Duke v. Duke

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
JOHN FRANKLIN DUKE,
Appellant,
v. Case No. 5D16-120
HEATHER DUKE,
Appellee.
________________________________/
Opinion filed February 10, 2017
Appeal from the Circuit Court
for Orange County,
Mike Murphy, Judge.
Moses R. Dewitt, of Dewitt Law Firm, P.A.,
Orlando, for Appellant.
Jonathan R. Simon, of The Orlando Family
Firm, Orlando, for Appellee.
ORFINGER, J.
John Duke (“Former Husband”) appeals the trial court’s final judgment dissolving
his marriage to Heather Duke (“Former Wife”). We reverse the alimony award, the
attorney’s fees award, the requirement that Former Husband maintain life insurance, and
the parenting plan. We affirm as to the remaining issues without comment.
The parties were married for twenty-five years before Former Wife filed a petition
for dissolution of marriage. At the time of the petition, they had one minor child. Following
a non-jury trial, the trial court entered a final judgment of dissolution of marriage, which
was subsequently amended after a motion for rehearing. The final judgment, in relevant
part, ordered Former Husband to pay permanent periodic alimony, child support,
attorney’s fees, and a reimbursable lump sum to Former Wife for alternate housing. It
also required Former Husband to maintain life insurance with Former Wife named as the
beneficiary and established a parenting plan.
Typically, courts review dissolution of marriage final judgments as a whole for an
abuse of discretion. Vitalis v. Vitalis, 799 So. 2d 1127, 1130 (Fla. 5th DCA 2001). This
includes alimony awards, Dennison v. Dennison, 852 So. 2d 422, 424 (Fla. 5th DCA
2003), attorney’s fees awards, Kelly v. Kelly, 925 So. 2d 364, 369 (Fla. 5th DCA 2006),
requirements that a party maintain life insurance, Nelson v. Nelson, 795 So. 2d 977, 986
(Fla. 5th DCA 2001), parenting plans, Schwieterman v. Schwieterman, 114 So. 3d 984,
988 (Fla. 5th DCA 2012), and the distribution of assets, Winder v. Winder, 152 So. 3d
836, 838 (Fla. 1st DCA 2014).
Here, there is no trial transcript in the record. “Without a record of the trial
proceedings, the appellate court [cannot] properly resolve the underlying factual issues
so as to conclude that the trial court’s judgment is not supported by the evidence . . . .”
Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979). Thus, for
an appellate court to review the sufficiency of evidence at trial, the appellant must either
include in the record a trial transcript or a proper substitute, such as a stipulated statement
of facts. Id.; Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). That was not
done here.
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Here, the final judgment required Former Husband and Former Wife to exercise
shared parenting of the child and “divide uncovered medical expenses in proportion to
the child support guideline percentages.” It also provided that Former Wife would “have
the majority of the responsibility with the parties’ remaining minor child” and devised the
following parenting plan:
The [Former Husband] shall have liberal contact with the minor child upon
providing 48 hours’ notice to the [Former Wife] of same. The parties shall
exercise shared parental responsibility. The [Former Husband] shall have
no less than 1/3 of the overnights with the minor child. As long as the
[Former Wife] has not previously indicated to the [Former Husband] that the
child had a conflict, the [Former Husband] shall be allowed to have two
weekends per month and the balance of weekdays for a total of at least 10
calendar nights per month. Both parents are to be involved with assisting
the child with his school work during the time that the parent is exercising
time sharing.
Like the parenting plan in Magdziak, these findings “lack specificity.” See
Magdziak, 185 So. 3d at 1293 n.2. As a result, the trial court’s failure to include a more
specific parenting plan that complies with section 61.13(2)(b) in the final judgment is an
error apparent from the face of the final judgment. See id. at 1293. We reverse and
remand for the trial court to make and include in its final judgment a legally sufficient
parenting plan.
AFFIRMED in part; REVERSED in part; REMANDED.
