Esad Kurtanovic, Husband v. Zineta Kurtanovic, Wife , 248 So. 3d 247 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-202
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ESAD KURTANOVIC, Husband,
Appellant,
v.
ZINETA KURTANOVIC, Wife,
Appellee.
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On appeal from the Circuit Court for Duval County.
Steven M. Fahlgren, Judge.
May 25, 2018
ROBERTS, J.
In this appeal from a final judgment of dissolution of
marriage, the former husband raises multiple issues on appeal: (I)
the trial court erred when it calculated the equitable distribution
award; (II) the trial court erred when it required the former
husband to make a lump-sum payment; (III) the trial court erred
by imputing income to the former husband when it calculated the
alimony payments; (IV) the trial court erred by awarding the
former wife retroactive alimony; (V) the trial court erred when it
required the former husband to secure the former wife’s alimony
award with life insurance; (VI) the trial court erred by ordering the
former husband’s alimony payments to continue past his death;
and (VII) the trial court erred in granting the former wife
attorney’s fees and costs. We find the trial court’s equitable
distribution scheme contained a mathematical error and remand
for correction of the error and otherwise affirm the equitable
distribution scheme. We find the trial court erred when it required
the former husband to make a lump-sum payment to the former
wife as there is no indication in the record that the former husband
had the ability to pay such an award. We find no error in the trial
court’s imputation of income to the former husband and award of
alimony and retroactive alimony to the former wife and affirm. We
find the trial court erred when it required the former husband to
obtain life insurance to secure the former wife’s alimony award and
when it required the alimony award to extend beyond the former
husband’s death. Because the parties appear to be on equal
financial footing after equitable distribution and the award of
alimony, we reverse the trial court’s award of attorney’s fees and
costs to the former wife.
Equitable Distribution
An appellate court reviews a trial court’s equitable
distribution scheme for abuse of discretion. Stough v. Stough, 18
So. 3d 601, 604 (Fla. 1st DCA 2009). The trial court provided a
thorough equitable distribution scheme that contains a
mathematical error in the initial equalization amount. After
distributing the parties’ assets and debts, the trial court found that
the former husband received $3,739.61 more than the former wife.
The record clearly shows that there was only a difference of
$1,739.61. Based on the correct difference, the former wife was
only entitled to an initial equalizing payment of $869.80 rather
than $1,869.80. Therefore, we reverse on this point and remand
for the trial court to correct the mathematical error and to reduce
the former wife’s total equitable distribution equalizing payment
by $1,000.00. We otherwise affirm the equitable distribution
award. See Ard v. Ard, 765 So. 2d 106, 107 (Fla. 1st DCA 2000)
(reversing the equitable distribution scheme solely to correct a
mathematical error and otherwise affirming the equitable
distribution scheme).
Lump-Sum Payment
“[A] lump sum equalizing payment to accomplish
equitable distribution ‘is properly awarded only when the
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evidence reflects a justification for such an award and the
ability of the paying spouse to make the payment without
substantially endangering his or her economic status.’ ”
Abramovic v. Abramovic, 188 So. 3d 61, 64 (Fla. 4th DCA 2016)
(quoting Fortune v. Fortune, 61 So. 3d 441, 446 (Fla. 2d DCA 2011)
(emphasis added) (quoting Bishop v. Bishop, 47 So. 3d 326, 331
(Fla. 2d DCA 2010)). See also Neal v. Meek, 591 So. 2d 1044, 1046
(Fla. 1st DCA 1991) (any required lump-sum payment must be
supported by findings of fact demonstrating the payor spouse’s
ability to make the payment within the contemplated timeframe).
The trial court made no findings with regards to the former
husband’s ability to pay a lump-sum equalizing payment. Because
there is no indication in the record that the former husband had
the ability to make a lump-sum payment within the time frame set
by the trial court, we reverse.
Alimony
An appellate court reviews an award of alimony for abuse of
discretion. Abbott v. Abbott, 187 So. 3d 326, 327 (Fla. 1st DCA
2016). The appellate court reviews the application of the law to
the facts of the case de novo and will not reverse an alimony award
if it is supported by competent, substantial evidence. Id.
Imputation of Income
When calculating an award of alimony using imputed income,
the trial court must find that the party it is imputing income to is
(1) underemployed or unemployed and (2) the underemployment
or unemployment is not based on a physical or mental incapacity
or based on a circumstance that the other party cannot control.
McDuffie v. McDuffie, 155 So. 3d 1234, 1236 (Fla. 1st DCA 2015).
If the trial court finds that a party is unemployed or
underemployed, the trial court must impute income. Id.
During the marriage, the former husband started his own
trucking business, which provided the majority of the financial
support for the parties. During the time the former husband
owned his own business, the parties were able to enjoy a
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comfortable lifestyle. Shortly after the parties separated, the
former husband claimed that his last tractor broke down and the
repairs were too expensive, causing him to lose his business. He
also testified that he could not work in the trucking industry
because he had vision problems. The former wife testified that the
former husband told her that he was no longer working in the
trucking industry in order to avoid paying her alimony. The trial
court found the former husband’s testimony was not credible.
A trial court can impute income where a spouse has failed
to use his or her best efforts to earn income. A claim that
a payor spouse has arranged his financial affairs or
employment situation so as to shortchange the payee
spouse is a valid matter to be explored in determining the
payor's real ability to pay.
Smith v. Smith, 737 So. 2d 641, 644 (Fla. 1st DCA 1999) (citations
omitted).
