          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D17-1413
                 _____________________________

GREGORY RAWSON, Former
Husband,

    Appellant,

    v.

LISA L. RAWSON, Former Wife,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Santa Rosa County.
David Rimmer, Judge.

                        February 4, 2019


JAY, J.

     Gregory Rawson, the former husband, and Lisa L. Rawson,
the former wife, appeal and cross-appeal, respectively, the trial
court’s Final Judgment of Dissolution of Marriage. Having
carefully considered the unique and complicated facts of this case
and the extensive arguments of the parties—as well as having
given due deference to the trial court’s exercise of its discretion
toward the matters before it—we have concluded that all points
raised by the former husband on appeal must be affirmed, but
three of the four points raised by the former wife on cross-appeal
call for reversal. 1

                                 I

     The parties had been married just over twenty-eight years
when the former husband filed his Petition for Dissolution of
Marriage and Other Relief on November 9, 2015. During those
twenty-eight years, the parties moved frequently and purchased
several parcels of property, some of which contained the family’s
homes and others of which were designated as rentals. This
peripatetic lifestyle was due in large part to the former wife’s
having served, off and on for twenty years, as a commissioned
officer in the United States Navy.

     There were four children born of the marriage with only one
minor child remaining at the time of the final hearing—a son, who
turned eighteen on October 5, 2017. Over the years, as the family
grew, the former wife was deployed to both domestic and foreign
ports of call. For the most part, while based in the United States,
the children remained with the former wife and were cared for by
her retired parents. Often, the former husband followed along with
his family, but, just as often, he did not—preferring to remain
behind in the city where he was at the time employed.

     Upon the former wife’s retirement from the Navy, the parties
moved to Gainesville, Florida, where the former wife took a job
with the University of Florida working in Human Resources in the
Department of Engineering. In addition, she worked at the
recreation center as a swim instructor. However, she quit her job
with the university and moved back to Memphis, Tennessee,
where the parties owned property and a home, and took a position
with a company as a business analyst, while the former husband
stayed in Gainesville with the youngest child. From there, he
worked remotely for his own Tennessee employer.

    From that point forward, the parties changed employment
frequently. In 2013, the entire family moved to Gulf Breeze,

    1 We affirm without further discussion Points II, III, and IV
raised on appeal, and Point III raised on cross-appeal.

                                2
Florida. Not long after, the former husband moved back to
Memphis and a new job, while the former wife remained in Gulf
Breeze. For a time, the former wife also moved to Memphis to work
for the University of Tennessee Medical Group (“UTMG”), where
the former husband was doing “consulting” work, while the parties’
youngest son remained in Florida with his grandfather. But, when
UTMG began to downsize, both parties were laid off. The former
wife returned to Gulf Breeze, while the former husband took up
residence in their Arlington, Virginia condominium.

     At the final hearing on the former husband’s petition and the
former wife’s counter-petition, the trial court heard testimony from
each party, as well as from their adult daughter, a certified public
accountant, career and employment rehabilitation consultants,
and a neuropsychologist who had examined the former wife. While
the divorce proceedings were pending, the former husband was
arrested for domestic violence/battery against the former wife. A
domestic violence injunction against the former husband was still
in effect at the time of the hearing.

     The former wife testified that the former husband’s
threatening behavior against her began when he was served with
her Petition for Dissolution of Marriage. She testified that he told
her that she would lose everything and go into bankruptcy, while
he would be “in Hawaii with his new lover.” Additionally, he
threatened that if she ever tried “to come after him for alimony or
child support, he would kill [her] and make it look like a suicide
because [she is] so crazy everyone would believe him.” She also
testified that the former husband had not paid child support or
alimony since June 2015 and was paying only the mortgage on
their house in Tennessee, while the former wife was paying for all
the other properties.

