Cook v. Cook , 2017 Fla. App. LEXIS 4620 ( 2017 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
CINDY ROSE COOK, )
)
Appellant, )
)
v. ) Case No. 2D16-555
)
KEVIN CRAIG COOK, )
)
Appellee. )
)
Opinion filed April 5, 2017.
Appeal from the Circuit Court for Lee
County; John S. Carlin, Judge.
Roy W. Foxall of Roy W. Foxall, P.A., Fort
Myers, for Appellant.
No appearance for Appellee.
PER CURIAM.
Cindy Rose Cook appeals a final judgment dissolving her marriage to
Kevin Craig Cook, arguing on appeal that the trial court erred in failing to award her
permanent alimony. We reverse because the trial court failed to include specific
findings of fact relating to alimony in the final judgment as required by section 61.08,
Florida Statutes (2015).
The parties' eighteen-year marriage is considered a long-term marriage for
purposes of determining alimony.1 See § 61.08(4). Section 61.08(8) provides that a
trial court may award permanent alimony following a long-term marriage if the award is
appropriate after considering the factors set forth in subsection (2). Subsection (2)
provides that "[i]n determining whether to award alimony or maintenance, the court shall
first make a specific factual determination as to whether either party has an actual need
for alimony or maintenance and whether either party has the ability to pay alimony or
maintenance." (Emphasis added.)2
In the present case, the trial court failed to make any factual findings
regarding the Wife's need and the Husband's ability to pay alimony as required by
section 61.08(2). The only finding that the trial court made regarding alimony is the
following: "There was no competent substantial evidence to support the wife's request
for alimony. The Court has reviewed the Wife's alimony claim in accordance with
Florida Statute 61.08."
The failure of a trial court to include statutorily required findings of fact to
support its denial of alimony is error. Staton v. Staton, 710 So. 2d 744, 745-46 (Fla. 2d
DCA 1998); see Abbott v. Abbott, 187 So. 3d 326, 329 (Fla. 1st DCA 2016) (reversing
final judgment of dissolution of marriage where "the trial court failed to make any
findings of fact with regard to the Former Wife's need for alimony and the Former
1
The parties were married in June 1996, and the Wife filed a petition for
dissolution of marriage on May 7, 2015.
2
If the trial court finds that one party has a need for alimony and the other
party has the ability to pay alimony, then the trial court must consider ten factors listed
in section 61.08(2) in determining what type and the amount of alimony to award.
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Husband's ability to pay, the parties' incomes and expenses, and the factors listed in
section 61.08(2)(a)-(j)"). But see Wright v. Wright, 135 So. 3d 1142, 1144 (Fla. 5th DCA
2014) (noting that a trial court's omission of these findings from the final judgment is
only harmful if the absence of such findings impedes appellate review).
There is no transcript of the trial in the record on appeal; however, the trial
court approved the Wife's "Statement of the Evidence and Proceedings." The
statement of the evidence indicates that the Husband receives a monthly disability
retirement payment of $5146.43, which is not taxed. Although the statement of the
evidence does not note the Husband's expenses, his financial affidavit reflects that his
monthly expenses are $4866.00, which leaves him with a monthly surplus of $280.43.
Consequently, the Husband appears to have the ability to pay alimony.
As to the Wife, the statement of facts notes that she works at Advance
Auto Parts where she earns a net monthly income of $894.66, and her monthly
expenses are $2780.50. Therefore, the Wife has a monthly deficit of $1885.84 and
appears to have a clear need for alimony. See Doganiero v. Doganiero, 106 So. 3d 75,
77-78 (Fla. 2d DCA 2013) (holding that award of $100 a month in durational alimony
was woefully insufficient where trial court imputed a $52,000 income to the husband and
a $24,000 income to the wife). We note that the trial court's omission of findings
hampers meaningful appellate review in this case, as it is difficult to discern why the trial
court concluded, after considering the parties' incomes, that there was "no competent
substantial evidence" to support the request for alimony to the Wife. See id. at 78.
We reverse the final judgment and remand for the trial court to make
appropriate findings as required by section 61.08. However, the trial court may, if
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necessary, reopen the evidence to address the issue of alimony. All other portions of
the final judgment of dissolution are affirmed.
Affirmed in part; reversed and remanded in part.
VILLANTI, C.J., and CASANUEVA and KELLY, JJ., Concur.
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