ALBERTO RABADAN v. ANA RABADAN ( 2021 )


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  •        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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