     When the former wife resigned her commission with the Navy
in 2010, she did so with an 80% disability rating according to the
Department of Veterans Affairs. Her financial affidavit reflected
that at the time of the final hearing, she worked two days a week
at the YMCA, earning $120 per month. In addition, she received a
monthly disability check for $1900, as well as her Navy retirement
pay of $3977. She was in debt to her father, who had loaned her
$87,500 for the home in which she was then living, as well as an

                                 3
additional $100,000 for her legal expenses. The former wife
testified that she hoped to begin repaying her father $1000 per
month when she was able. Her financial affidavit showed her
monthly income was $5,165, while her monthly expenses totaled
$11,670.

     Much of the former wife’s monthly expenses was attributable
to the mortgage payments on properties she and the former
husband owned during the marriage. They owned rental property
in Sanford, Florida, and in Gulf Breeze. As noted earlier, besides
the family home in Gulf Breeze, the parties owned the
condominium in Arlington, Virginia, as well as a home in
Lakeland, Tennessee. The parties stipulated to the values of those
properties with the exception of what was also intended to be
rental property for boarding horses, located on Brunswick Road in
Arlington, Tennessee. The former wife had negotiated a twelve-
month lease with an option for a second year on the latter property,
with the lessees agreeing to make repairs and get the property
back in shape, but the former husband blocked the deal on the day
it was to be signed by sending out the police based on his
accusation that the wife had no business being there, as it was a
personal farm in his name only.

     The former wife testified that once the divorce was final and
her youngest child was out of high school, she would attempt to
find a job in human resources that would accommodate her
disabilities. As a long-term plan, she suggested she could also
possibly put a house on the Brunswick Road property and run a
horse boarding business—boarding and feeding the horses, and
working with the owners—which she described as a fairly low-
stress career and something she could do to support herself.

     As for the former husband, on the day that he was first served
with the former wife’s initial petition for dissolution—which she
later voluntarily dismissed—he took a full distribution from his
401(k) plan and drained the former wife’s retirement account along
with his own. He also cashed out their joint checking account for
the sum of $3500. The 401(k) plan had $40,000 in it and was
earmarked for their minor son’s housing costs once he entered
college.


                                 4
     An accountant testified that he had advised the parties to file
a joint return for 2015, but the former husband filed a separate
return claiming head-of-household status and the youngest child
as a dependent. Unaware of this fact, the former wife did
likewise—since the youngest child lived with her—which,
according to the accountant, would more likely than not raise a red
flag with the Internal Revenue Service. The 2015 tax returns were
admitted into evidence. They revealed that the former husband
claimed losses and took deductions that should have been shared
equally between the two parties. In addition, the former husband
took full advantage of an overpayment that resulted from their
2014 joint return by applying it to his own 2015 tax return.
Significantly, the accountant testified that the present value of the
wife’s military pension was $728,645.

                                 II

     After the hearing, the trial court took on the sizable task of
sifting through and scrutinizing the voluminous evidence. In its
lengthy final judgment, after largely discrediting the former
husband’s testimony and weighing in the balance his dissipation
of assets, the court crafted a division of the marital properties and
other assets between the parties; considered each of the factors set
forth in section 61.13(a)-(t), Florida Statutes, concerning parental
responsibility and timesharing of the minor child—finding that
most of the factors favored the former wife; and made equally
detailed findings on the factors found in section 61.08(a)-(j),
Florida Statutes, concerning an award of alimony. The trial court
found that the former wife had presented “credible uncontested
expert testimony” as to her lack of employability and as to the
former husband’s “earning capacity of $130,000.” Ultimately, the
court collated all of the values in its equitable distribution scheme
and gave the former husband $787,956 in assets—which included
a 45% share of the former wife’s military pension—and, to the
former wife, $783,883 in assets. Accordingly, it ordered the former
husband to make an equalization payment of $4073 to the former
wife.

