Price v. Price

• Decision Date: 09 March 2007
• Docket Number: No. 5D05-3713.,No. 5D05-3174.,5D05-3174.,5D05-3713.
• Parties: Robert D. PRICE, Appellant, v. Nicole Jena PRICE, Appellee.
• Court: Florida District Court of Appeals

951 So.2d 55

Robert D. PRICE, Appellant, v. Nicole Jena PRICE, Appellee.

No. 5D05-3174.

No. 5D05-3713.

District Court of Appeal of Florida, Fifth District.

March 9, 2007.

Nancy N. Nowlis and Corrine A. Bylund of Zisser, Robison, Brown, Nowlis & Maciejewski, P.A., Jacksonville, for Appellant.

Gregory E. Tucci, Ocala, for Appellee.

LAWSON, J.

Robert D. Price appeals from a final judgment dissolving his marriage to Nicole Jean Price. He challenges the award of alimony and attorneys' fees to his former wife. For the reasons explained below, we uphold the alimony award and reverse the attorneys' fees award. We also address several prior panel decisions from our court which forbid trial courts in our jurisdiction from awarding "bridge-the-gap" alimony.

Relevant Facts and Proceedings Below

Robert and Nicole Price were married in 1991 shortly after Nicole graduated from high school. At the time, Robert was on active duty in the United States Navy, and was stationed in Jacksonville, Florida. Nicole attended cosmetology school, and later received a cosmetology license. In 1991, she worked at a part-time job and earned $3,117 that year. A year later, she gave birth to a son.

Because Robert was on active duty in the Navy, which required lengthy tours of duty at sea, Nicole stayed home to care for their son for the next three years. Nicole re-entered the work force, part time, in 1995, earning an annual income of $5,509. She continued her part-time employment until 1996, when she gave birth to the couple's daughter. Nicole did not work outside of the home again until 2003, when she separated from Robert. By that time, her cosmetology license had expired. She found part-time employment in an unrelated field and earned $3,676, which she used to relocate herself and her children to Marion County, Florida. Also, using money borrowed from her parents, Nicole rented a two bedroom apartment, where she currently resides with both children.

In March of 2004, Nicole secured stable employment with the Marion County Health Department. For all but three of the eighteen months that Robert and Nicole were separated prior to trial, he sent her $600. Under the guidelines, Robert's minimum monthly child support obligation at the time of separation should have been $962.44.

In September of 2004, after 13 years of marriage, Nicole filed a petition for dissolution. In the petition, she requested primary residential responsibility for the two minor children, payment of marital debts, child support, and alimony. Prior to trial, Nicole submitted an amended family law affidavit that listed gross monthly income of $1,483.78, and net monthly income of $1,271.28. She listed total monthly expenses of $1,761, leaving her with a monthly deficit of $489.72. However, the affidavit does not list the $600 she received from Robert.

Robert submitted a family law affidavit that listed gross monthly income of $3,767.76, and net monthly income of $3,377.97. He listed total monthly expenses of $3,222.67, leaving him a monthly surplus of $155.30. The affidavit did not include the $600 monthly payment to Nicole. During the trial, Robert admitted that his post-separation gross salary had increased to $4,212.88, but that his monthly expenses had remained the same.

Nicole testified that she needed $500 in alimony to: 1) go back to school; 2) pay for reasonable and necessary expenses, including expenses not listed in her affidavit; and 3) move out of her two bedroom apartment and into a three bedroom apartment so that both children could have a room of their own. Neither party presented a rehabilitation plan, and Nicole admitted that she had neither researched the cost of returning to school nor even identified any particular program of study. She testified that it would cost an additional $300-$600 per month in rent for a three bedroom apartment. Robert admitted that a two bedroom apartment was inadequate for the children, and noted that he was willing to pay more money so that the children could be moved into a larger apartment. However, he suggested that any additional payment ordered should be added to his existing child support payment. He argued that an award of alimony was not warranted because when the $600 he had been paying in child support was added to the amount listed in Nicole's financial affidavit she had a monthly surplus sufficient to meet her needs.

