Kelley v. Kelley, 2D06-712.

• Decision Date: 06 December 2006
• Docket Number: No. 2D06-712.,2D06-712.
• Citation: 967 So.2d 924
• Parties: Valerie KELLEY, Appellant, v. Hazen Peter KELLEY, Appellee.
• Court: Florida District Court of Appeals

967 So.2d 924

Valerie KELLEY, Appellant, v. Hazen Peter KELLEY, Appellee.

No. 2D06-712.

District Court of Appeal of Florida, Second District.

December 6, 2006.

Rehearing Denied January 10, 2007.

Jean Marie Henne, Winter Haven, for Appellant.

T.W. Weeks, III, Lakeland, for Appellee.

ALTENBERND, Judge.

Valerie Kelley (the Wife) appeals a final judgment of dissolution of marriage, challenging the trial court's failure to award her a greater amount of monthly permanent periodic alimony and the full amount of the reasonable attorneys' fees she incurred in the litigation. Based upon the evidence presented to the trial court, we conclude the trial court abused its discretion in failing to award the Wife a greater amount of permanent periodic alimony. We therefore reverse and remand for further proceedings, at which time the Wife's request for attorneys' fees should also be reconsidered.

The parties were married for over twenty-nine years. They have two grown children. They had accrued over $1.6 million in assets over the course of the marriage, which the court equitably distributed in the final judgment. The majority of the Wife's share of equitable distribution consisted of the family home valued at $240,000, the contents of that home, and a retirement account worth $245,000. It was undisputed that the Wife was a homemaker throughout the marriage and provided the primary care for the children when they were young. The Wife was unemployed at the time of the hearing and had not been employed for over twenty-three years. She was fifty-six years old.

The Husband had been the primary wage earner throughout the marriage. At the final hearing, he testified that he earned gross income of $153,367 ($12,780.58 per month) and net income of $137,533 ($11,461.10 per month) in 2004. Although the Husband feared his income might decrease in the future, there was no specific evidence that this would occur. The Husband, who was fifty-two years old, testified that he hoped to retire at age fifty-five.

The Husband conceded that the Wife was entitled to permanent periodic alimony. The dispute at trial centered on the monthly amount of such support. The Wife's financial affidavit listed total monthly expenses of $5821 per month. Because the Husband earned a net monthly income of almost two times this amount, the focus was primarily on the reasonableness of the Wife's needs, not the Husband's ability to pay.

The Wife conceded that although she had thus far had no luck finding employment, she could become employed at minimum wage. In addition, the Wife acknowledged that some of the assets distributed to her could produce income to meet her needs.¹ Based upon these two sources, the Wife estimated that she could provide $2450 toward her own support.² After considering the income tax implications regarding the payment of alimony, the Wife calculated that she would need $3883.10 per month in permanent periodic alimony to meet the remainder of her expenses.

The Husband presented testimony calling into question specific expenses listed on the Wife's financial affidavit. For example, he testified that the Wife should need $60 less than the amount listed for lawn care, $25 less for pool care, and $192 less for health insurance. He noted that a $280 per month expenditure for counseling could be avoided if the Wife chose a different provider from within the Wife's health insurance plan. He also suggested that the Wife unreasonably traded in a 1994 vehicle and acquired a monthly car payment of approximately $500.³ He made more general complaints about the amount she listed for gas expenses, home repair, and personal grooming expenses, but he provided no testimony on what a reasonable monthly expense would be for these necessary items.

The trial court indicated that it felt some of the Wife's expenses were inflated. Without indicating what specific expenses were unreasonable, or what amounts were appropriate based upon the evidence presented, the trial court awarded the Wife $1585 per month in alimony. This, coupled with the imputed income the Wife conceded she could earn by working full-time at minimum wage and from collecting the income produced by her assets, provided the Wife gross income of $4035. It leaves the Husband with gross income of $11,195—excluding the income he can indisputably earn from his share of the equitable distribution of assets.

We recognize, of course, that the resulting difference in the parties' income, in excess of $7000 per month, while facially very troubling, is not dispositive of this issue. However, even if the trial court had accepted in its entirety the monthly expense figures suggested by the Husband, the Wife had unchallenged needs in excess of $4500 per month. Nevertheles...