     Notwithstanding its division of assets, the trial court went on
to fashion a lump sum alimony award to the former wife by giving
her the former husband’s 45% share of her military retirement

                                 5
benefits and repurposing it as lump sum alimony. In doing so, the
trial court reasoned:

    After the determination of the equitable distribution, the
    Court has determined that a judgment for alimony shall
    be made to the Wife. The Wife is entitled to permanent
    alimony from the husband. No other form of alimony is
    appropriate. After the Court takes 45% of the Wife’s
    pension, the Court finds that the Wife has actual need for
    support of $7,294 per month. After the court credits the
    Husband for 45% if [sic] the pension, the court finds the
    Husband has the ability to pay support of $3,066 per
    month based upon an imputation of income and pursuant
    to the assets distributed to the Husband. Therefore, the
    Husband’s ability to pay only cures a portion of the Wife’s
    need. As permitted and specifically contemplated by
    Florida Statutes 61.075(10), the court finds that to do
    equity between the parties, the Wife should retain the
    Husband’s 45% share of the military retirement as and
    for permanent alimony in a lump sum. The Court has
    significant concerns about the enforceability of its
    alimony award. Such lump sum will facilitate and
    effectuate the equitable provision of such.

     As for child support, the trial court ordered that “[c]hild
support shall be paid by the Husband to the Wife pursuant to the
Child Support Guidelines based upon the imputation of income to
the Husband.” However, no amount of support was stated. No
provision was made for retroactive child support, as prayed for by
the former wife in her counter-petition.

     Lastly, the trial court succinctly ordered that “[e]ach party
shall be responsible for their own attorney fees and costs.”

                                III

     On the main appeal, we address only the former husband’s
argument that the trial court abused its discretion in awarding to
the former wife the former husband’s marital share of her military
retirement as lump sum alimony.



                                6
     While section 61.075(1), Florida Statutes, instructs the trial
court to “begin with the premise that the distribution [of marital
assets] should be equal,” it goes on to qualify that goal by
permitting an “unequal distribution” based on the relevant factors
enumerated in paragraphs (a)-(j) of the statute, most relevant here
being the one found in paragraph (j): “Any other factors necessary
to do equity and justice between the parties.” (Emphasis added.)
In like manner, section 61.075(10), Florida Statutes, expressly
states that the trial court, in order “[t]o do equity between the
parties” and “in lieu of or to supplement, facilitate, or effectuate
the equitable division of marital assets and liabilities, [may] order
a monetary payment in a lump sum . . . .”

     We review an award of lump sum alimony for an abuse of
discretion. Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla.
1980). “Lump sum alimony for support requires a showing of need
on the part of the recipient spouse, an ability to pay on the part of
the payor spouse, and a justification for the payment.” Sellers v.
Sellers, 68 So. 3d 348, 351 (Fla. 1st DCA 2011) (citing Jackson v.
Jackson, 507 So. 2d 1160, 1163 (Fla. 1st DCA 1987)).

    A “justification” is a “‘good reason’ or useful purpose
    which can sustain [an] award.” Rosen v. Rosen, 386 So. 2d
    1268, 1271 (Fla. 3d DCA 1980) (finding that “the subject
    matter of the award provide[d] its own justification”
    where the trial court awarded the wife the marital home
    as lump sum alimony and the parties had been living
    there for several years with their children); see Rosario v.
    Rosario, 945 So. 2d 629, 632 (Fla. 4th DCA 2006) (“[T]he
    trial court must find some special necessity for lump-sum
    payment of alimony” and, if support is needed, there must
    exist unusual circumstances which would require a non-
    modifiable award of support.”).

Id. The trial court must make findings justifying such an award
either on the record or in the final order. Id. A pension may be
considered as a source of payment of permanent periodic alimony
instead of being equitably divided. Diffenderfer v. Diffenderfer, 491
So. 2d 265, 267 (Fla. 1986).

