Moore v. Moore

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RONALD W. MOORE, )
)
Appellant/Cross-Appellee, )
)
v. ) Case No. 2D13-3204
)
ROBERTA D. MOORE, )
)
Appellee/Cross-Appellant. )
)
Opinion filed February 6, 2015.
Appeal from the Circuit Court for
Hillsborough County; Paul L. Huey, Judge.
Virginia R. Vetter, Tampa, for Appellant/
Cross-Appellee.
Lorena L. Kiely, Tampa, for Appellee/Cross-
Appellant.
CASANUEVA, Judge.
Ronald W. Moore appeals a final judgment dissolving his marriage to
Roberta D. Moore. He argues on appeal that the trial court erred in determining his
monthly income and, consequently, the amount of permanent alimony he must pay to
his Former Wife. Roberta Moore filed a cross-appeal, arguing that the trial court erred
in failing to order her Former Husband to maintain his life insurance policy and in
determining the amount of child support. We conclude that the trial court abused its
discretion in determining the Former Husband's monthly income because it failed to
consider his business expenses, and we reverse the financial aspects of the final
judgment involving alimony and child support.
A trial court's determination of a party's income has to be supported by
substantial, competent evidence. McCants v. McCants, 984 So. 2d 678, 682 (Fla. 2d
DCA 2008). For the purpose of determining the amount of income that is attributable to
a spouse in computing alimony, section 61.046(8), Florida Statutes (2010), defines
"income" as
any form of payment to an individual, regardless of source,
including, but not limited to: wages, salary, commissions and
bonuses, compensation as an independent contractor,
worker's compensation, disability benefits, annuity and
retirement benefits, pensions, dividends, interest, royalties,
trusts, and any other payments, made by any person, private
entity, federal or state government, or any unit of local
government.
In determining the amount of income that is attributable to a parent in
computing child support, section 61.30(2)(a), defines "gross income" to include
"[b]usiness income from sources such as self-employment, partnership, close
corporations, and independent contracts. 'Business income' means gross receipts
minus ordinary and necessary expenses required to produce income."
In Zold v. Zold, 911 So. 2d 1222, 1230 (Fla. 2005), the Florida Supreme
Court stated, "We conclude that construed together, sections 61.046(7), 61.30(2)(a)(3),
61.08(2)(g), 61.30(6), and 61.16(1), reflect legislative intent that trial courts consider
only that portion of a spouse's income that is available to the spouse." An award of
alimony must be based on the income that is available to the party, i.e., the party's net
monthly income. See Cissel v. Cissel, 82 So. 3d 891, 892 (Fla. 4th DCA 2011). In
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calculating a party's monthly income, business expenses must be deducted from the
party's gross income. Id.; see also Coppola v. Coppola, 630 So. 2d 673, 674 (Fla. 4th
DCA 1994) ("In calculating expenses, the court apparently failed to consider the
husband's undisputed expenses for union dues, uniforms, and unreimbursed travel
expenses, totaling over $500 per month.").
We recognize the difficult task the trial court faced in determining the
Former Husband's monthly income. He filed six financial affidavits within a two-and-a-
half-year-period which showed a monthly income after the allowable deductions in
section 61.30 varying from $4055 to $20,362. As this court stated in Trespalacios v.
Trespalacios, 978 So. 2d 858, 860 (Fla. 2d DCA 2008), "We share the trial court's
frustration in attempting to arrive at equitable numbers when a party is not candid about
his or her actual income and/or expenses." We also note that the trial court found the
Former Husband's testimony regarding his business expenses lacked credibility.
However, as this court noted in McCants, 984 So. 2d at 682, where a case
involves "a significant dispute in a party's income, meaningful appellate review is
hampered by the absence of findings as to how the trial court determined the income
amount." In the final judgment, the trial court found that the Former Husband's
"statutory net monthly income or earnings" was $23,295. The Former Husband's 2012
tax return attached a Schedule C, which indicated that his combined gross income from
two companies was $279,534. This would equate to a gross, not net, monthly income
of $23,295 per month.
Although the trial court found that the Former Husband's testimony lacked
credibility and that his business expenses were "grossly inflated," the trial court failed to
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give the Former Husband credit for any of his business expenses. The Former Wife
agreed in her brief that her Former Husband does have some nonreimbursed actual
business expenses. Some of these expenses appear to include automobile expenses,
a form of "malpractice" insurance, fees for a state license, and telephone expenses.
The trial court's failure to consider any business expenses when calculating the Former
Husband's net income was an abuse of discretion.
Accordingly, we reverse the financial aspects of the final judgment and
remand the case for the trial court to determine the Former Husband's net monthly
income and the amount of permanent alimony and child support to be awarded.1 That
portion of the final judgment dissolving the parties' marriage and ratifying the parties'
stipulations is affirmed.
Affirmed in part, reversed in part, and remanded.
KHOUZAM and BLACK, JJ., Concur.
1
The trial court may also reconsider its determination that alimony would
be nondeductible to the Former Husband and nontaxable to the Former Wife for federal
income tax purposes and its determination that the Former Husband would not be
required to maintain life insurance to secure the award of alimony and child support.
Further, the court should also consider evidence concerning the current needs of the
child.
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