A Real-Life Appeal, Transcript, and Results - Ayo & Iken

A Real-Life Appeal, Transcript, and Results – Ayo & Iken

A successful appeal by our team member, Jason Coupal, Esquire

Transcript

Speaker 1:
Good morning, the District Court of Appeal of the state of Florida and in for the second district is now in session. The honorable Stevan T. Northcutt judge presiding. Those having business before this court draw near, give attention, and you will be heard. May God save the United States of America, the state of Florida, and this honorable court.

Judge Northcutt:
Good morning, everybody. Welcome to this session of the second DCA. If you represent the appellant, remember that you are entitled to preserve some of your 20 minutes for rebuttal, and if you’ll let me know when you come to our virtual podium how much you want, I’ll try to give you a [inaudible 00:00:46] sign when we get to that point. Okay. Excuse me. We’re ready to bring in our last case, [Samaniego 00:00:59] versus Samaniego.

Jason Coupal:
Good morning, and may it please the court, my name is Jason Scott Coupal from a law firm of Iowa. I represent the wife, Irene Samaniego, who is the appellant here today. Your Honor, it is the wife’s position that the court erred by summarily denying her permanent alimony, attorney’s fees, and her request for a life insurance to secure any alimony awarded. To go back, this was a case where the marriage at the time of separation had been approximately 22 years long. At the time of the trial, the marriage was about 23 years.

Jason Coupal:
Under 61.08, This is a long-term marriage, and according to the jurisprudence of this court, specifically the Schonberg case and its progeny, as well as the jurisprudence of the sister courts in this state, there is a presumption in a long-term marriage that permanent alimony may be appropriate. Accordingly, when there is a long-term marriage, the court is required to analyze the request for alimony by the standard set forth in 61.08 sub two, and there’s a long list of statutes. Specifically, what’s important-

Judge LaRose:
[inaudible 00:02:26] can ask to ask you a question? Let’s assume for the moment that both parties are underwater, and taking into account what the former husband’s employer testified about, remind me, what, if any, discussion there was about nominal alimony.

Jason Coupal:
Your Honor, I don’t recall that in the trial transcript if there was a discussion of nominal alimony. I will submit, Your Honor, that under this court’s jurisprudence, that is something that automatically be considered by the court if it finds that the wife would otherwise be entitled to permanent alimony, but that the husband was unable to pay. So, regardless of whether it was discussed, we would submit that the court was obligated to make that determination in this case.

Jason Coupal:
In looking at the final judgment in this case, it is our position that the court did not comply with the requirements of 61.08 sub two for a number of reasons. First of all, if you take a look at the final judgment, which is kind of unusual in its brevity given the testimony that was here, the court did not determine the needs and ability to pay according to the factors that must be considered. It seems that the court seized upon the party’s stated incomes in their financial affidavits. And then in paragraph 17 of the final judgment suggests, and we find this somewhat unusual, that the balance in the party’s checking accounts at the end of the month was somehow different. And because wife had more in her checking account, therefore that led to a conclusion, or a suggestion, that the wife had less need.

Jason Coupal:
Again, the one thing that is critical here is, and as the court I believe confirmed later, the court made no determination as to the wife’s need. It made a suggestion or an illusion that she might need approximately $1,333 a month in alimony, and suggested that there was evidence to the contrary. However, it did not make a specific finding. Now, based upon this very, very summary review of the evidence, the court concluded that the husband had no ability to pay alimony. As we’ve indicated before, the jurisprudence of this court suggests that even if the court found that the husband was unable to pay permanent alimony, which we dispute as the case, obviously, the court was still required to take the additional step of determining what the wife’s needs were, and if the court determined that the wife’s needs did exist, that the court was obligated to then award nominal alimony to guarantee that the wife could seek alimony later if the circumstances change.

