Bryan v. Bryan, 1D99-3492.

• Decision Date: 16 August 2000
• Docket Number: No. 1D99-3492.,1D99-3492.
• Citation: 765 So.2d 829
• Parties: Ralph D. BRYAN, Appellant, v. Joyce Bethea BRYAN, Appellee.
• Court: Florida District Court of Appeals

765 So.2d 829

Ralph D. BRYAN, Appellant, v. Joyce Bethea BRYAN, Appellee.

No. 1D99-3492.

District Court of Appeal of Florida, First District.

August 16, 2000.

E. Jane Brehany, Pensacola, for Appellant.

Mary L. Mattair, Pensacola, for Appellee.

BROWNING, J.

Ralph D. "Randy" Bryan, the former husband, appeals certain provisions of a 1999 final judgment and an amended final judgment dissolving his April 1988 marriage to Joyce Bethea Bryan, the appellee and former wife. The appellant contends that the trial court erred, in four key respects: 1) by awarding rehabilitative alimony to the appellee for a period of five years; 2) by calculating his child support obligation without including in the appellee's income the rental value of the marital home, the exclusive possession and use of which were awarded to her during the minor child's minority; 3) by unequally distributing the parties' assets and liabilities without including sufficient findings; and 4) by requiring the appellant to pay 30 per cent of the appellee's attorney's fees and costs. We affirm the final judgments insofar as they dissolved the parties' marriage and designated the appellee as the primary residential parent of the minor child. However, we conclude that the trial court abused its discretion by awarding rehabilitative alimony to "bridge the gap" for five years, by failing to take into account the rental value of the former marital residence in calculating the appellee's income and the appellant's child-support obligation, and by effecting a substantially unequal distribution of the assets and liabilities without including adequate findings of fact to justify the result. In correcting these errors on remand, the record basis on which the issue of attorney's fees and costs was resolved very well may change, requiring the trial court to review whether an award of all or a portion of attorney's fees and costs is still appropriate.

I. REHABILITATIVE ALIMONY

The 40-year-old appellant was ordered to pay rehabilitative alimony for five years in the amount of $1,250.00 monthly. In the final judgment, the trial court found that rehabilitative alimony is proper to allow the 46-year-old appellee "to complete her education, stabilize her emotional circumstances, and additionally to bridge the gap." The appellant argues that the lower court erred in awarding rehabilitative alimony where the appellee made no such request. See Fullerton v. Fullerton, 709 So.2d 162 (Fla. 5th DCA 1998)

. Proceedings brought under Chapter 61, Florida Statutes, are equitable in nature and, accordingly, "are governed by basic rules of fairness as opposed to a strict rule of law." Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997). Mindful of this consideration, we conclude that the record discloses that the issue was tried by implied consent. See Fla. R. Civ. P. 1.190(b); Siverling v. Siverling, 447 So.2d 996 (Fla. 5th DCA 1984); Robinson v. Robinson, 340 So.2d 935 (Fla. 4th DCA 1976). In the fifth paragraph of her petition for dissolution, the appellee requested temporary, permanent, and lump-sum alimony. However, on direct examination, the appellee testified (without an objection from opposing counsel) that she was seeking permanent alimony as well as alimony to rehabilitate herself. The issue is properly before us for review. See Purvis v. Purvis, 732 So.2d 460 (Fla. 1st DCA 1999); Hemraj v. Hemraj, 620 So.2d 1300 (Fla. 4th DCA 1993); Shrine v. Shrine, 429 So.2d 765 (Fla. 1st DCA 1983).

"This court has held that rehabilitative alimony cannot be awarded absent a rehabilitative plan." Fullerton, 709 So.2d at 164. The appellant correctly notes that the appellee did not present a specific written or oral rehabilitation plan. Thus, the award of rehabilitative alimony cannot stand. See Beasley v. Beasley, 717 So.2d 208, 209 (Fla. 5th DCA 1998)

; Register v. Register, 690 So.2d 750 (Fla. 5th DCA 1997) (party requesting rehabilitative alimony must prove necessity for award and present plan for rehabilitation). Our inquiry does not end here, however, for the absence of a specific rehabilitative plan will not rule out an award on some other basis, such as for transitional, short-term assistance. We have approved alimony to "bridge the gap," i.e., to assist the payee spouse "in making the transition from a married to a single life." Vanbrussel v. Vanbrussel, 710 So.2d 170, 171 (Fla. 1st DCA 1998); Shea v. Shea, 572 So.2d 558, 560 (Fla. 1st DCA 1990). In such instances, where no rehabilitative plan is presented, the bridge-the-gap award must have a relatively brief durational limit. See e.g., Blase v. Blase, 704 So.2d 741 (Fla. 4th DCA 1998); Vick v. Vick, 675 So.2d 714 (Fla. 5th DCA 1996); Iribar v. Iribar, 510 So.2d 1023 (Fla. 3d DCA 1987); Murray v. Murray, 374 So.2d 622 (Fla. 4th DCA 1979). Although a trial court has considerable discretion to award this type of alimony for a reasonable time period, we find that the court abused its discretion in ordering bridge-the-gap alimony for a five-year period. Our holding would not preclude an award of short-term assistance to the appellee.

