Beck v. Beck
| Decision Date | 27 August 2003 |
| Docket Number | No. 2D01-3517.,2D01-3517. |
| Citation | 852 So.2d 934 |
| Parties | William M. BECK, Jr., Appellant/Cross-Appellee, v. Sydney BECK, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Wesley Pardue of Knox & Givens, P.A., Tampa, for Appellant/Cross-Appellee.
Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee/Cross-Appellant. FULMER, Judge.
In this appeal from the final judgment of dissolution of marriage, William M. Beck, Jr., ("the Husband") challenges the award of permanent alimony, the equitable distribution scheme, and the award of attorney's fees and costs. In the cross-appeal, Sydney Beck ("the Wife") challenges the award of child support and alimony, the sufficiency of the life insurance ordered to secure the support awards, and the award of attorney's fees and costs. We find no merit in the issues raised by the Husband. However, on the cross-appeal, we reverse and remand for the trial court to recalculate the amount of alimony and child support and to reconsider the amount of the attorney's fees and costs. In all other respects, we affirm.
The parties were married on October 25, 1986, and have one child, born in 1989. They separated on or before May 1, 1999. In the Amended Final Judgment, the trial court found that the Wife works as a secretary earning $13,433 annually with a net monthly income of $830. The Husband works as a salesman and earns $83,272 annually with a net monthly income of $5,018. The Husband inherited trust assets from his parents that were valued at almost one million dollars at the time of the final hearing. The trial court awarded the trust assets to the Husband as his nonmarital property. The Wife was awarded $1,500 per month in permanent alimony and $809 per month in child support. The Husband was directed to maintain a $50,000 life insurance policy as security for both his child support and alimony payments.
The Husband received a total distribution, marital and nonmarital, of $1,060,156. The bulk of his assets ($947,852) were income-producing liquid investments. The Wife received a total distribution of $156,423, including approximately $52,000 in liquid assets, consisting primarily of the cash value of the Husband's life insurance policy ($46,215).
The Wife argues that the trial court erred in omitting the Husband's trust income from its determination of the Husband's total income for the purpose of calculating the alimony and child support awards. We agree. In determining the amount of alimony, section 61.08(2)(d), Florida Statutes (2000), requires the trial court to consider the financial resources of each party including the nonmarital assets distributed. And section 61.08(2)(g) requires that "[a]ll sources of income available to either party" must be considered. Section 61.046(7) defines income as "any form of payment to an individual, regardless of source, including, but not limited to... trusts." Although the trial court recited that "HUSBAND has significant Non-Marital Assets from which he may contribute to WIFE's support," it does not appear that the trial court included any trust income in assigning the amount of $5,018 as the Husband's net monthly income. The Husband's trust income must be considered in the computation of alimony. See O'Connor v. O'Connor, 782 So.2d 502 (Fla. 2d DCA 2001)
.
Likewise, the trust income must be included in the determination of gross income for the purpose of computing child support. Section 61.30(2)(a)(12) provides that gross income shall include income from "royalties, trusts, or estates." See Oxley v. Oxley, 695 So.2d 364, 367 (Fla. 4th DCA 1997)
. The fact that the Husband elected to defer receipt of the trust income during the pendency of the proceedings does not shield the income from consideration. See O'Connor, 782 So.2d at 504; Oxley, 695 So.2d at 367. Therefore, we reverse the alimony and child support awards and remand with directions to redetermine both after including the Husband's actual or imputed trust income.
Another deficiency in the alimony award is that the trial court did not make a finding as to the Wife's actual need. Before setting alimony, a trial court must first make determinations of actual need and ability to pay. O'Connor, 782 So.2d at 503-04. With respect to ability to pay, the trial court found that the Husband's net monthly income is $5,018. The trial court also found that the Husband "has significant Non-Marital Assets from which he may contribute to WIFE's support." However, as we have just discussed, it does not appear that the trial court assigned a value to the Husband's trust income. With respect to the Wife's need, the trial court found that the Wife's net monthly income without alimony is $830 per month and also recited as a finding the single conclusion that "the combined monthly expenses for WIFE and Child as reflected on WIFE's financial affidavit are inflated." The trial court failed to identify the expenses that it determined were inflated and did not explain the amount of reduction that was apparently made in the recalculation of the Wife's asserted need. The trial court's failure to make a finding as to the Wife's actual need requires reversal for reconsideration of the alimony award.
We also reverse the award of attorney's fees and costs. The trial court found the Wife was entitled to all of her reasonable fees and costs from the Husband. However, the trial court determined that the Wife's legal and expert witness fees were unreasonable:
The Court finds that the attorney's fees charged by both counsel and by the WIFE's expert[,] SUE MELENDI, were unreasonable and unconscionable as they have amounted to over 70% (seventy percent) of the marital estate divided herein. This case was over-litigated and the Court finds that Ms. Melendi's attendance...
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