          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                                 FOURTH DISTRICT

                               JAMES P. MEJIA,
                                  Appellant,

                                        v.

                                ROSA B. MEJIA,
                                   Appellee.

                                 No. 4D19-3847

                                 [April 29, 2020]

  Appeal of non-final order from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Nickolaus Hunter Davis, Judge; L.T.
Case No. FMCE18005173.

     James P. Mejia, Santiago, Dominican Republic, pro se.

  H.A. Rodriguez of The Law Office of H.A. Rodriguez, P.A., Fort
Lauderdale, for appellee.

MAY, J.

   The husband appeals a temporary support order. He argues the trial
court erred in finding it had subject matter jurisdiction and in determining
the amount of the wife’s need and his ability to pay. We agree with him
on the second issue. We reverse and remand for the trial court to conduct
further proceedings regarding spousal support.

   The parties married in the Dominican Republic (“DR”) in 1995 and had
three children. The husband is a pilot and has been based out of Miami
since 1999. The parties lived in Weston from 2001–2014. They moved to
the DR and leased their “homesteaded” Weston home.

   In 2017, the husband was arrested in the DR for alleged domestic
violence. The parties separated and the husband filed for divorce in the
DR. 1 In April 2018, the wife filed her dissolution petition in Broward
County. Months later, the DR court issued a custody and timesharing
order.

1   Alimony is not awarded in the DR even for long-term marriages.
   The husband moved to dismiss the Broward case for lack of
jurisdiction. The trial court denied the motion in a January 2019 order
that detailed the parties’ connections to both countries.

   Both parties had Florida drivers’ licenses, were registered to vote in
Florida, had a joint bank account in Florida, and the husband leased a car
and received his mail in Florida. While the trial court did not specifically
find the wife was a Florida resident for the six months prior to filing the
petition, it made numerous findings and concluded that the husband
treated Florida as his “chief seat” of his affairs and interests. 2 The trial
court reiterated that it had jurisdiction of the subject matter and the
parties when it subsequently confirmed a DR child custody order. No
appeal was taken from that order.

    The wife then moved for temporary spousal support. In the motion, the
wife alleged the husband was refusing to pay her bills, cancelled her health
insurance, and was dissipating assets. She alleged the husband earned
around $180,000 annually and had the ability to pay spousal support.
The wife alleged she had no income or funds. Her financial affidavit
reflected a monthly deficit of $11,714.02. The husband filed a financial
affidavit reflecting a monthly net income of $11,163.39 and $900 in DR
court-ordered child support.

   Following several days of hearings, the trial court determined the
husband was an intelligent, educated, and accomplished pilot earning over
$180,000 annually. He imputed a $2,000 monthly income to the wife.
Based on the evidence, the trial court ordered the husband to pay $7,800
a month in temporary support. It directed the husband to reinstate the
wife’s health insurance and ordered both parties not to transfer or
withdraw funds from the husband’s retirement accounts/pensions. The
husband now appeals, challenging the trial court’s subject matter
jurisdiction and the support award.

    Jurisdiction

   The husband argues the trial court lacked subject matter jurisdiction
over the case because neither party lived continuously in Florida for six
months prior to the wife filing the petition for dissolution. The wife
responds that while subject matter jurisdiction can be raised at any time,

2 The husband appealed that order. We treated the appeal as a petition for writ
of certiorari. When the husband failed to timely file the formal petition as
ordered, we dismissed the case and subsequently denied a motion to reinstate.


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that issue was decided in a prior trial court order that the husband
appealed. Even though that appeal was dismissed, she argues the trial
court did not revisit the jurisdictional issue in the present order.
Regardless, she argues the evidence supported the trial court’s finding that
the husband’s “chief seat” of affairs was in Florida.

    Section 61.021, Florida Statutes, requires one of the parties to reside
in the state for six months before filing a dissolution petition. “Residence”
as used in section 61.021 means “an actual presence in Florida coupled
with an intention at that time to make Florida the residence.” Jenkins v.
Jenkins, 556 So. 2d 441, 442 (Fla. 4th DCA 1990) (quoting Gillman v.
Gillman, 413 So. 2d 412, 413 (Fla. 4th DCA 1982)). Courts have
interpreted “actual presence” as not requiring presence during the entire
six-month time frame. See Jenkins v. Jenkins, 915 So. 2d 1248 (Fla. 4th
DCA 2005) (citing Jenkins, 556 So. 2d 441).