     Here, the former husband claims the trial court failed to make
sufficient findings of both a “special necessity” and “unusual
                                 7
circumstances” in awarding the wife his marital share of her
military pension as lump sum alimony. He relies primarily on the
decisions in Rosario v. Rosario, 945 So. 2d 629 (Fla. 4th DCA 2006),
Porzio v. Porzio, 760 So. 2d 1075 (Fla. 5th DCA 2000), and Glazner
v. Glazner, 693 So. 2d 650 (Fla. 5th DCA 1997), and cites to Jessee
v. Jessee, 839 So. 2d 842 (Fla. 3d DCA 2003), for its holding that
the finding of “special circumstances” must be something above
and beyond the justifications for an award of permanent periodic
alimony. Id. at 843. We find each of those decisions to be
distinguishable.

     In Rosario, the Fourth District reversed the award of the
marital home to the wife as lump sum alimony not only because
the trial court made no special findings as to why it was
appropriate, other than to find that the fourteen-year marriage fell
into the “gray area” for purposes of determining alimony, but also
because the end result was that the lump sum award reduced the
husband’s net worth from $120,000 to $15,000, thereby
“endangering his economic status.” 945 So. 2d at 632. Here, the
trial court made numerous “special findings” and did not
significantly erode the former husband’s equitable award or his
economic status.

     In Porzio, the award of lump sum alimony was reversed
because the trial court failed to include any “special” findings to
justify the award. In addition, the Fifth District’s review was
hampered by the lack of a trial transcript. 760 So. 2d at 1077.
Again, in the present case, the court made significant findings and
the record contained the complete hearing transcript. Our review
of the instant judgment, therefore, was not hindered.

     In Glazner, the award of lump sum alimony was reversed
because the Fifth District found the wife was not entitled to either
permanent periodic or rehabilitative alimony, and the award did
not serve to equitably distribute a marital asset. 760 So. 2d at 652.
No such conclusions can be made on the basis of the instant record
in the face of evidence establishing that the former wife has an
80% disability rating and is limited in her ability to work.

     Lastly, in Jessee, the Third District reversed the award to the
wife of the marital home. It said, “The sole justification given for
the award of the lump sum alimony was ‘the Husband’s intentional
                                 8
attempt to avoid financial obligations by intentionally putting
himself in a position to be terminated.’” 839 So. 2d at 843. But the
Third District found that that particular fact had already been
“taken into consideration in imputing income to the former
husband and in awarding permanent periodic alimony to the
former wife.” Id. Accordingly, it ruled that “[i]t cannot additionally
support the award of lump sum alimony . . . .” Id. We conclude
there was no redundancy here in the trial court’s findings of facts.

     Rather, we are firmly of the view that the instant case
presented its own unique equitable challenges to the trial court’s
exercise of its discretion. Therefore, we do not feel compelled by the
above-cited decisions to apply their logic as authority for reversal.
Here, the trial court did impute income to the husband, which, as
in Jessee, reflected the court’s conclusion that the former husband
was intentionally avoiding employment. But, the trial court also
found that the former husband’s dissipation of the parties’ assets
and his withholding of the rental income from the former wife—as
well as his threat that he would rather kill the former wife than
support her—underscored the court’s “significant concerns about
the enforceability of its alimony award.” Those findings were
sufficient to show both a “special necessity” and “unusual
circumstances” to support awarding the former wife the husband’s
marital share of her military pension as lump sum alimony.
Furthermore, the former wife was left with significant property
expenses as a result of the final judgment.

     This case exemplifies an instance when the trial court rightly
concluded that “equal” would not be equitable, and it commendably
performed its equitable functions while not abandoning its legal
responsibilities under chapter 61. 2 Based on these considerations,
we hold the trial court did not abuse its discretion in ordering that
the wife retain the husband’s 45% interest in her military pension
as permanent lump sum alimony. See Goodman v. Goodman, 666
So. 2d 262, 263 (Fla. 4th DCA 1996) (considering the disabled


    2  Cf. Horne v. Horne, 711 So. 2d 1310, 1313 (Fla. 1st DCA
1998) (Wolf, J., dissenting) (observing that neither the language of
chapter 61 nor the dictates of our supreme court mandate the
distribution of assets “be ‘equal’ rather than ‘equitable’”).