The trial court considered the testimony and financial information provided and entered a final judgment of dissolution. First, the court awarded primary residential responsibility for both children to Nicole. Robert did not contest this arrangement. Second, after finding that the marriage was a partnership with each party making equal contribution, the court equally divided marital assets and liabilities. This ruling is not challenged on appeal. Third, the court found that the parties' thirteen and one-half year marriage fell into the "gray area" where there is no presumption for or against an award of alimony. However, the court noted that Nicole's decision to stop working to care for the children allowed Robert to pursue his career in the Navy. After finding that Robert had an ability to pay alimony, and that Nicole demonstrated a need for alimony, the court awarded Nicole $500 per month in permanent periodic alimony. The court noted that the award was based in part on the fact that neither party submitted a rehabilitation plan, which limited the court (under our precedent) to an award of permanent periodic alimony, or none at all.

The court specifically rejected Robert's argument that Nicole's need could only be established from the entries contained in her financial affidavit, which Robert argued showed a surplus after his prior $600 monthly child support payments. The court disagreed, noting that "the amounts for necessities reflected in her financial affidavit are pathetically low" and that her request for $500 was "a very, very reasonable request based on her extremely reasonable financial affidavit." For example, Nicole listed monthly expenses for clothing ($20), grooming ($5), and entertainment ($10). She testified that this was based upon the amount that Robert allowed her to spend on herself, for these items, during the marriage. By contrast, Robert listed greater monthly expenses for clothing ($50), grooming ($20), and entertainment ($50). Similarly, Nicole listed $430 for food, compared to Robert's $580 food budget. Additionally, Robert listed monthly expenses for cable/internet service ($75), and gifts ($50), which Nicole was not able to afford at all.

Next, the court found that Robert's child support payments had been less than required under the child support guidelines and ordered Robert to increase the payment to $942.42 per month. Based on the past discrepancy, the court also awarded Nicole $8,240.03 in retroactive child support. After the parties agreed to deduct the amount Nicole owed Robert for marital debts, the court found that Robert owed $3,331.03 to Nicole and ordered him to pay that amount in monthly installments of $50.

Finally, the court announced Nicole's entitlement to attorneys' fees, but reserved ruling on the amount for a subsequent hearing. At that hearing, the court considered testimony from another attorney regarding the reasonableness of the amount of attorneys' fees requested, and testimony from Nicole that the work was provided. The court subsequently entered an order that required Robert to pay all of Nicole's attorneys' fees, $5,555.50, within twelve months. This appeal followed.

Jurisdiction and Standard of Review

We have jurisdiction pursuant to article V, section 4(b)(1) of the Florida Constitution and rule 9.030(b)(1)(A) of the Florida Rules of Appellate Procedure. A trial court's award of alimony or attorneys' fees in a dissolution of marriage proceeding is reviewed under an abuse of discretion standard. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980).

Permanent Alimony Award

Permanent periodic alimony is used "to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties." Mallard v. Mallard, 771 So.2d 1138, 1140 (Fla.2000). "The criteria to be used in establishing this need include the parties' earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties' estates." Canakaris, 382 So.2d at 1201-02. The court may also consider any other factor necessary to do equity and justice between the parties. Id. at 1200; § 61.08(2), Fla. Stat. (2004).

The trial court considered all of these factors, as evidenced by the court's detailed final order. On appeal, however, Robert argues that the trial court erred when it awarded permanent periodic alimony under circumstances that will result in Nicole receiving more money than needed to live at the standard of living enjoyed during the marriage, as reflected in Nicole's financial affidavit. The primary flaw in Robert's argument is that it is based upon the inclusion of Robert's child support obligation as income to Nicole. As the trial court correctly pointed out, when "alimony is required because of the disparity in income between the parties, the court must first determine the amount of alimony and then, considering alimony as income, determine the amount of child support." Pike v. Pike, 932 So.2d 229, 229 (Fla. 4th DCA 2005).

When child support is not considered, Nicole's financial affidavit reflects a monthly deficit. And, we agree with the trial court that Nicole's affidavit reflects extraordinarily modest personal expenses. In short, the alimony award will allow Nicole to live at the standard of living she enjoyed during the marriage. Given the length of the marriage, the disparity of incomes between the parties,¹ Robert's ability to pay (in light of his raise), the lack of any evidence that Nicole has an earning potential beyond...