Opinion
Case No. 6D23-248
02-24-2023
Kimberly GOODMAN, Appellant, v. Sean GOODMAN, Appellee.
Kimberly Goodman, Fort Myers, pro se. Peter B. Sekulic and Matthew P. Irwin, of Men's Rights Law Firm, Cape Coral, for Appellee.
Kimberly Goodman, Fort Myers, pro se.
Peter B. Sekulic and Matthew P. Irwin, of Men's Rights Law Firm, Cape Coral, for Appellee.
MIZE, J.
This is the third appeal arising from a dissolution of marriage proceeding between Appellant and former wife, Kimberly Goodman ("Former Wife"), and Appellee and former husband, Sean Goodman ("Former Husband"). Because the trial court failed to comply with the Second District Court of Appeal's opinion from the second appeal, we reverse.
This case was transferred from the Second District Court of Appeal to this Court on January 1, 2023.
Background and Prior Appeals
Former Wife filed a Petition for Dissolution of Marriage in 2013 seeking, among other things, alimony and child support. Former Husband responded with a Counter-Petition for Dissolution of Marriage. After entering orders requiring Former Husband to provide temporary support to Former Wife and the parties’ children, the trial court held a trial in January 2015. After the trial, the trial court entered a Final Judgment of Dissolution of Marriage that, among other things: (1) imputed certain income to Former Wife; (2) found that Former Wife had a need of $10,000 per month and that $3,500 of that need could be met from other sources; and (3) awarded Former Wife durational alimony in the amount of $6,500 per month for eight years.
Both parties appealed the original Final Judgment. In that appeal, Former Wife raised numerous issues related to the durational alimony award, including that the income imputed to her by the trial court was unsupported by record evidence. The Second District Court of Appeal issued an opinion in that appeal on October 13, 2017, which affirmed in part and reversed in part. See Goodman v. Goodman , 231 So. 3d 574 (Fla. 2d DCA 2017). That opinion stated in pertinent part:
While we find no error in the award of durational alimony or the imputation of income, there are related matters that the trial court should address on remand...Ms. Goodman is correct that to the extent she sought retroactive amounts [of alimony], the final judgment fails to make the findings required regarding need and ability to pay. See § 61.08(2), Fla. Stat. (2013). The trial court on remand should consider and clarify any findings in regard to her request for retroactive alimony for that time. See Alpert v. Alpert , 886 So. 2d 999, 1002 (Fla. 2d DCA 2004). This will also allow the trial court to consider Mr. Goodman's argument that his former wife's imputed income and trust income should be factored into any retroactive award. These issues will likewise bleed into the child support calculations, and we direct a similar determination of the issue of retroactive child support as well. See § 61.30.
...
In sum, we reverse the final judgment of dissolution to the extent expressed in this opinion...We remand for the additional proceedings described in this opinion. In all other respects, we affirm the final judgment of dissolution.
Id . at 577-78.
After the remand, on August 14, 2018, the trial court entered a Second Amended Final Judgment of Dissolution of Marriage (the "Second Amended Final Judgment"). Former Wife appealed the Second Amended Final Judgment. The Second District Court of Appeal entered an opinion in that appeal on December 9, 2020, which stated in full:
[Former Wife] appeals from the second amended final judgment of dissolution, which the trial court entered on remand after a prior appeal. Our opinion in that prior appeal directed the trial court to, among other things, "consider and clarify any findings in regard to [Former Wife's] request for retroactive alimony" and for retroactive child support. See Goodman v. Goodman , 231 So. 3d 574, 577 (Fla. 2d DCA 2017). Because the court inadvertently failed to do so, we remand for the court to do so now. In all other respects, we affirm.
See Goodman v. Goodman , 310 So. 3d 493, 493 (Fla. 2d DCA 2020).
On December 23, 2021, the trial court entered a Third Amended Final Judgment of Dissolution of Marriage (the "Third Amended Final Judgment"). Despite the explicit instruction from the Second District Court of Appeal to the trial court, the Third Amended Final Judgment does not include findings regarding Former Wife's need and Former Husband's ability to pay during the period that the dissolution action was pending, i.e., from the time of the filing of Former Wife's Petition for Dissolution of Marriage through the date of the trial. Instead, for that retroactive period, the trial court simply required Former Husband to pay Former Wife the same monthly alimony amount ($6,500) that the trial court found should apply prospectively based on the parties’ financial positions as of the date of trial, without making any finding as to Former Wife's need or Former Husband's ability to pay during that retroactive time period. As to retroactive child support, the Third Amended Final Judgment likewise failed to make a finding regarding Former Husband's income during the retroactive period – and instead calculated retroactive child support using the income that the trial court found Former Husband earned as of the date of the trial.
The Instant Appeal
Former Wife appeals the Third Amended Final Judgment and the trial court's Order Denying Former Wife's Motion for Rehearing of the Third Amended Final Judgment. Former Wife raises three issues.