Jason Coupal:
Paragraph 20 of the final judgment says that the court, according to its interpretation of this court’s decision in Mills vs. Johnson, had determined that it was immaterial whether the wife had any need for permanent alimony because the court had determined that the husband was unable to pay, and for that reason, it specifically held that it was not making a finding as to the wife’s needs. Clearly, we Submit, Your Honor, that first of all, the fact that it didn’t even bother to undertake the analysis that is required by this court was error.

Jason Coupal:
Second of all, this is a particularly, we think, egregious in the fact that there was, A, suggested there was testimony throughout, that the wife had needs, that her means were significantly reduced. It is clear from the testimony that the wife was largely a homemaker, and when she did work during the marriage, she made no more than $13 per hour. The husband was a professional who was making $34 an hour at the time of the trial and was making approximately, as the court calculated it, $85,000 per year. There was plenty of testimony of the situation of the marriage. the parties lived a good life. They went on vacations, et cetera, et cetera, which were certainly things the court is required to consider under 61.08 sub two.

Jason Coupal:
The court really did not do either. And we think that to the extent that even considered the wife’s needs at all, it considered a factor which we don’t believe was probate. Clearly, whatever the party’s balanced in their checking accounts at the end of the month could be affected by a number of factors, so the fact that at any given time wife had more in her checking account than the husband did, did not in any way suggest that the wife no longer had needs. We also point out that one of the amounts of money in the wife’s checking account was the money she received from equitable distribution, so therefore, it might’ve been artificially high for that reason. In any event, however, the error that the court committed here was not to even consider whether or not the wife had needs. [inaudible 00:08:12] the end, that in and of itself-

Judge Smith:
And Mr. Coupal, so you’re asking us to remand for the court to determine what her need was, or is there competent substantial evidence that we can determine that her need was there?

Jason Coupal:
Well, Your Honor, obviously, not to be presumptuous, but generally, I note that that is the relief that this court usually grants when there is an issue such as this. I do believe, however, there was competent substantial evidence in the record. The wife testified that her needs were approximately $1,610 per month in alimony [crosstalk 00:08:54].

Judge Smith:
But the court did not seem to find that evidence credible based on the judgment. Can’t we look at that judgment and determine that she did not find all of the former wife’s testimony to be credible?

Jason Coupal:
Well, that may appear to be so, but however, I think that it is clear that the basis that the court used for determining need, or for finding it less credible, I believe it was not because it found her testimony less credible, as much as it found the fact that there was more money in her checking account as to… that that was what made the testimony less credible. I also know the jurisprudence of this court and other courts is that a party is not required to dissipate all of their assets in order to stay the claim for alimony. I mean, judging by the language that the court used here, we believe that’s exactly what it was blaming the wife for not doing, which was… You’ve got too much money here in your checking account, and therefore, that means you have no need. And in light of [inaudible 00:10:10] it would just seem [crosstalk 00:10:13].

Judge Smith:
Was nominal alimony pled?

Jason Coupal:
Permanent alimony is pled. There is no specific plea for nominal alimony. However, I believe we pled a general statement for all forms of alimony. And second of all, the nominal alimony award would be related to the permanent alimony award in that-

Judge Northcutt:
The nominal alimony would be a permanent award, correct?

Jason Coupal:
It would be, Your Honor.

Judge Northcutt:
Subject to modification down the road.

Jason Coupal:
Yes, Your Honor, that’s correct.

Judge Northcutt:
Nominal alimony is a permanent alimony award.

Jason Coupal:
Sure. And of course, there may never be cause down the road for that to change, we don’t know. At the same time, I think it’s clear that Ms. Samaniego was required to at least have that as something to hold on to if she could [crosstalk 00:11:11].

Judge Northcutt:
No. No. I’ll tell you what. There are three things that jump out at me about this case that cause me some concern [inaudible 00:11:17] Mr. Baseman is jotting them down getting ready for his presentation. One is the judge’s determination about your client’s needs seem to be based on her current ability to put money in the bank, as opposed to how her current situation relates to the marital standard of living, number one. And I don’t see anything in this judgment that suggests that, even though the judge might’ve thought that your client’s description of their marital standard might’ve been overstated, there was nothing suggesting that the judge was actually finding that she didn’t need alimony in light of the marital standard of living. Number one.