II. RENTAL VALUE OF MARITAL HOME

In her petition for dissolution of marriage, the appellee asked to be designated the primary residential parent of the minor child. Alleging a special equity by way of her contribution to the purchase of the former marital home using significant premarital assets, the appellee sought the exclusive use and possession of the residence and its contents. The equitable distribution statute provides that in dividing marital assets and liabilities between the parties, the trial court may consider "[t]he desirability of retaining the marital home as a residence for any dependent child of the marriage, or any other party." § 61.075(1)(h), Florida Statutes (1997). The court awarded the appellee exclusive possession and occupancy of the former marital home on Sea Breeze Lane for the approximately three years until the daughter turns 18 or graduates from high school. The home is titled in both parties' names as tenants by the entireties, and each party was made responsible for a pro rata share of the taxes, insurance, and necessary repair and maintenance expenses associated with the former marital home. As of the date of the final hearing, the only instrument encumbering the former marital residence was a home equity loan, which had a monthly payment of $343.00

Having awarded alimony to the appellee, the trial court adjusted the appellant's child-support obligation accordingly. The court reduced the appellant's net monthly income to $3,350.00 and increased the appellee's to $2,160.00, for a combined net monthly income of $5,512.00. The appellant's and appellee's respective shares of income are about 61 and 39 per cent. The appellant was ordered to pay monthly child support in the amount of $618.00 in semi-monthly payments commencing November 15, 1998 until the child reaches age 18.

For the first time on appeal, the appellant argues that the trial court erred in calculating his monthly child support obligation without including, in the income of the appellee as the resident spouse, the rental value of the former marital residence. In support of his position, the appellant relies in part upon the child support guidelines statute, which states in pertinent part:

(2) Income shall be determined on a monthly basis for the obligor and for the obligee as follows:

(a) Gross income shall include, but is not limited to, the following items:

* * *

(13) Reimbursed expenses or in kind payments to the extent that they reduce living expenses.

§ 61.30(2)(a)13, Florida Statutes (1997); Hinton v. Smith, 725 So.2d 1154 (Fla. 2d DCA 1998); Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995).

The appellant also relies on Thomas v. Thomas, 712 So.2d 822 (Fla. 2d DCA 1998), where, in the course of dissolution proceedings, the trial court declared the parties tenants in common of the former marital residence and directed each of them to pay one-half of the associated mortgage payments, taxes, and insurance premiums. The former wife, Mrs. Thomas, was granted exclusive use and possession of the home for so long as she and the minor child lived together during the child's minority. Given the former husband, Mr. Thomas's, 48 per cent share of the parties' combined net income, the court ordered him to pay monthly child support of $554.00 pursuant to the statutory guidelines. The trial court explained that the former husband was being directed to pay the property taxes based on his obligation as a tenant in common. The court determined that Mr. Thomas's child-support obligation should not be reduced by a credit for one-half the fair rental value of the home, for Mrs. Thomas's exclusive right to occupy it was an aspect of child support. See id. at 823. Reviewing the lower tribunal's rulings in Mr. Thomas's appeal, the Second District Court noted that the trial court had correctly applied the applicable law of real property governing the responsibility of each tenant in common for property expenses in proportion to his or her ownership, with the attendant entitlement "to his or her proportionate share of the property's use, enjoyment, and profits." Id. Nevertheless, the district court acknowledged the applicability of family law principles too:

[W]hen an owner's possession of the property is an aspect of court-ordered support, the nonresident may not claim rent, even though the resident owner has been granted the exclusive right to occupy the property, and even though the nonresident has been directed to pay his or her share of the property expenses. See Berger v. Berger, 559 So.2d 737 (Fla. 5th DCA 1990)

Thomas, 712 So.2d at 823; Richardson v. Richardson, 722 So.2d 280 (Fla. 5th DCA 1998). The appellate court concluded that the trial court had correctly refused to apply Mr. Thomas's share of the marital home's rental value against his child-support obligation. See id.

The inquiry does not end...