(1).


Headnotes

[1] A trial court errs by basing an alimony award on speculative future income rather than present ability to pay.

[2] A judgment of dissolution must include findings regarding a party's present ability to pay support.

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Key Quotes

“Judgments of dissolution which incorporate a consideration of future events in setting support amounts are usually improper because of the lack of an evidentiary basis for determining those future events.”

Establishes that the trial court erred in basing alimony on expectations of future employment rather than present ability to pay

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Facts & Procedural History

In a divorce proceeding, the trial court entered an Amended Final Judgment ordering the husband to pay $600 per week in alimony despite finding him un…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

In this consolidated appeal, Eutimio Ruiz (Husband) appeals from an Amended Final Judgment, and an Order granting Nancy Ruiz’ (Wife) Motion for Contempt, Motion to Compel, and Motion for Appellate Attorney’s Fees. We reverse and remand for a new trial.

As in most divorce cases, the record in this case contains widely diverse views of the facts and financial positions, both past and present, of the parties. Although a thorough search of the record could yield evidence to support most, if not all, of what the trial judge did, the Amended Final Judgment entered in this cause makes no findings indicating what evidence the court accepted and what evidence the court rejected. Trying to determine the trial judge’s view of the evidence is further complicated by the' fact that a subsequent judge, in handling a contempt proceeding, appears to have made findings which, on their face, appear to be in conflict with the findings made in the Amended Final Judgment.

In the Amended Final Judgment, the trial judge ordered the husband to pay alimony of $600.00 per week but also acknowledged the fact that the husband was unemployed. In the said Amended Final Judgment, the trial judge did not impute income to the Husband but, rather, erroneously based the alimony award on the judge’s optimistic expectations that the husband would soon become employed again in the near future. Judgments of dissolution which incorporate a consideration of future events in setting support amounts are usually improper because of the lack of an evidentiary basis for determining those future events. See Aarts v. Aarts, 636 So. 2d 57, 58 (Fla. 2d DCA 1994). That erroneous part of the Amended Final Judgment becomes part of the complication that arises from the fact that a subsequent judge, presiding over a contempt hearing regarding the Husband’s failure to pay alimony, treats the Husband as though the Amended Final Judgment had imputed income to him.

In addition to speculating about the Husband’s future income, the alimony portion of the Amended Final Judgment also contained no findings with respect to the Husband’s then present ability to pay and no discussion of the Wife’s financial resources. Thus, the trial court erred in failing to make a finding of the Husband’s present ability to pay as required by Section 61.14(5)(a), Florida Statutes, and in failing to consider the financial resources of each party as required by Section 61.08(2), Florida Statutes. Moreover, in setting the equitable distribution awards, the trial court failed to value and equitably distribute certain marital assets, including, but not limited to, the parties’ household furniture.

Finally, the Amended Final Judgment indicates that the parties have a tax liability as a result of withdrawals made by the Husband from his IRA plan to “cover debts.” Despite the fact that the record reflects that a portion of the withdrawn funds was utilized for marital expenses,1 the trial court rendered the Husband solely responsible for the tax liability because he falsified his assets and because he did not truthfully disclose his living expenses. Although the Husband demonstrated a lack of candor to the trial court throughout the proceedings, a lack of candor is not among the factors enumerated in Section 61.075(1), Florida Statutes, that would justify an unequal distribution of a marital liability such as this tax liability.

Accordingly, this case is reversed and remanded for a new trial. Naturally, the Order granting the Wife’s Motion for Contempt, Motion to Compel, and Motion for Appellate Attorney’s Fees is reversed in all respects as the Husband cannot be held in contempt for, or be compelled to pay, an alimony award that was improvidently entered and contained no findings of his ability to pay.

Reversed and remanded.

. The Amended Final Judgment also contains no discussion of what portion of the Husband's withdrawals from the IRA was utilized to pay marital debts.


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Citator

Cited By

  • Schriefer v. Schriefer, 831 So. 2d 1284 (Fla. 5th DCA 2002)
    …S(l)(j). Although the trial court found a lack of candor on the part of the wife, it did not base its distribution scheme on this factor, as it is not one of the justifications for an unequal distribution in section 61.075(1). See also Ruiz v. Ruiz, 821 So. 2d 1112 (Fla. 3d DCA 2002). . § 61.075(1), Fla. Stat. (1999). See Ingle v. Ingle, 640 So. 2d 223, 224 (Fla. 5th DCA 1994); Mahaffey v. Mahaffey, 401 So. 2d 1372 (Fla. 5th DCA 1981). . Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980)…

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