Judge Northcutt:
And number two, [inaudible 00:12:06] say in the final judgment, at least I might’ve missed it, but how much the husband’s deficit per month was. I know it’s mentioned in the briefs. But she did say in the judgment that he took on all the marital debts as part of the equitable distribution. And to the extent, it seems to me that if those marital debt payments are contributing to his claimed deficit and that your client is denied alimony as a result, in fact, that she is contributing to that and is losing her equitable distribution by being denied alimony.

Judge Northcutt:
And third, if that deficit is indeed consists of payments on marital debts, ultimately that will go away, which I think supports your argument for at least getting nominal alimony. So, those are my three concerns about this case, in a nutshell.

Jason Coupal:
Thank you, Your Honor. And I believe that that is an apt… Those are very relevant and apt concerns. Now, one other thing-

Judge Northcutt:
[crosstalk 00:13:20] your client, and I think Judge Smith touched on this, your client did not testify to what she would need in order to obtain the marital standard of living. Correct? She testified [inaudible 00:13:35] at least what she thought she needed for her current standard of living.

Jason Coupal:
That is Correct, Your Honor.

Judge Northcutt:
So, we at least have that as a lower measurement.

Jason Coupal:
As a floor, Your Honor. I would also point out, Your Honor, that, and I believe this was set forward in the brief, another problems that I noticed on this was that the court took, when it made its determination, took the figures directly from the financial affidavit. And as we indicated in the brief, it appears that there were expenses that the husband claimed that were double counted. He was also putting in expenses for his collectible vehicle and insurance and things of that sort. So, really, his actual and appropriate expenses, we believe, were woefully overstated and thus creating the impression that he did not have the money to do this. But as Your Honor has indicated, the bottom line is that there are the court’s determination of the needs and the ability to pay, we believe, were not based upon the factors that the court needed to look at and, in fact, as you indicated, might have penalized the wife accordingly.

Jason Coupal:
But again, fact that the court did not even take the step of determining whether or not there was a need, I think that that is ultimately an error that renders this final judgment defective. Again, we are concerned here about the methodology the court used. Also, we have also argued that the court did not properly consider my client’s claim for fees under 61.16. As the court will note from the final judgment, the trial court mentioned the amount of fees she was claiming, made a comment to the effect that it believed that some of them were inappropriate because she was always calling her attorney and then simply denied fees entirely.

Jason Coupal:
Again, we would submit that under this court’s jurisprudence, that the trial court was required to undertake similar findings as it would when determining whether alimony was appropriate, obviously, the need and ability to pay, also other factors in there, and the court simply did not do that either. I believe, and again, I apologize to the court for speculating here, it would appear that the court took its conclusion that the husband had no ability to pay fees and moved that over and simply accepted that rather than doing the analysis that was required. Again, even if the court had took issue with a certain amount of the fees and found them to be excessive or inappropriate, it should have done something and at least evaluated what the need and ability to pay was regarding the remainder, which it did not. It simply denied that.

Jason Coupal:
Also, the court did deny the request for life insurance. Obviously, life insurance is appropriate if the court does award alimony, and obviously, we believe that when the court erred in not awarding alimony and, obviously, would then have erred in not awarding the life insurance. If the court would so indulge me, I would like to raise one issue that was brought up by the appellee in this case, and I’d like to make sure that it is considered. One of the things that is raised repeatedly in the appellee’s [crosstalk 00:17:24].

Judge Northcutt:
I will warn you that you’re into your… You didn’t mention, really, whether you wanted to save rebuttal time, and you’re down to five minutes, so use them as you please.

Jason Coupal:
In that case, Your Honor, I would respectfully request that reserve that time for rebuttal and I’ll address the issue there.

Judge Northcutt:
Okay.

