                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

TAMMY LYNN RHOADS,                    NOT FINAL UNTIL TIME EXPIRES TO
WIFE,                                 FILE MOTION FOR REHEARING AND
                                      DISPOSITION THEREOF IF FILED
      Appellant,
                                      CASE NO. 1D14-4477
v.

JOHN M. RHOADS,
HUSBAND,

      Appellee.

_____________________________/

Opinion filed December 22, 2015.

An appeal from the Circuit Court for Clay County.
Dan Wilensky, Judge.

William S. Graessle and Jonathan W. Graessle, Jacksonville, for Appellant.

Brian P. North of Kenny Leigh & Associates, Mary Esther, for Appellee.




BILBREY, J.

      Tammy Lynn Rhodes appeals the final judgment of dissolution of marriage

on several grounds. We find no error in the trial court’s granting the former wife’s

counsel’s motion to withdraw due to the former wife’s failure to communicate with
counsel for months prior to the motion. Likewise, the denial of the former wife’s

motion for continuance on the day of the final hearing due to the withdrawal of

counsel some three weeks prior to the hearing was within the trial court’s

discretion. See Cargile-Schrage v. Schrage, 908 So. 2d 528 (Fla. 4th DCA 2005).

In addition, we find no error in the trial court’s equitable distribution of the marital

assets in the final judgment. However, we agree with the former wife that the trial

court’s determination of the amount of permanent alimony was not supported by

competent, substantial evidence and was therefore an abuse of discretion requiring

reversal of that portion of the final judgment.

       The parties were married on June 8, 1991. During the marriage, the parties

had four children, two of whom were still minors at the time of the final judgment.

The former wife was not employed outside the home for most of the marriage, and

she had not completed her high school education. It was undisputed that the

former wife suffered from a serious medical condition. Nonetheless she testified

that she wanted to obtain her high school diploma and work towards self-

sufficiency. The former husband testified at the final hearing that he was paying

the former wife approximately $1,600 per month in temporary spousal support,

which included directly paying some of her bills. He did not testify that he had any

inability to continuing paying this amount of spousal support. The former husband

had gross income of $6,561.69 per month including bonuses while the former

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wife’s income was imputed at $1,374.53 per month based on her ability to earn at

least minimum wage.

      At the time of the final hearing, the former husband and remaining minor

children lived in the marital home and the former wife did not reside there,

pursuant to court order. The marital home was owned by the parties, free of any

note and mortgage.

      We review the adequacy of an award of alimony for abuse of discretion.

Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980); Atkins v. Atkins, 611

So. 2d 570 (Fla. 1st DCA 1992) rev. denied 623 So. 2d 493 (Fla. 1993). Based on

the evidence presented at the final hearing, and as required for an alimony award

by section 61.08(2), Florida Statutes, the trial court found that the former wife had

a need for alimony and the former husband had the ability to pay alimony. The

trial court appeared to recognize that this was a long-term marriage per section

61.08(4), Florida Statutes. In the final judgment, the trial court specifically found,

“The only evidence presented regarding Wife’s need for alimony was that she

needs auto insurance and health insurance.” The court found that the cost for such

insurance was $600.00 per month and awarded this amount as permanent alimony.

The final judgment also found that the former wife was in good health. The trial

court’s finding that the former wife only needed alimony to purchase insurance as




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well as the finding that she was in good health are not supported by the evidence

and reversal of the award of alimony is therefore necessary as inadequate.