COHEN, C.J., and TORPY, J., concur.
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retirement accounts. Adelberg v. Adelberg, 142 So. 3d 895, 899 (Fla. 4th DCA 2014);
Niederman v. Niederman, 60 So. 3d 544, 547 (Fla. 4th DCA 2011).
Because the trial court found that Former Wife’s income was $1,560, based solely
on her full-time job, it is apparent from the face of the final judgment that the court failed
to impute interest from the one-half share of the retirement account that was awarded to
her. See Niederman, 60 So. 3d at 547 (holding that, under 26 U.S.C. §72(t) (2015),
income from retirement account can be imputed to spouse for determining alimony when
principal of account will not be invaded); see also Adelberg, 142 So. 3d at 899; Elliott v.
Elliott, 867 So. 2d 1198, 1199-1200 (Fla. 5th DCA 2004). Thus, we reverse the alimony
award and remand for the trial court to consider interest from the retirement account when
calculating Former Wife’s income.1
ATTORNEY’S FEES
Former Husband correctly argues, and Former Wife concedes, that the trial court
erred in its attorney’s fees award by failing to make the required findings. In addition to
findings of the need for and ability to pay attorney’s fees, “[t]he trial court must also make
specific findings as to the hourly rate, the number of hours reasonably expended, and the
appropriateness of reduction or enhancement factors.” Giovanini v. Giovanini, 89 So. 3d
280, 282 (Fla. 1st DCA 2012) (citing Davis v. Davis, 613 So. 2d 147, 148 (Fla. 1st DCA
1993)). A dissolution order awarding attorney’s fees that “recites simply that the total
amounts ‘are reasonable time spent and hourly rates,’ is insufficient under [Florida
1 Because alimony needs to be recalculated, we note that it also appears that the
trial court failed to reduce Former Husband’s income by the amount of taxes that he is
required to pay.
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Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985)].” Winder, 152
So. 3d at 842 (quoting Norman v. Norman, 939 So. 2d 240, 242 (Fla. 1st DCA 2006)).
Here, the trial court awarded $9,312.75 in attorney’s fees to Former Wife. It found
that Former Wife demonstrated a need for attorney’s fees and that Former Husband had
the ability to contribute to them. It provided in the final judgment that “the [Former Wife]’s
request of $9,312.75 is reasonable given the nature and duration of the instant case. The
hourly rates charged by all timekeepers is reasonable and the amount of hours billed is
reasonable.” The trial court’s failure to set forth specific findings about the hourly rate
and number of hours is error apparent from the face of the final judgment. See Esaw v.
Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007) (acknowledging that award of attorney’s
fees without adequate findings justifying amount of award is reversible even when
appellant provided inadequate record of trial court proceedings). Consequently, we must
reverse the award of attorney’s fees and remand for the trial court to make specific
findings about the hourly rate, number of hours billed, and any reduction or enhancement
factors. However, we affirm the finding of Former Wife’s need for and Former Husband’s
ability to pay attorney’s fees because, without a trial transcript, we cannot determine that
this finding was error.
LIFE INSURANCE
Former Husband argues that the trial court erred by failing to make required
findings before ordering him to maintain life insurance. When a trial court requires a party
to maintain life insurance as part of a dissolution order, it must “make specific evidentiary
findings regarding the availability and cost of insurance, the obligor’s ability to pay, and
the special circumstances that warrant the requirement for security of the obligation.”
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Foster v. Foster, 83 So. 3d 747, 748 (Fla. 5th DCA 2011). A trial court’s failure to make
these required findings is reversible error. Id. (citing Schoditsch v. Schoditsch, 888 So.