                                  9
husband’s early retirement pension as a source of payment of
permanent periodic alimony, rather than subject to equitable
division, and awarding the pension to the husband as lump-sum
alimony, was not an abuse of discretion on the trial court’s part;
the wife was relieved of the obligation of supporting the former
husband from long-term marriage).

                                  IV

     We turn now to the points raised by the former wife in her
cross-appeal of the final judgment. As her first point, the former
wife argues that the trial court, in awarding child support, erred
as a matter of law in failing to set a monthly support amount. The
former husband correctly concedes error on this point, as the
award is mandatory. Accordingly, on remand, the trial court is
ordered to calculate the amount of child support according to the
child support guidelines as set forth in section 61.30, Florida
Statutes.

     In her second point on cross-appeal, the former wife claims the
trial court abused its discretion in failing to award retroactive child
support pursuant to section 61.30(17), Florida Statutes. Again, the
former husband appropriately concedes error. Although the
parties dispute the date from which the retroactive support should
begin—the former wife claims it should start from the date of
separation in June 2015, while the former husband argues the
correct date is November 9, 2015, the date of filing of the petition
for dissolution of marriage—it has been held that “[a] trial court
abuses its discretion when it fails to award retroactive child
support from the date of the filing of a petition for dissolution of
marriage where there is a need for child support and an ability to
pay.” Leventhal v. Leventhal, 885 So. 2d 919, 920 (Fla. 3d DCA
2004). Accordingly, on remand the trial court is directed to award
retroactive child support from the date of filing.

     The last point we consider is the former wife’s fourth point on
cross-appeal, in which she asserts the trial court erred in denying
her request for the former husband to pay her attorney’s fees.
Without making any findings as to the former wife’s need for fees
and the former husband’s ability to pay them, the trial court ruled
only that both parties were responsible for their own attorney’s

                                  10
fees. 3 In simply denying fees without further explanation, the trial
court erred. Section 61.16(1), Florida Statutes, states in pertinent
part that the trial 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 . . . .” But here, the trial
court’s ruling leaves us guessing as to whether it followed the
statute, and, thus, denies us the ability to review the correctness
of its decision. In Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), the
Florida Supreme Court found “that section 61.16 governs the
standard to be applied in determining an award of attorney’s fees
in dissolution of marriage, support, and child custody cases.” Id. at
701. To that end, it determined that under the “scheme” of section
61.16,

    the financial resources of the parties are the primary
    factor to be considered. However, other relevant
    circumstances to be considered include factors such as
    the scope and history of the litigation; the duration of the
    litigation; the merits of the respective positions; whether
    the litigation is brought or maintained primarily to
    harass (or whether a defense is raised mainly to frustrate
    or stall); and the existence and course of prior or pending
    litigation.

Id. at 700. Inherent in weighing these equitable factors is the
necessity for the trial court to make express findings. Nassirou v.
Borba, 236 So. 3d 1180, 1181-82 (Fla. 1st DCA 2018) (citing
Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002)); see
also Powers v. Powers, 193 So. 3d 1047, 1048 (Fla. 2d DCA 2016)
(“A circuit court cannot deny attorneys’ fees and costs under
section 61.16 without making any findings as to the parties’
relative financial needs and abilities.”) Accordingly, we reverse
this point and remand for the trial court to reconsider the former
wife’s motion for attorney’s fees under the guidance of Rosen, and
to make appropriate findings before making its ruling.



    3  This point, as were all her points, was preserved for appeal
by virtue of the same arguments having been raised in the former
wife’s motion for rehearing.

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                                V

    For all of the reasons expressed, the Final Judgment of
Dissolution of Marriage is affirmed in part, reversed, in part, and
remanded for further proceedings consistent with this opinion.

     AFFIRMED, in part, REVERSED, in part, and REMANDED with
instructions.

WOLF and WINOKUR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.

William S. Graessle and Jonathan Graessle of William S. Graessle,
P.A., Jacksonville, for Appellee.




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