DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ALBERTO RABADAN,
Appellant/Cross-Appellee,
v.
ANA RABADAN,
Appellee/Cross-Appellant.
No. 4D19-3219
[May 19, 2021]
Appeal and cross-appeal from the Fifteenth Judicial Circuit, Palm
Beach County, Dina A. Keever-Agrama, Judge; L.T. Case No. 50-2017-DR-
008256-XXXX-NB.
Denise C. Desmond and Howard Rudolph of Rudolph & Associates,
LLC, West Palm Beach, for appellant/cross-appellee.
Ralph T. White of The Law Office of RT White, Palm Beach Gardens, for
appellee/cross-appellant.
ON APPELLEE/CROSS-APPELLANT’S MOTION FOR REHEARING
PER CURIAM.
The appellee/cross-appellant’s motion for rehearing is denied, but we
withdraw our corrected opinion issued on March 31, 2021, and replace it
with the following opinion.
Appellant, Alberto Rabadan (“Husband”), seeks review of an alimony
award granted to Appellee, Ana Rabadan (“Wife”), after presentation of
divergent expert testimony on the financial ability of Husband to pay
alimony. We reverse the alimony award because it leaves the Husband
with significantly less net income than the Wife, in violation of section
61.08(9), Florida Statutes (2017).
Background
Husband and Wife each presented opposing forensic accountants to
opine on Husband’s capacity for alimony. Factors affecting their opinions
were: the valuation of the family business; a change in industry standards
for competitive bidding in the business’s road maintenance projects; the
cost and propriety of a new warehouse lease for the business; a significant
increase in payroll expenses; and a line of credit which Husband obtained
to allegedly preserve the business.
Wife’s accountant testified that her need was $9,523 per month and
that Husband’s net income was $15,260 per month. Husband’s
accountant testified that Wife’s monthly need was $7,877 per month and
that Husband’s net income was negative – [$2,331] per month. The
conflicting testimony on Husband’s income was attributed to how each
accountant treated the factors listed above.
The trial court was persuaded by Wife’s accountant and found that
Husband had the ability to pay $8,000 per month. The trial court also
awarded comprehensive health and dental insurance that was open-ended
and did not contain a monetary limitation on the maximum cost of those
insurances. The trial court then ordered the Husband to purchase a life
insurance policy to secure the alimony. The trial court failed to make
findings regarding the availability and cost of the life insurance policy and
the impact such cost would have on the Husband.
Analysis
An alimony award is reviewed for abuse of discretion. Canakaris v.
Canakaris,
382 So. 2d 1197, 1202 (Fla. 1980).
Section 61.08(9) states that “[t]he award of alimony may not leave the
payor with significantly less net income than the net income of the recipient
unless there are written findings of exceptional circumstances.” §
61.08(9), Fla. Stat. (2017) (emphasis added).
“An alimony award, combined with other awards such as health
insurance for a minor child, may leave [the paying spouse] without the
means to support himself [or herself], such that no reasonable [person]
could differ as to the impropriety of the court’s award.” Ballesteros v.
Ballesteros,
819 So. 2d 902, 903 (Fla. 4th DCA 2002). “It is well-
established that a trial court may, in its discretion, order a spouse to pay
a reasonable amount for medical insurance premiums as a part of the
alimony award.” Cyphers v. Cyphers,
373 So. 2d 442, 445 (Fla. 2d DCA
1979).
However, if a provision of the final judgment requires a party to provide
medical or dental insurance for the other party, there must a monetary
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limitation on the “maximum cost of such insurance.” Guralnick v.
Guralnick,
645 So. 2d 1097, 1097-98 (Fla. 4th DCA 1994). A trial court
may require a party to maintain life insurance to secure alimony, but “it
must make ‘specific findings as to the availability and cost of the policies
and the impact of such cost on the [spouse].’” Jimenez v. Jimenez,
211 So.
3d 76, 79 (Fla. 4th DCA 2017) (quoting Norman v. Norman,
939 So. 2d 240,
241 (Fla. 1st DCA 2006)).
Here, the trial court was persuaded by testimony from the Wife’s
accountant in determining that Husband’s net income was $15,260 per
month and granting the Wife $8,000 per month as a base alimony award.
The trial court also required the Husband to pay other expenses on behalf
of the Wife as part of the final alimony award, including her health and
dental insurance expenses. And the Husband was required to purchase
life insurance to secure his alimony obligations. When these additional
expenses are added to the base alimony award, the Husband is left with
“significantly less net income than the net income of the recipient” in
violation of section 61.08(9).
The trial court may leave a paying spouse with significantly less net
income than the net income of the receiving spouse only when it makes
“written findings of exceptional circumstances.”
Id. Understandably, the
trial court wanted to ensure the Wife would have enough alimony to meet
her needs, particularly since she was suffering from a terminal illness. But
the trial court failed to make the requisite findings to warrant an exception
to section 61.08(9).
Instead, the trial court simply stated in the final judgment that the Wife
relies upon her adult children for assistance with “daily activities,
transportation to medical care, and emotional support.” The trial court
then concluded the alimony needed to provide for a “residence large
enough for one or more of her adult children to reside with her.”
The trial court’s justification impermissibly required the Husband to
contribute to the support of adult children that he no longer had a legal
obligation to support. See § 743.07(2), Fla. Stat. (2017) (recognizing only
two exceptions that permit a court to require support for adult children:
(1) dependents who are incapacitated and (2) adult children that are still
in high school “with a reasonable expectation of graduation before the age
of 19”).
In conclusion, while we affirm the other issues raised by the Husband
and the issue raised on cross-appeal by the Wife, we hold the trial court’s
failure to include any express “written findings of exceptional
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circumstances” that could justify leaving the Husband with significantly
less net income than the Wife requires us to reverse and remand for an
appropriate determination of alimony consistent with this opinion. The
$8,000 base alimony award appears to be the ceiling and not the floor.
If on remand the trial court includes an amount to be paid directly by
the Husband for the Wife’s health and dental insurance, the trial court
shall comply with the dictates of Guralnick, 645 So. 2d at 1097-98. And,
if on remand the trial court requires the Husband to purchase life
insurance to secure his alimony obligation, the court shall make the
findings required by Jimenez,
211 So. 3d at 79.
Reversed in part, affirmed in part, and remanded with instructions.
LEVINE, C.J., MAY and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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