      Because the former wife appeared pro se at the final hearing, her

presentation of evidence to support her case was inartful and disjointed.1

However, the transcript of the final hearing does contain undisputed evidence of

basic needs for the former wife’s maintenance including housing and prescription

drug expenses, in addition to her need for insurance. In her testimony, the former

wife described her credit card bills of $400 to $500 per month, and that she had

been using her credit cards to pay living expenses. The former wife also testified

that she had previously shared rent and utility payments with a friend, and that her

share of the rent amounted to $550 per month plus more for utilities, but that she

had been evicted because she was unable to pay the rent. On cross examination,

the former wife testified that she did not currently pay rent or utilities, and her


1
  The former husband argues that since the then pro se former wife did not move
for rehearing on the issue of alimony, that the inadequacy of the award is not
preserved for appellate review. This argument overstates our prior holdings which
only state that “a party is not entitled to complain that a judgment in a marital and
family law case fails to contain sufficient findings unless that party raised the
omission before the trial court in a motion for rehearing.” Simmons v. Simmons,
979 So. 2d 1063, 1065 (Fla. 1st DCA 2008) citing Owens v. Owens, 973 So. 2d
1169 (Fla. 1st DCA 2007). Here the issue was not that the trial court’s findings
were inadequate to allow for meaningful appellate review like in Owens, but
whether the trial court abused its discretion in making findings not supported by
competent, substantial evidence. See Wabeke v. Wabeke, 31 So. 3d 793 (Fla. 2d
DCA 2009); Vitro v. Vitro, 122 So. 3d 382 (Fla. 4th DCA 2012).

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testimony was vague about where she was living. The former wife stated that she

was homeless and that she was staying “everywhere,” relying on the generosity of

friends, or sleeping in her vehicle or hotels. When asked how she was spending

the $700 to $800 per month she previously paid for rent and utilities, she

responded that she had stayed “at some hotels.” In addition to her basic needs for

shelter, the former wife testified that she had medical and prescription drug bills

due to her medical condition.

      The final judgment addressed the parenting plan for the parties’ remaining

minor children and ordered that the former husband and children would remain in

the marital home until the youngest child reached the age of 18. At that point, the

court ordered that the marital home would be sold and the proceeds divided

between the parties. However, the final judgment did not make any provision for

the former wife’s current basic needs for shelter and other living expenses, and did

not make any provision for the fact that the former husband would not be paying a

mortgage or rent, unlike the former wife, thereby increasing the former husband’s

ability to pay alimony.

      Despite the former wife’s vague testimony about her housing situation, the

fact remains that the trial court’s award of $600 per month permanent alimony did

not adequately address the former wife’s needs, while the former husband had the

apparent ability to pay for more if not all of the former wife’s needs. § 61.08(2),

                                         5
Fla. Stat. As part of its equitable distribution of marital assets, the trial court did

award the former wife one-half of the former husband’s retirement account, which

the trial court “equate[d] to Wife receiving $222,313.65” plus the appreciation on

those funds. However, as the former wife correctly points out, she must not be

required to deplete her capital assets in order to maintain her standard of living as it

was during the marriage. Addie v. Coale, 120 So. 3d 44, 47 (Fla. 4th DCA 2013).

      The portion of the final judgment awarding only $600 per month as

permanent alimony, found by the court to be the amount of the former wife’s

insurance needs, fails to comply with section 61.08(2), Florida Statutes, and is not

supported by competent, substantial evidence. The award does not “provide for

the needs and necessities of life for a former spouse as they were established

during the marriage of the parties.” Mallard v. Mallard, 771 So. 2d 1138, 1140

(Fla. 2000) citing Canakaris, 382 So. 2d at 1201. Based on the record in this case

and the transcript of the final hearing, the amount of alimony awarded was clearly

not adequate and was thus an abuse of the trial court’s discretion. See Bucknam v.

Shelton, 849 So. 2d 1204 (Fla. 5th DCA 2003); Thrift v. Thrift, 632 So. 2d 202

(Fla. 1st DCA 1994); Atkins.

      Accordingly, the award of $600 per month in permanent alimony is reversed

and this case remanded for reconsideration of the proper amount of alimony based

on the factors listed in section 61.08(2), Florida Statutes. In all other respects, the

                                           6
final judgment is affirmed.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

SWANSON and MAKAR, JJ., CONCUR.




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