Jason Coupal:
Thank you.

Judge Northcutt:
[inaudible 00:17:43].

Mark Baseman:
Thank you. My name is Mark Baseman. I represent Louis Samaniego. I believe what Mr. Coupal was going to address was going to be in preservation… I’m sorry? Oh, sorry.

Judge Northcutt:
Wasn’t me.

Mark Baseman:
Okay. I believe he was going to address preservation of error issues, and if he’s going to address that in his reply, that would be a problem to not talk about here. That does go to Judge LaRose and Judge Smith’s questions about nominal alimony. I agree with Mr. Coupal and I think with Judge Northcutt that nominal alimony doesn’t have to be pled. It is a form of permanent alimony. So, that issue, I don’t think, matters that much. However, it is a legal construct. It is something that is not in the statute. It’s something that judges have created to do equity. As a result, I believe that the failure to bring it up at trial, or on a motion for rehearing, is a waiver of the right to bring it up on appeal. If they felt that the court failed to consider nominal alimony in the ruling, that would be a legal ever appearing for the first time on the face of the judge [inaudible 00:19:04]

Judge Northcutt:
Well, you know, this court does not subscribe to the motion for rehearing theory about preserving appellate review. Correct?

Mark Baseman:
I know this court certainly indicated it’s stepping away from it and I [crosstalk 00:19:18].

Judge Northcutt:
In fact, we never stepped to it.

Mark Baseman:
That’s fair.

Judge Northcutt:
We had stepped [inaudible 00:19:23] away from it all these years.

Mark Baseman:
Well, in cases like this-

Judge Northcutt:
She pled for permanent alimony, argued for permanent alimony, the judge basically found, although the findings are pretty sketchy, that the husband can’t afford it certainly, in large part, because he picked up all of the marital debt. I’m just looking at his financial affidavit here and I don’t know how much of his mortgage payment was… forgive me for not knowing when the parties agreed that he would essentially buy her out of the house. Did he refinance? Is that how that happened? I mean, he’s claiming a mortgage payment that could well be he’s charging her, by denying her alimony, he’s charging her for buying her out of the house.

Mark Baseman:
I believe he was-

Judge Northcutt:
But there’s almost 1,000 bucks worth of monthly payments to creditors listed separately from that.

Mark Baseman:
Correct. And Your Honor, you questioned whether the trial judge found specifically what the husband’s deficit was. It didn’t use the word deficit, but it made an explicit finding that [crosstalk 00:20:38].

Judge Northcutt:
That he couldn’t afford to pay.

Mark Baseman:
I’m sorry?

Judge Northcutt:
That he said he took over all of the marital debt and also said he couldn’t afford to pay alimony.

Mark Baseman:
Right. So, what I was getting at was the court found his income was 5,500 a month and his needs were 6,900, so it found a 1,400 deficit. The payments to creditors in the financial affidavit are far below that, and some of that-

Judge Northcutt:
Well, it’s a $920 to other creditors, and then there’s a mortgage payment which may or may not include a refi. I don’t know. To take her out of 1,000, a little over 1,000. And then, she [inaudible 00:21:19] never got down to like all his other expenses. It concerns me that if the wife has put some money in the bank and the judge finds that she can afford to do that, she doesn’t need alimony, but the judge doesn’t have a problem with the husband’s claim of $920 a month for meals outside the home, as that affected his ability to… It’s perceived ability to pay.

Judge Northcutt:
It’s clear that if the wife put money in the bank, it’s in large part because she was living a substantially reduced standard of living because she only made $23,000 a year plus the 500 bucks a month. But certainly, the judge could examine 1,000 bucks, basically, in meals outside the home for the husband, plus 1,000 bucks and payments to creditors that are part of his equity distribution. And now you’re up at two grand, you’re over the $1,400 deficit. I mean, it doesn’t look like the judge did any real examination here other than to say she could put money in the bank so she doesn’t need alimony [inaudible 00:22:30] some problems.

