DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ONTHONIO WHYTE,
Appellant,
v.
VALENTINA ECKERT WHYTE,
Appellee.
No. 4D20-1576
[March 2, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Victoria L. Griffin, Judge; L.T. Case No. 562019DR000286.
Meaghan K. Marro of Marro Law, P.A., Plantation, for appellant.
Valentina Eckert Whyte, Port St. Lucie, pro se.
ARTAU, J.
The husband, Onthonio Whyte, appeals a final judgment dissolving the
marriage between him and his wife, Valentina Eckert Whyte. We reverse
the durational alimony award because it exceeded the length of the
marriage in contravention of the statutory maximum and was erroneously
based on imputed income without setting forth findings supported by
competent, substantial evidence of the husband’s income sources and
probable earnings. In all other respects, we affirm the final judgment.
Statutory Maximum for Durational Alimony
We review a question of statutory interpretation de novo. State v.
Gabriel,
314 So. 3d 1243, 1246 n.2 (Fla. 2021) (citing Richards v. State,
288 So. 3d 574, 575 (Fla. 2020)). If the language of the statute we are
interpreting is clear, the statute is given its plain meaning, and we do “not
look behind the statute’s plain language for legislative intent or resort to
rules of statutory construction.” City of Parker v. State,
992 So. 2d 171,
176 (Fla. 2008) (quoting Daniels v. Fla. Dep’t of Health,
898 So. 2d 61, 64
(Fla. 2005)).
“The length of a marriage is the period of time from the date of marriage
until the date of filing of an action for dissolution of marriage.” § 61.08(4),
Fla. Stat. (2019). The husband and the wife were married from February
4, 2007, until the filing of the divorce on February 1, 2019. As the trial
court acknowledged in the final judgment, the marriage’s duration was
“three (3) days shy of twelve years.” Yet, the trial court awarded durational
alimony for a full twelve years.
Section 61.08(7), Florida Statues (2019), provides that “the length of an
award of durational alimony may not be modified except under exceptional
circumstances and may not exceed the length of the marriage.” Id.
(emphasis added).
Our sister court in Diaz v. Diaz,
152 So. 3d 743 (Fla. 3d DCA 2014),
rejected an “equitable” argument that “under exceptional circumstances,
the term of an award of durational alimony may exceed the duration of the
marriage.” Id. at 744. Recognizing that it was not at liberty to disregard
the plain words of the statute, our sister court concluded that “[t]his
‘equitable’ argument fails because of the clarity of the statute.” Id.
(reversing durational alimony award of four years because it exceeded the
statutory limit for a marriage of three years and four months).
While the length of the marriage in this case was just shy of the twelve
years of durational alimony awarded by the trial judge, the Florida
Legislature imposed a statutory maximum prohibiting any award of
durational alimony that exceeds the length of a marriage. The statutory
maximum is clear and unambiguous. It does not provide discretion to
exceed the statutory maximum even when the duration of the marriage is
shy of the amount awarded by a de minimis amount. As our supreme
court explained in Holly v. Auld,
450 So. 2d 217 (Fla. 1984), “courts of this
state are ‘without power to construe an unambiguous statute in a way
which would extend, modify, or limit, its express terms or its reasonable
and obvious implications. To do so would be an abrogation of legislative
power.’”
Id. at 219 (emphasis in original omitted) (quoting Am. Bankers
Life Assurance Co. of Fla. v. Williams,
212 So. 2d 777, 778 (Fla. 1st DCA
1968)).
Thus, the trial court erred by awarding durational alimony that
exceeded the statutory maximum.
Imputation of Income
The standard of review of a trial court’s order imputing income to a
spouse is whether competent, substantial evidence supports the findings.
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Freilich v. Freilich,
897 So. 2d 537, 543 (Fla. 5th DCA 2005). “To impute
income to [a spouse], the trial court [is] required to set ‘forth in its final
judgment the amount imputed and the sources for this income.’” Stough
v. Stough,
18 So. 3d 601, 606 (Fla. 1st DCA 2009) (quoting Griffin v. Griffin,
993 So. 2d 1066, 1068 (Fla. 1st DCA 2008)). “The trial court may only
impute a level of income supported by the evidence of employment
potential and probable earnings based on work history, qualifications, and
prevailing wages in the community.” Zarycki-Weig v. Weig,
25 So. 3d 573,
575 (Fla. 4th DCA 2009) (citing Schram v. Schram,
932 So. 2d 245, 250
(Fla. 4th DCA 2005)).
The evidence in this case reflects that the husband works as a boat
captain and marine technician on seasonal projects. The seasonal nature
of these projects leaves gaps in his income which he has supplemented in
the past by taking some temporary trucking jobs.
The trial court disregarded as incredulous the husband’s claim that he
has been unable to supplement his seasonal work because of recent health
issues. Instead, the trial court relied on testimony which indicated the
husband passed on one opportunity which would have provided him with
work for five months, but made no findings on how much income he would
have earned in those five months, and what sources of income would have
been available to the husband beyond that five-month opportunity.
Based on the husband’s tax returns, the trial court concluded that in
2017 the husband earned $88,946.00, in 2018 he earned $90,893.65,
and in 2019 he earned $61,514.52 for seven months of seasonal work. At
the wife’s suggestion, the trial court annualized the husband’s 2019
income by dividing his gross income of $61,514.52 by the seven months
of seasonal projects, concluding he could earn $8,787.79 per month. The
trial court then multiplied that monthly amount by twelve months to
determine an annualized imputed income of $105,453.48. This approach
did not account for the seasonal nature of husband’s work with its
historical income gaps. Merely multiplying earnings from a few months of
the husband’s past income on the assumption that he could continue
generating the same amount each month despite his work’s seasonal
nature is no substitute for setting forth proper findings to impute income
supported by competent, substantial evidence of the husband’s income
sources and probable earnings.
As a result, the trial court erred in imputing income to the husband
that exceeded his historical earnings. Indeed, the trial court’s imputation
of income was approximately $15,000 more than the husband had earned
in any of the prior years.
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Conclusion
Accordingly, we reverse the award of durational alimony, including the
retroactive award of durational alimony credited against husband’s
equitable distribution, and remand for further proceedings consistent with
this opinion. In all other respects, we affirm the final judgment.
Affirmed in part, reversed in part, and remanded with instructions.
CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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