Opinion
No. 1D19-3741
11-10-2021
Stephen WATREL, Former Husband, Appellant/Cross-Appellee, v. Kathleen A. WATREL, Former Wife, Appellee/Cross-Appellant.
Michael J. Korn of Korn and Zehmer, P.A., Jacksonville, and Brian G. Roberts of Roberts and Reiter, P.A., Jacksonville, for Appellant/Cross-Appellee. William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellee/Cross-Appellant.
Michael J. Korn of Korn and Zehmer, P.A., Jacksonville, and Brian G. Roberts of Roberts and Reiter, P.A., Jacksonville, for Appellant/Cross-Appellee.
William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellee/Cross-Appellant.
Per Curiam.
In this appeal and cross-appeal from a final judgment of dissolution of marriage, we find merit in one point of error raised by each party. For the reasons that follow, we reverse the final judgment in part and remand for further proceedings consistent with this opinion. As to all other issues raised by the parties, we affirm without further discussion.
After a twenty-year marriage, the former husband filed his divorce petition in October 2017, seeking equitable distribution of marital assets and liabilities, and shared parental responsibility for the parties’ two daughters. The former wife filed a counterpetition, requesting child support, all forms of alimony, equitable distribution, and exclusive possession of the marital home. During the marriage, the former husband was a personal injury attorney. The former wife has a master's degree in psychological counseling and is a licensed mental health counselor. She stopped working in 2001 to care for the parties’ first child who has special needs. This child is now an adult, and the former husband has sole responsibility for her ongoing financial and residential care. The parties’ second child is a teenager who resides with the former wife.
Relevant to this appeal, the final judgment of dissolution awarded the former wife $10,000 per month in permanent alimony. The trial court broadly found that the former wife's needs exceed her request for $11,500 per month and that the former husband has the ability to pay. In considering the alimony award, the court specifically reduced the amount to $10,000 per month given the former husband's ongoing obligation to support the parties’ adult, dependent daughter. The former husband was also charged with $6,500 per month in child support obligations. The former wife requested that the former husband pay all her attorney's fees, but the court ordered him to pay only part of her total fees.
The former husband argued below and on appeal that the trial court failed to impute income to the former wife, resulting in an excessive alimony award. At trial, the former wife and a vocational rehabilitation specialist presented evidence of the former wife's wage-earning capacity. Based on that evidence, the court found that the former wife's current wage-earning capacity is $35,200 annually. Yet the record does not reflect that the trial court included any imputed income in its determination of the alimony award. This was error.
"[T]he two primary considerations in the award of permanent alimony are need and ability to pay. As to the need, the court must consider the standard of living enjoyed during the marriage and each party's age, health, and earning ability ." O'Connor v. O'Connor , 782 So. 2d 502, 503 (Fla. 2d DCA 2001) (emphasis added) (citing Canakaris v. Canakaris , 382 So. 2d 1197 (Fla. 1980) ). "To impute income for the purposes of child support and alimony, a trial court must first find the parent is voluntarily underemployed or unemployed, not due to a physical or mental incapacity or other circumstance beyond the parent's control. If the court makes this finding, it must impute income." McDuffie v. McDuffie , 155 So. 3d 1234, 1236 (Fla. 1st DCA 2015) (citations omitted).
Here, there is no indication that the trial court included the former wife's ability to contribute to her own support in its alimony calculation. We must therefore reverse on this issue and remand for recalculation of the alimony award in light of the former wife's imputed income. See Hentze v. Denys , 88 So. 3d 307, 311 (Fla. 1st DCA 2012) ; see also Hornyak v. Hornyak , 48 So. 3d 858, 863 (Fla. 4th DCA 2010) (holding that it was error for the court to accept that the former wife could make $40,000 and that jobs were available in the community but still impute a lesser amount of income to her).
In her cross-appeal, the former wife argues that the trial court erred in awarding her only $65,000 of her requested $130,000 attorney's fees without making any factual findings to support the partial fee award. Below, the trial court found that the former wife does not have the ability to pay her attorney's fees, while the former husband has that ability and had already contributed to some extent. Nonetheless, the court awarded only half of the requested amount, summarily concluding that "there comes a point when time spent exceeds that which is reasonably necessary."
We agree with the former wife that the trial court's failure to adequately explain the basis for its fee award impedes meaningful appellate review. As this Court has explained, "an attorney's fee award under section 61.16, Florida Statutes, must include specific findings of fact to support and explain the award. The absence of such findings requires reversal of the fee award and a remand for specific findings of fact to support the fee award." Fleming v. Fleming , 279 So. 3d 763, 765 (Fla. 1st DCA 2019) (internal citation omitted) (citing Dorsey v. Dorsey , 266 So. 3d 1282, 1289 (Fla. 1st DCA 2019) ); see also Arena v. Arena , 103 So. 3d 1044, 1047 (Fla. 2d DCA 2013) (reversing a trial court's fee order when the trial court found former husband had the ability to pay and former wife had a need, but the fee order failed to set forth factual findings on any factor that justified the specific amount awarded).
Here, even if the trial court intended to grant the former wife only partial attorney's fees as a sanction for excessive and unnecessary billing by her attorney, it failed to directly quantify the portion and nature of the fees incurred as a result of this conduct. Without more, the $65,000 award appears arbitrary. We therefore reverse and remand with directions that the trial court reconsider the former wife's request for fees and make findings of fact sufficient to permit review of its decision.
AFFIRMED in part, REVERSED in part, and REMANDED .
Ray, Winokur, and Long, JJ., concur.