   Within its January 2019 order, the trial court found neither party was
credible on this point. It found both parties had a Florida driver’s license,
were registered to vote in Florida, have a joint bank account here, and their
Weston home is homesteaded with insurance and utility bills in their
name. During the jurisdictional hearing, the husband testified to being in
Florida every week, but denied that it was his home. The wife testified the
husband prevented her from returning to Florida from the DR where she
was tending to her sick father.

   This case is akin to our 2005 decision in Jenkins. There, the husband
spent most of the one-year period preceding the filing of his petition in
Tennessee caring for his sick brother and only a minimal portion of it in
Florida. Jenkins, 915 So. 2d at 1249. However, the marital home was in
Florida and homesteaded; the husband’s bank accounts were in Florida,
he had a Florida driver's license, and was registered to vote here. Id. Those
facts are virtually identical to the facts in this case. Like Jenkins, we affirm
on the jurisdictional issue. Id. at 1250.

   Need and Ability to Pay

  We review temporary support orders for an abuse of discretion.
Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Robbie v. Robbie,
591 So. 2d 1006, 1008 (Fla. 4th DCA 1991).

   If a trial court enters a temporary support order that “exceeds or nearly
exhausts a party’s income,” it has abused that discretion. Wilder v. Wilder,
42 So. 3d 961, 961 (Fla. 4th DCA 2010) (quoting Bolton v. Bolton, 898 So.
2d 1084, 1084 (Fla. 4th DCA 2005)). The wife’s amended motion asserted

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the husband earned about $180,00.00 annually and had the ability to pay
for her support. She alleged he dissipated assets, refused to pay her bills,
and cancelled her health insurance. She did not request a specific amount
of support within the motion, but her financial affidavit reflected a monthly
need of $11,714.00.

      •   The Husband’s Ability to Pay

   The husband argues the trial court erred in using his gross income to
calculate his ability to pay. Meldrum v. Bergamo-Meldrum, 281 So. 3d 504,
505 (Fla. 4th DCA 2019); Vega v. Vega, 877 So. 2d 882 (Fla. 4th DCA
2004). As a result, he is now ordered to pay more than 75% of his net
income to the wife. He points to his net monthly income of $11,163.00,
which should have been reduced by his monthly child support obligation.

   The wife responds the husband’s paystubs show he received between
$6,201.94 and $8,333.59 bi-monthly, or $148,000–$200,000 annually.
She suggests that he unilaterally reduced the parties’ available monthly
income by $2,400 when he terminated the lease on the Weston marital
home. But she fails to address the trial court’s use of the husband’s
“gross” instead of “net” income and its failure to reduce the husband’s
monthly income by his child support obligation.

   We agree with the husband that the court erred in using his gross
income and in failing to factor in his child support obligation to determine
his net income. We therefore reverse and remand for the trial court to
recalculate the husband’s ability to pay.

      •   The Wife’s Need

   The husband argues the trial court failed to consider the $2,000 in
income it imputed to her and an $87,500 inheritance in determining her
need. As to the inheritance, the testimony shows she has not received
anything from her father’s estate as of the date of the hearing, therefore
the court did not err in refusing to consider this. She does not address
the $2,000 in imputed income and we cannot discern whether the trial
court considered it when it arrived at the $7,800.00 award.

   On remand, the trial court shall use the husband’s net income in
calculating his ability to pay and deduct his child support obligation. It
should also account for the $2,000.00 income that it imputed to the wife.
We therefore reverse the temporary support order and remand the case to
the trial court for proceedings consistent with this opinion. Meldrum, 281
So. 3d 504.

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  Reversed and Remanded.

WARNER and GERBER, JJ., concur.

                         *        *       *

  Not final until disposition of timely filed motion for rehearing.




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