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

VIRGINIA ABBOTT, FORMER                 NOT FINAL UNTIL TIME EXPIRES TO
WIFE,                                   FILE MOTION FOR REHEARING AND
                                        DISPOSITION THEREOF IF FILED
      Appellant,
                                        CASE NO. 1D15-2550
v.

TODD ABBOTT, FORMER
HUSBAND,

      Appellee.


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Opinion filed March 8, 2016.

An appeal from the Circuit Court for Washington County.
William L. Wright, Judge, Judge.

William E. Whitlock, III, Tallahassee, for Appellant.

John Y. Roberts of Roberts, Roberts & Roberts, Marianna, for Appellee.




LEWIS, J.

      Appellant, the Former Wife, appeals the final judgment of dissolution of

marriage, arguing that the trial court erred in its calculation of the permanent alimony

award, in denying her request for retroactive alimony, and in failing to make the
requisite findings of fact pursuant to section 61.08, Florida Statutes (2013). The

Former Wife also asserts that the trial court erred in awarding her only $5,000 in

attorney’s fees and by failing to make any findings of fact on this issue. Because the

trial court failed to make sufficient factual findings to allow for a meaningful review,

we reverse the alimony and attorney’s fees awards.

      In the final judgment of dissolution of marriage, the trial court divided the

parties’ assets and liabilities, awarded an equalization payment to the Former Wife,

and then found and ordered as follows:

             5.      Section 61.08 of the Florida Statutes sets forth the factors
      for this Court to consider in determining the amount of alimony, if any,
      to be awarded to the Wife. Among other things, this Court has
      considered the standard of living established during the marriage, the
      duration of the marriage, the age and the physical and emotional
      condition of each party, the financial resources of the parties, work
      experience of the parties, and the contributions of each party to the
      marriage. The Court finds that the Wife has a need and the Husband has
      the ability to pay permanent alimony to the Wife, in the sum of $750.00
      per month commencing on March 10, 2015 . . . .

             6.     The court finds that the Wife has a need and the Husband
      has the ability to contribute towards her attorney’s fees. The Court finds
      that reasonable attorney’s fees to be awarded to the Wife totals
      $5,000.00. . . .

The trial court denied the Former Wife’s motion for rehearing, in which she argued

in part that the trial court failed to make the requisite findings in awarding alimony,

in not making the alimony payments retroactive, and in awarding attorney’s fees.

This appeal followed.

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      The trial court’s alimony award is reviewed for an abuse of

discretion. Broemer v. Broemer, 109 So. 3d 284, 289 (Fla. 1st DCA 2013). An

appellate court will not disturb an alimony award if it is supported by competent,

substantial evidence and the trial court complied with the law, but it reviews the trial

court’s application of the law to the facts de novo. Id. Section 61.08, Florida Statutes

(2013), governs the award of alimony and provides in part that “[i]n all dissolution

actions, the court shall include findings of fact relative to the factors enumerated in

subsection (2) supporting an award or denial of alimony.” Subsection (2) in turn

requires the court to “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.” Id. If the court finds that a party has a

need for alimony and the other party has the ability to pay, then, in determining the

proper type and amount of alimony, “the court shall consider all relevant factors,

including, but not limited to” those enumerated in subsection (2)(a)-(j). Id. Those

factors include the standard of living established during the marriage; the duration

of the marriage; the age and the physical and emotional condition of each party; the

financial resources of each party; the earning capacities, educational levels,

vocational skills, and employability of the parties; and the sources of income

available to the parties. Id. Additionally, “[i]n awarding permanent alimony, the




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court shall include a finding that no other form of alimony is fair and reasonable

under the circumstances of the parties.” § 61.08(8), Fla. Stat.

      The trial court’s failure to include in the final judgment the requisite findings

of fact relative to the factors enumerated in section 61.08(2) generally constitutes

reversible error because, in most cases, it precludes meaningful appellate

review. Winder v. Winder, 152 So. 3d 836, 840-41 (Fla. 1st DCA 2014) (reversing

the permanent alimony award to the wife because the final judgment lacked

sufficient factual findings as required by section 61.08 where the trial court did not

make findings regarding the wife’s current living expenses, the parties’ financial

resources and the sources of income available to them, the value of the assets and

liabilities distributed to each party, the standard of living established during the

marriage, and each party’s contribution to the marriage, and reversing for the

additional reason that the trial court failed to expressly find that no other form of

alimony would be appropriate); see also Watson v. Watson, 124 So. 3d 340, 343

(Fla. 1st DCA 2013) (noting that the trial court failed to include in the final judgment

all the findings required by section 61.08(2) and directing the court to make those

findings on remand); Galstyan v. Galstyan, 85 So. 3d 561, 564 (Fla. 4th DCA 2012)

(“In determining ability to pay, the trial court must make specific findings of fact

regarding the paying spouse’s financial resources.”); Gray v. Gray, 103 So. 3d 962,




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964-67 (Fla. 1st DCA 2012) (reversing the alimony award because the final

judgment failed to include sufficient factual findings).