2d 709 (Fla. 1st DCA 2004)). Thus, although there is no transcript in the record, we will
reverse where the trial court fails to make factual findings in a final judgment regarding
the requirement on a party to maintain life insurance. For example, in Packo v. Packo,
120 So. 3d 232, 234 (Fla. 5th DCA 2013), this Court reversed a life insurance requirement
because the final judgment did “not include the detailed findings needed to support its
purpose,” and remanded for the trial court to make the necessary findings. See also
Palmer v. Palmer, 198 So. 3d 1035, 1036 (Fla. 5th DCA 2016) (determining that order
requiring spouse to obtain life insurance policy must include findings as to cost of
insurance and any special circumstances justifying need for policy); Velaga v. Gudapati,
148 So. 3d 550, 551 (Fla. 2d DCA 2014) (holding that court’s order requiring party to
maintain life insurance to secure alimony award must include findings on cost, whether
obligor can afford it, and special circumstances necessitating order).
Here, the final judgment states that Former Husband “shall maintain life insurance
in the amount of $250,000.00 so long as he has either a child support or alimony
obligation to the [Former Wife]. The [Former Husband] shall execute an absolute
assignment of the policy to the [Former Wife] and designate her as the irrevocable
beneficiary.” The trial court’s failure to include the required factual findings in the final
judgment is an error apparent from the face of the final judgment. See Packo, 120 So.
3d at 234. Thus, we reverse and remand for the trial court to make specific findings
regarding the availability and cost of insurance, Former Husband’s ability to pay, and the
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special circumstances that warrant the requirement for security of the obligation. See
Foster, 83 So. 3d at 748; Packo, 120 So. 3d at 234.
THE PARENTING PLAN
We agree with Former Husband’s argument that the trial court’s parenting plan
fails to comply with statutory requirements because it does not make findings required by
section 61.13(2)(b), Florida Statutes (2015). Section 61.13(2)(b) states that a parenting
plan must, at a minimum:
1. Describe in adequate detail how the parents will share and
be responsible for the daily tasks associated with the
upbringing of the child;
2. Include the time-sharing schedule arrangements that
specify the time that the minor child will spend with each
parent;
3. Designate who will be responsible for:
a. Any and all forms of health care. If the court orders shared
parental responsibility over health care decisions, the
parenting plan must provide that either parent may consent to
mental health treatment for the child.
b. School-related matters, including the address to be used
for school-boundary determination and registration.
c. Other activities; and
4. Describe in adequate detail the methods and technologies
that the parents will use to communicate with the child.
A trial court’s failure to make these required factual findings is reversible error even where
there is no transcript. Magdziak v. Sullivan, 185 So. 3d 1292, 1293 (Fla. 5th DCA 2016)
(reversing parenting plan despite having no transcript because plan set forth timesharing
schedule in only general terms).
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Here, the final judgment required Former Husband and Former Wife to exercise
shared parenting of the child and “divide uncovered medical expenses in proportion to
the child support guideline percentages.” It also provided that Former Wife would “have
the majority of the responsibility with the parties’ remaining minor child” and devised the
following parenting plan:
The [Former Husband] shall have liberal contact with the minor child upon
providing 48 hours’ notice to the [Former Wife] of same. The parties shall
exercise shared parental responsibility. The [Former Husband] shall have
no less than 1/3 of the overnights with the minor child. As long as the
[Former Wife] has not previously indicated to the [Former Husband] that the
child had a conflict, the [Former Husband] shall be allowed to have two
weekends per month and the balance of weekdays for a total of at least 10
calendar nights per month. Both parents are to be involved with assisting
the child with his school work during the time that the parent is exercising
time sharing.
Like the parenting plan in Magdziak, these findings “lack specificity.” See
Magdziak, 185 So. 3d at 1293 n.2. As a result, the trial court’s failure to include a more
specific parenting plan that complies with section 61.13(2)(b) in the final judgment is an
error apparent from the face of the final judgment. See id. at 1293. We reverse and
remand for the trial court to make and include in its final judgment a legally sufficient
parenting plan.
AFFIRMED in part; REVERSED in part; REMANDED.
COHEN, C.J., and TORPY, J., concur.
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