Threadgill v. Nishimura

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RONALD THREADGILL, )
)
Appellant, )
)
v. ) Case No. 2D15-5547
)
KATHLEEN NISHIMURA, )
)
Appellee. )
___________________________________ )
Opinion filed June 28, 2017.
Appeal from the Circuit Court for
Hillsborough County; Richard A. Nielsen,
Judge.
Monica P. Lopez Da Silva of Da Silva Law
Firm, P.A., Tampa, for Appellant.
No appearance for Appellee.
KHOUZAM, Judge.
Ronald Threadgill (the Former Husband) timely appeals the circuit court's
order partially granting Kathleen Nishimura's (the Former Wife) motion for indirect civil
contempt and enforcement. We reverse in part and dismiss in part.
After a twenty-four year marriage, the parties were divorced in 2012. As
part of those proceedings, the Former Husband agreed to pay one-third of his gross
income and bonuses to the Former Wife as permanent alimony. In November 2013, the
Former Wife filed a motion for indirect civil contempt and enforcement in which she
alleged that the Former Husband underpaid alimony in 2012 and 2013. Following a
hearing,1 the trial court found that the Former Husband owed the Former Wife a total of
$8250 in unpaid alimony and found that the Former Wife was entitled to attorney's fees
for the bringing of her motion. The Former Husband filed a motion for rehearing which
was subsequently denied. On appeal, he maintains the trial court erred in calculating
the alimony he owed for 2012 and 2013 and in awarding the Former Wife attorney's
fees.
"The trial court's award of alimony is subject to an abuse of discretion
standard of review, and where the record does not contain substantial, competent
evidence to support the trial court's findings regarding the amount of alimony awarded,
the appellate court will reverse the award." Wabeke v. Wabeke, 31 So. 3d 793, 795
(Fla. 2d DCA 2009) (quoting Farley v. Farley, 858 So. 2d 1170, 1172 (Fla. 2d DCA
2003)).
First, the Former Husband argues the trial court erred in calculating his
2012 alimony obligations because it failed to deduct his ordinary and necessary
business expenses. As a threshold matter, we note that an alimony award is usually
based on a party's net, as opposed to gross, income. See Kingsbury v. Kingsbury, 116
So. 3d 473, 474 (Fla. 1st DCA 2013) ("The ability to pay alimony should be based on
the party's net income." (citing Vanzant v. Vanzant, 82 So. 3d 991, 993 (Fla. 1st DCA
1
The record on appeal does not contain a transcript of this hearing.
However, a statement of evidence prepared in accordance with Florida Rule of
Appellate Procedure 9.200(b)(4) was transmitted as a part of the record in lieu of a
transcript.
-2-
2011))). However, we reiterate that the Former Husband agreed to calculate the
alimony based on his gross income and has not challenged this method of calculating
alimony.
In 2012, the Former Husband was self-employed. Accordingly, the court
was required to calculate his income based on his business income, defined as "gross
receipts minus ordinary and necessary expenses required to produce income." Smith v.
Smith, 575 So. 2d 228, 228 (Fla. 2d DCA 1991) (quoting In re Amendments to Rules of
Civil Procedure, 536 So. 2d 974, 987 (Fla. 1988)); see also § 61.30(2)(a), Fla. Stat.
(2013) (defining business income as "gross receipts minus ordinary and necessary
expenses required to produce income," for the purposes of gross income calculations in
determining child support). Here, the trial court erred in calculating the Former
Husband's business income using his gross receipts without subtracting his ordinary
and necessary business expenses. See Cissel v. Cissel, 82 So. 3d 891, 892 (Fla. 4th
DCA 2011) (reversing alimony award where "trial court failed to deduct the husband's
undisputed business expenses" in calculating former husband's income).
The trial court also erred in calculating the alimony owed by the Former
Husband in 2012 because it failed to fully account for the alimony already paid. In its
order, the court made a factual finding that the Former Husband paid $4000 in 2012.
This finding is repeated in the statement of evidence approved by the trial court.
Nevertheless, in calculating the Former Husband's past due alimony for 2012, the trial
court's order only credited the Former Husband $2500. Accordingly, the trial court's
calculation of the Former Husband's past due alimony for 2012 is erroneous because it
is inconsistent with the court's own findings. See Boone v. Boone, 3 So. 3d 403, 405
-3-
(Fla. 2d DCA 2009) (finding that court's decision to reduce alimony payment was
inconsistent with its owns findings); Dolfi v. Dolfi, 667 So. 2d 409, 410 (Fla. 5th DCA
1996) (reversing alimony award that was inconsistent with the court's findings regarding
former husband's ability to pay).
With respect to the trial court's calculations of the Former Husband's 2013
alimony obligations, the Former Husband argues the trial court erred in including a
$12,500 payment to the Former Husband in his gross income. The court found this
payment to be a moving allowance as opposed to an employment bonus. Despite this
finding, the trial court included this moving allowance in calculating the Former
Husband's gross income for 2013. Thus, the trial court's alimony award for 2013 is also
inconsistent with its own findings and must be reversed. See Boone, 3 So. 3d at 405;
Dolfi, 667 So. 2d at 410.
Finally, the Former Husband challenges the award of attorney's fees to the
Former Wife. We decline to address this issue because we lack jurisdiction. The trial
court's order found the Former Wife was entitled to attorney's fees but did not set an
amount. An order that merely finds entitlement to attorney's fees but does not set an
amount is a nonfinal, nonappealable order. See Alexopoulous v. Gordon Hargrove &
James, P.A., 109 So. 3d 248, 250 (Fla. 4th DCA 2013); Mills v. Martinez, 909 So. 2d
340, 342 (Fla. 5th DCA 2005) ("An award of attorney's fees does not become final, and,
therefore, appealable until the amount is set by the trial court."); Chaiken v. Suchman,
694 So. 2d 115, 117 (Fla. 3d DCA 1997) (stating that an order awarding entitlement to
attorney's fees does not become final until the amount of the fee is set); see also Fla. R.
App. P. 9.130 (limiting appealable nonfinal orders to those enumerated in the rule).
-4-
Accordingly, we dismiss the appeal insofar as the Former Husband challenges the
finding that the Former Wife is entitled to attorney's fees.
In sum, we reverse the alimony awards for 2012 and 2013 and remand for
the court to recalculate the Former Husband's past due alimony for those years
consistent with this opinion. Insofar as the Former Husband challenges the award of
attorney's fees to the Former Wife, the appeal is dismissed.
Reversed and remanded in part with instruction; dismissed in part.
WALLACE and BADALAMENTI, JJ., Concur.
-5-