      Further, the trial court may award retroactive alimony when appropriate, but

it must be based on the receiving spouse’s need and the paying spouse’s ability to

pay. Valentine v. Van Sickle, 42 So. 3d 267, 274 (Fla. 2d DCA 2010) (noting that

the trial court made no findings about the parties’ incomes between the time of the

divorce filing and the entry of the final judgment as required by section 61.08); see

also Vitro v. Vitro, 122 So. 3d 382, 385 (Fla. 4th DCA 2012).

      Lastly, a trial court’s award of attorney’s fees is reviewed for an abuse of

discretion and is controlled by section 61.16, Florida Statutes. Mitchell v. Mitchell,

141 So. 3d 1228, 1229 (Fla. 1st DCA 2014). Section 61.16(1), Florida Statutes

(2013), provides that “[t]he court may from time to time, after considering the

financial resources of both parties, order a party to pay a reasonable amount for

attorney’s fees, suit money, and the cost to the other party of maintaining or

defending any proceeding under this . . . .” The purpose of section 61.16 is “‘to

ensure that both parties will have a similar ability to obtain competent legal

counsel.’” Broemer, 109 So. 3d at 290 (quoting Rosen v. Rosen, 696 So. 2d 697,

699 (Fla. 1997)). “A trial court must determine the ultimate issue of fees and costs

after the dissolution proceeding concludes, based on the parties’ respective financial

circumstances.” Id.

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      “[A] trial court reversibly errs when it awards attorney’s fees without making

the requisite findings as to the proper amount,” “‘even if there is competent,

substantial evidence to support the award.’” Mitchell, 141 So. 3d at 1229 (internal

citation omitted). An order to pay a portion of the spouse’s attorney’s fees must be

based on the requesting party’s need and the other party’s ability to pay the

fees. Winder, 152 So. 3d at 842. “‘The trial court must [] make specific findings as

to the hourly rate, the number of hours reasonably expended, and the appropriateness

of reduction or enhancement factors.’”        Id. (internal citation omitted).    “‘A

dissolution order directing a party to pay the other party’s fees and costs, which

recites simply that the total amounts “are reasonable time spent and hourly rates,” is

insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145,

1150 (Fla.1985)].’” Id. (internal citation omitted); see also Mitchell, 141 So. 3d at

1229-30 (reversing in part and remanding to allow the court to make the requisite

findings where the final judgment merely recited that the hours and hourly rate in

the wife’s affidavit of attorney’s fees and costs were reasonable, but did not make

specific findings as to the number of hours expended by the wife’s attorney or

whether those hours were reasonable, as required under Rowe); Bradham v.

Bradham, 120 So. 3d 1274, 1276 (Fla. 1st DCA 2013) (reversing and remanding the

attorney’s fees award where the trial court found that the former wife had a need for

a contribution to her attorney’s fees and costs and the former husband had an ability

                                          6
to pay, the former wife submitted an affidavit from her attorney’s law firm attesting

to the fees and costs incurred and detailed records of the hourly rate and hours

expended, but there was no indication that the trial court considered the Rowe

factors); Ard v. Ard, 765 So. 2d 106, 107 (Fla. 1st DCA 2000) (reversing and

remanding the attorney’s fees award where there was competent, substantial

evidence in the record to support the award, but the trial court failed to make factual

findings regarding the total number of hours expended by the appellee’s attorney,

the hourly rate, or the reasonableness of the fee).

      Here, the trial court failed to make any findings of fact with regard to the

Former Wife’s need for alimony and the Former Husband’s ability to pay, the

parties’ incomes and expenses, and the factors listed in section 61.08(2)(a)-(j); as

such, we are constrained to reverse the alimony award, especially in light of the

conflicting evidence that was presented during the hearing about her monthly

expenses and his income. We likewise must reverse the attorney’s fees award

because the trial court did not make any findings of fact about the parties’ need and

ability to pay, the attorney’s hourly rate, the number of hours reasonably expended,

the reasonableness of the fee, and the appropriateness of reduction or enhancement

factors.

      Accordingly, we REVERSE the alimony and attorney’s fees awards and

REMAND for further proceedings consistent with this opinion.

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SWANSON, and WINOKUR, JJ., CONCUR.




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