August 1, 2011

Available Income is the Proper Basis for an Alimony Award; A Marital Lifestyle That Exceeds the Parties’ Earnings is not a Proper Guide for Awarding Alimony

Cissel v. Cissel, 4D09-3029 & 4D10-1324
June 22, 2011

The Fourth District wrote to address an appeal of an alimony award and child support.  The court below found the former husband, appellant, to have a gross monthly income of $18,109.  The figure was based on his average earnings during the preceding fourteen months of trial.  The appellant argued that this error.  The Fourth District held that although it was acceptable to use this average, it was error to base any support from this figure in this case.  Citing §61.08(2)(i), Fla. Stat. (requiring consideration of all sources of income available to either party), the Fourth District found the trial court to have failed to deduct the husband’s undisputed business expenses.
The Fourth District also found error in the trial court’s award of alimony to former wife.  The trial court had only made findings as to the length of the marriage and the $20,000 per month standard of living that exceeded the parties’ incomes.  On appeal, the Fourth District again referred to §61.08(1), Fla. Stat. (requiring findings of facts relative to the factors enumerated in subsection (2) supporting an award of alimony).  Additionally, the court noted that the marital standard of living is not a useful guide in awarding alimony where the marital lifestyle costs more than the parties’ earnings.  Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005).  The Fourth District reversed and remanded.