In determining imputation of income for alimony awards, the
courts have applied the same factors as those applied to imputing
income for child support. Gray v. Gray, 103 So. 3d 962, 967 (Fla.
1st DCA 2012) (citing Smith v. Smith, 737 So. 2d 641 (Fla. 1st DCA
1999)). Section 61.30(2)(b), Florida Statutes (2014), states in
relevant part:
Monthly income shall be imputed to an unemployed or
underemployed parent if such unemployment or
underemployment is found by the court to be voluntary
on that parent’s part, absent a finding of fact by the court
of physical or mental incapacity or other circumstances
over which the parent has no control. In the event of such
voluntary unemployment or underemployment, the
employment potential and probable earnings level of the
parent shall be determined based upon his or her recent
work history, occupational qualifications, and prevailing
earnings level in the community if such information is
available.
The trial court found that income should be imputed to the
former husband, and there is competent, substantial evidence to
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support the amount imputed to the former husband based on his
2014 gross business receipts, his business credit card statements,
and his business taxes. The record shows that the former
husband’s business began to slow down soon after the former wife
filed this cause of action on August 1, 2014. Thus, the trial court
used the most recent credible income available as required by the
statute, and we find that the trial court did not err.
The former husband also challenges the amount of rental
property income the trial court attributed to him. The trial court
appears to have adopted the former wife’s evidence with regards
to the rental property income. The former wife’s rental property
income deducted amounts for homeowner’s association fees,
insurance, and mortgages. The former husband had the duty to
put forth evidence to establish any additional deductions. See
Hodge v. Hodge, 129 So. 3d 441, 443 (Fla. 5th DCA 2013) (the
person claiming that deductions should be made has the duty to
establish the deductions for maintenance of the property from the
rental property income). Because the former husband failed to put
forth competent, substantial evidence to support his claim for
additional deductions, we find no error in the trial court’s
calculations.
We find that the trial court’s ruling on the award of alimony
is supported by competent, substantial evidence and affirm.
Retroactive Alimony
An award of retroactive alimony must be based on the
receiving spouse’s need during the retroactive period and the payor
spouse’s ability to pay during the retroactive period. Abbott, 187
So. 3d at 328. Because there is competent, substantial evidence to
support the trial court’s award of retroactive alimony, we affirm
this issue.
Life Insurance to Secure Award of Alimony
The former husband argues that the trial court erred when it
required him to obtain life insurance because the former wife did
not request her alimony to be secured by life insurance in her
pleadings or during the proceedings. We find that it was error for
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the trial court to require this additional financial burden as the
former husband had no notice and was not given the opportunity
to present a defense on this issue. See Stalnaker v. Stalnaker, 892
So. 2d 561, 563 (Fla. 1st DCA 2005) (trial court did not err in
ordering the payor spouse to secure the alimony award by
obtaining life insurance since the issue was raised during trial
without objection); see also Eisele v. Eisele, 91 So. 3d 873, 874 (Fla.
2d DCA 2012) (trial court does not have authority to require a
party to obtain life insurance to secure child support payments
unless such relief has been requested); Lowe v. Lowe, 789 So. 2d
1202, 1202 (Fla. 4th DCA 2001) (trial court erred in ordering the
payor spouse to obtain life insurance to secure his alimony
payments when the payee spouse failed to request the relief in her
motion for contempt). Accordingly, we reverse.
Alimony Beyond Death
An alimony award generally cannot survive the death of the
payor spouse. See Zimmerman v. Zimmerman, 766 So. 2d 1196,
1196 (Fla. 1st DCA 2000) (a spouse’s obligation to pay permanent
alimony terminates upon his death); O’Malley v. Pan Am. Bank of
Orlando, Nat’l Ass’n, 384 So. 2d 1258, 1260 (Fla. 1980) (“[T]he well
established rule is that an obligation to pay alimony ceases upon
the death of the obligor, unless that person expressly agrees that
the estate shall be bound to continue to pay alimony after his
death.”). Finding no agreement by the former husband to pay
alimony after his death, we reverse the trial court’s ruling that the
former husband’s estate is responsible for the former wife’s
alimony payments upon his death.
Attorney’s Fees and Costs
The standard of review for an award of attorney’s fees is abuse
of discretion. Watson v. Watson, 124 So. 3d 340, 343 (Fla. 1st DCA
2013). The primary consideration for an award of attorney’s fees
and costs is the financial resources available to each party. See §
61.16(1), Fla. Stat. (2014). “The purpose of . . . section [61.16(1)] is
to ensure that both parties will have a similar ability to obtain
competent legal counsel.” Broemer v. Broemer, 109 So. 3d 284, 290
(Fla. 1st DCA 2013) (quoting Rosen v. Rosen, 696 So. 2d 697, 699
(Fla. 1997)). An award of attorney’s fees and costs should not be
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granted when the parties are equally able to pay attorney’s fees
and costs after the court has equally distributed the property and
equalized the parties’ incomes. Hutchinson v. Hutchinson, 185 So.
3d 528, 529 (Fla. 1st DCA 2015). Because the parties’ financial
resources and income appear to be equal after equitable
distribution and the award of alimony, we reverse the trial court’s
award of attorney’s fees and costs to the former wife. On remand,
the trial court shall revisit the award of attorney’s fees and costs,
taking into account the equalization of the parties’ financial
resources and incomes.
AFFIRMED in part; REVERSED in part, and REMANDED with
instructions.
WETHERELL and ROWE, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Michael M. Giel of Giel Family Law, P.A., Jacksonville, for
Appellant.
No appearance for Appellee.
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