Hodge v. Hodge

• Decision Date: 20 October 2017
• Docket Number: Case No. 5D16–40
• Citation: 227 So.3d 1284
• Parties: Donald R. HODGE, Appellant, v. Ann B. HODGE, Appellee.
• Court: Florida District Court of Appeals

227 So.3d 1284

Donald R. HODGE, Appellant,

v.Ann B. HODGE, Appellee.

Case No. 5D16–40

District Court of Appeal of Florida, Fifth District.

Opinion filed October 20, 2017

Julie Glocker Pierce, Indialantic, for Appellant.

Elizabeth Siano Harris, of Widerman Malek, PL, Melbourne, for Appellee.

LAMBERT, J.

The parties appear a second time before this court regarding the dissolution of their long-term marriage. In Hodge v. Hodge , 129 So.3d 441 (Fla. 5th DCA 2013), we reversed the part of the amended final judgment of dissolution of marriage that awarded Former Wife $2500 per month in permanent periodic alimony and one-half of the total passive appreciation in certain real property (the "Old Dominion" property) that Former Husband owned at the time of the marriage. We concluded that the trial court erred when calculating the parties' respective incomes for alimony purposes by failing to deduct the ordinary and reasonable expenses from the monthly rental income generated by the Old Dominion property and by not including any investment income to Former Wife attributable to the assets awarded to her in the equitable distribution scheme. 129 So.3d at 444. We also determined that the court erred in its application of Kaaa v. Kaaa , 58 So.3d 867, 869 (Fla. 2010), in calculating Former Husband's nonmarital portion of the appreciation of the Old Dominion property. Thus, we remanded the case back to the trial court for further proceedings. Hodge , 129 So.3d at 445.

The court on remand held an evidentiary hearing and thereafter rendered the final judgment on appeal. The court, among other things, awarded Former Wife the same $2500 per month in permanent periodic alimony as well as one-half of the passive appreciation of the Old Dominion property. Former Husband appeals and, as we explain below, we again reverse on these two issues. We affirm without further discussion the remaining claims raised by Former Husband.

Former Husband argues that the trial court failed to properly apply the five-step analysis in Kaaa in calculating his nonmarital portion of the passive appreciation of the Old Dominion property. In Kaaa , the court held that the calculation of passive appreciation of nonmarital property and its equitable distribution is a fact-specific inquiry that requires a determination of: (1) the current fair market value of the home; (2) whether there was passive appreciation in the home's value; (3) whether the passive appreciation is a marital asset; (4) the value of the passive appreciation that accrued during the marriage, subject to equitable distribution; and (5) how the value is allocated. 58 So.3d at 872. Former Husband asserts, and Former Wife concedes, that a correct application of Kaaa to the Old Dominion property results in Former Wife's interest in the property being $73,645.¹ We agree. On remand, the trial court shall enter an amended judgment directing Former Husband to immediately pay Former Wife $73,645 for the equitable distribution of her interest in the Old Dominion property.²

Former Husband also contends that the trial court erred in both awarding and thereafter calculating permanent periodic alimony. Former Husband's primary argument is not that he lacks the ability to pay alimony or that permanent periodic alimony is otherwise inappropriate,³ but rather, he argues that Former Wife failed to establish her need for the alimony. See § 61.08(2), Fla. Stat. (2014) ("In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.").

"The primary factors for a court to consider when awarding alimony are the requesting spouse's need and the other spouse's ability to pay." Berger v. Berger , 201 So.3d 819, 823 (Fla. 4th DCA 2016) (quoting Sherlock v. Sherlock , 199 So.3d 1039, 1043 (Fla. 4th DCA 2016) ). In awarding alimony, the trial court is required to consider "[t]he financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each." § 61.08(2)(d), Fla. Stat. (2014). While a spouse is not required to deplete his or her capital assets in order to maintain the standard of living during the marriage, Beal v. Beal , 146 So.3d 153, 155 (Fla. 5th DCA 2014), a court in its computation of alimony should impute income that could reasonably be projected on a former spouse's liquid assets. Rosecan v. Springer , 985 So.2d 607, 609 (Fla. 4th DCA 2008)(citing Greenberg v. Greenberg , 793 So.2d 52, 55 (Fla. 4th DCA 2001) ). Here, the parties...