First, Former Wife asserts that the trial court erred by finding that certain funds awarded to her as a matter of temporary relief prior to the trial were temporary alimony, but then also awarding those funds to her in equitable distribution. Those funds were: (1) a share of Former Husband's annual bonus in the amount of $16,900; (2) a share of Former Husband's annual stock options award in the amount of $14,000; and (3) a portion of an Ameritrade brokerage account in the amount of $15,000. As to the bonus and the stock options, Former Wife is incorrect that these amounts were awarded to her in equitable distribution. These amounts were treated as income to Former Husband and paid to Former Wife as temporary alimony. This was not improper. A trial court has discretion to treat stock options as income rather than assets. See Seither v. Seither , 779 So. 2d 331, 333-34 (Fla. 2d DCA 1999). Such treatment was especially appropriate here where Former Husband receives stock options every year on a recurring basis.
Former Husband argues that this argument is barred by the doctrine of res judicata because Former Wife raised this argument in her prior appeals. We reject Former Husband's argument because this issue was within the scope of the Second District Court of Appeal's remand to the trial court to "consider and clarify any findings in regard to [Former Wife's] request for retroactive alimony." See Goodman , 310 So. 3d at 493.
As to the Ameritrade account, this account was a marital asset that was treated by the trial court as temporary alimony and also granted to Former Wife in equitable distribution. This was improper. Lump sum alimony may be awarded in the form of equitable distribution. In other words, a trial court may give a party a greater share of the distribution of marital assets as a form of lump sum alimony, provided lump sum alimony is otherwise appropriate. See Pipitone v. Pipitone , 23 So. 3d 131, 136 (Fla. 2d DCA 2009) ; see also Kenney v. Goff , 259 So. 3d 140, 146 (Fla. 4th DCA 2018) ; Canakaris v. Canakaris , 382 So. 2d 1197, 1201-03 (Fla. 1980) (holding that lump sum alimony and equitable distribution may be interrelated as part of one overall scheme). However, in this case, the trial court did not purport to make an unequal distribution of marital assets for the purpose of awarding Former Wife lump sum alimony. Instead, the trial court purported to make an equal distribution of the parties’ marital estate. And yet, the trial court found a part of the supposedly equal half of the marital estate received by Former Wife to also be temporary alimony paid to her by Former Husband. If the $15,000 from the Ameritrade account was in fact temporary alimony paid by Former Husband to Former Wife, then this amount could not also be part of her equal half of the marital estate. If the $15,000 was alimony instead of part of Former Wife's portion of the marital estate, then Former Wife actually received less than half of the marital estate, even though the trial court purported to order an equal distribution of the marital estate and did not make findings to support an unequal distribution of marital assets. See § 61.075(1), Fla. Stat. ("[T]he court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors."). For these reasons, the trial court erred by determining that the $15,000 from the Ameritrade brokerage account was temporary alimony to Former Wife and also awarding this amount to Former Wife as part of an equal equitable distribution of marital assets.
Former Wife's second argument on appeal is that the trial court erred by failing to make a finding regarding Former Wife's need during the period when the dissolution was pending. Former Wife's third argument is that the trial court failed to calculate retroactive child support based on the party's net incomes during the period when the dissolution was pending. Specifically, as to Former Husband, Former Wife asserts that the trial court used Former Husband's current income as of the date of the trial, instead of making a finding and using Former Husband's actual income during the retroactive period. As to herself, Former Wife asserts that the trial court: (1) found she received income from a trust in the amount of $10,678 without competent, substantial evidence to support the finding; and (2) improperly counted assets distributed to her in equitable distribution as income for purposes of determining her net income for child support purposes. Those assets were the same assets listed above: (1) a share of Former Husband's annual bonus in the amount of $16,900; (2) a share of Former Husband's annual stock options award in the amount of $14,000; and (3) a portion of an Ameritrade brokerage account in the amount of $15,000.
Former Wife's second and third arguments are interrelated and will be addressed together. Former Wife is correct that the Third Amended Final Judgment does not include findings regarding Former Wife's need and the parties’ respective net incomes during the period when the dissolution was pending. As stated above, the Second District Court of Appeal previously found that the trial court failed to make the required findings regarding need and ability to pay with respect to Former Wife's request for retroactive alimony and retroactive child support. The Second District Court of Appeal twice remanded this case to the trial court to make those findings. We now remand this case to the trial court a third time to make these findings. On remand, the trial court must make findings regarding the parties’ respective incomes, Former Wife's need, and Former Husband's ability to pay during the period for which retroactive alimony is awarded. Retroactive child support must be revised to reflect these findings.
As to Former Wife's argument regarding the trial court's finding concerning her trust income, there was competent, substantial evidence for the trial court's finding regarding this income.
As to Former Wife's argument that the trial court improperly counted assets distributed to her in equitable distribution as income for purposes of determining her net income for the child support calculation, the bonus and stock options were not awarded to Former Wife in equitable distribution. As stated above, these items were treated as income to Former Husband and awarded to Former Wife as temporary alimony. As to the $15,000 from the Ameritrade brokerage account, as detailed above, Former Wife is correct that this was an asset awarded to Former Wife in equitable distribution. Therefore, the trial court erred by including these funds in the calculation of Former Wife's income for child support purposes. See § 61.30(2), Fla. Stat. (listing items that may be treated as income for purposes of calculating child support).
For the reasons stated herein, we reverse the Third Amended Final Judgment and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED.
COHEN and NARDELLA, JJ., concur.