         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-3203
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JACK E. DE LA PIEDRA, Husband,

    Appellant,

    v.

KATHERINE M. DE LA PIEDRA,
Wife,

    Appellee.
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On appeal from the Circuit Court for Escambia County.
Jennie M. Kinsey, Judge.

                         April 25, 2018


PER CURIAM.

     Jack De La Piedra appeals a temporary order setting alimony
and child support, and requiring him to contribute a substantial
sum toward his wife Katherine M. De La Piedra’s attorneys’ fees.
He contends that these amounts were improperly calculated and
that he does not have the ability to pay. We reverse.

     The parties are in the midst of dissolution of marriage
proceedings in the trial court. Appellant-husband works as an
attorney and financially supported the family during the marriage,
while Appellee-wife devoted her time to homemaking and raising
the parties’ three children.
      The temporary order below requires Appellant to pay direct
alimony ($2,500/month), child support ($330.72/month), and other
in-kind alimony payments to cover Appellee’s mortgage, medical
and vehicle insurance, student loans, cell phone bills, and medical
bills. See Williams v. Williams, 10 So. 3d 651, 652 n.1 (Fla. 5th
DCA 2009) (treating mortgage payments on behalf of the other
spouse as in-kind alimony). In addition, the temporary order
requires Appellant to pay $10,500 towards Appellee’s attorney’s
fees.

     Appellant claims that the court abused its discretion by
awarding these amounts, which he lacks the ability to pay. While
temporary alimony awards are within the trial court’s sound
discretion, there must be competent substantial evidence showing
that the payee has a need and the payer has the ability to pay.
Buchanan v. Buchanan, 225 So. 3d 1002, 1003 (Fla. 1st DCA 2017);
§ 61.08(2), Fla. Stat. “If an award is in excess of a party’s ability to
pay, then it is not supported by competent, substantial evidence,
and a trial court abuses its discretion by ordering such an award.”
Buchanan, 225 So. 3d at 1003 (citing Hotaling v. Hotaling, 962 So.
2d 1048, 1051 (Fla. 2d DCA 2007)); see also § 61.071, Fla. Stat.
(allowing for reasonable sum alimony pendente lite where a well-
founded petition for alimony is filed). We must reverse the
temporary alimony award in this case, because the record does not
provide competent, substantial evidence that Appellant has the
ability to pay, nor dispel Appellant’s argument that the obligation
exceeds 90% of his net monthly income, leaving him only
“approximately $300.00 per month with which to support himself
and his children, two of whom he exercises half of the time sharing
with, and one who lives primarily with him.”

     We also find that the child support calculation amount
improperly accounted for the alimony award. In calculating income
for child support purposes, alimony must be included as income.
See § 61.30(2)(a)(9), Fla. Stat.; Christensen v. Christensen, 147 So.
3d 118, 119 (Fla. 1st DCA 2014). The spousal support amounts
should also have been deducted from Appellant’s income.
§ 61.30(3)(g), Fla. Stat. In this case, the worksheets used by the
court did not include alimony in Appellee’s income and did not
account for all of the in-kind alimony. On remand, the trial court


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should account for all of the alimony awarded when calculating the
child support amount.

     Finally, Appellant contends that the court abused its
discretion in requiring him to pay $10,500 toward Appellee’s
attorney’s fees because he does not have the ability to pay that
amount. The primary considerations for an award of attorney’s
fees under section 61.16, Florida Statutes, are the party’s need and
the other party’s ability to pay. See, e.g., Shawfrank v. Shawfrank,
97 So. 3d 934, 936 (Fla. 1st DCA 2012). The trial court must take
alimony and child support payments into account when
determining whether the party has the ability to pay. See Haywald
v. Fougere, 164 So. 3d 786, 787 (Fla. 1st DCA 2015). Accordingly,
when “the trial court has equalized incomes through its alimony
award, the trial court abuses its discretion in awarding attorney’s
fees.” Galligar v. Galligar, 77 So. 3d 808, 813 (Fla. 1st DCA 2011).
Because we are reversing the court’s alimony and child support
awards, the ultimate determination of whether Appellee is entitled
to help with her attorney’s fees will be intertwined with the court’s
remand determination. See Schroll v. Schroll, 227 So. 3d 232, 238
(Fla. 1st DCA 2017). Thus, the trial court should revisit the issue
of Appellee’s entitlement to attorney’s fees pursuant
to section 61.16(1), “based on the extent to which the parties’
respective financial circumstances are altered on remand.” Id.

    For these reasons, we reverse the temporary order and
remand for further proceedings consistent with this opinion.

    LEWIS, OSTERHAUS, and BILBREY, JJ., concur.


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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Travis R. Johnson of Meador Johnson & Bushnell, P.A., Pensacola,
for Appellant.

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John L. Myrick, Pensacola, for Appellee.




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