Mark Baseman:
So, the question is how much of this work is the judge supposed to do without any credible, competent evidence?

Judge Northcutt:
There’s the paper that I’m looking at that she had.

Mark Baseman:
Right. But there was no evidence about what reasonable meals outside the home should be, and my understanding is that some of those are because he has to entertain clients and things like that.

Judge Smith:
Mr. Baseman? Mr. Baseman? Wasn’t their testimony… Well, let me start off with this. Going into that trial, the former husband was asking for reduced alimony than what he was paying. He was paying the 500 in temporary. Plus, I think there’s a cellular bill or something like that. And so, going into the hearing, I don’t think, from what I read from the trial transcript, that the former husband was saying zero. Right?

Mark Baseman:
No, I believe he was, and I believe [crosstalk 00:23:33].

Judge Smith:
Well, I think the transcript shows otherwise if you look at the actual argument. I think it was the opening when they go in. So, then, question is, well, as far as the temporary alimony that the former husband was paying, he was making the payments, and so this goes to his ability. He was making the payments. Yes, of course he had some credit card debt, but he was paying his credit card monthly, keeping everything current. And so, isn’t that substantial, competent evidence that he had the ability to pay what he had agreed to pay in temporary alimony? Isn’t that some evidence that the court can consider in the determination of his ability to pay?

Mark Baseman:
Well, the court considered it in determining that he didn’t have the ability to pay, and the court specifically found that, while he was paying for alimony-

Judge Smith:
Well, no, you’re not answering my question, though. My question is, can the court not consider, from the time that he agreed to the temporary alimony, and that he had been paying it all along and was current with his bills and financial situation, are you saying that the court can’t consider that at all?

Mark Baseman:
No, but what I’m saying is the court made a specific finding that the husband has incurred significant credit debt while paying the temporary alimony, so he wasn’t, according to the court’s findings-

Judge Smith:
Well, and so, okay, so let’s talk about some of that. He had an extra car. Right? A Corvette. He was paying that. He was financing that. He was also paying the insurance on that. I don’t see where that’s taken into consideration on some extra expenses that he had.

Mark Baseman:
And that’s part of the reason, in my brief, we concede… well, at least we give the hypothetical that even if those extra debts are taken off, his deficit still is $500 or so per month, so the deficit would remain. We also point out [crosstalk 00:25:41].

Judge Northcutt:
So, he couldn’t find that in is like $150 a month for vacations? He couldn’t find that in some of these other expenses that he claimed, while he is paying down the marital debts that he assumed that are going to go away when he gets them paid down.

Mark Baseman:
The issue is what was argued at trial, what competent evidence was brought up. He wasn’t even cross-examined on most of these issues. I think the trial judge… again, the standard of review is-

Judge Northcutt:
Well, I get that, but the judge seemed perfectly satisfied with just looking at the financial affidavits to make her findings in the judgment.

Mark Baseman:
I agree.

Judge Northcutt:
I’m looking at them to decide whether that supported her decision as a matter of legal correctness and… correct discretionary ruling.

Mark Baseman:
Respectfully. I think that’s literally substituting your judgment for the trial judge. I think that the test [crosstalk 00:26:44].

Judge Northcutt:
What it is, is it’s measuring the trial judge for an abuse of discretion.

Mark Baseman:
Agreed. But my understanding, and the way the court has articulated that, is if there is competent evidence to support it, it should not be reversed. And, respectfully, whether you think these are reasonable expenses for food or whatever, they are supported by the husband’s sworn testimony and affidavit, so I think there needs to be deference to the trial court’s findings on that particular issue.

Judge Northcutt:
So, how does he pay him? He’s incurring a $1,400 a month deficit, how is he paid this stuff?

Mark Baseman:
I can only go with the record would show that he was [crosstalk 00:27:26].

Judge Northcutt:
Using the judge’s logic-

Mark Baseman:
Well, the record was-

Judge Northcutt:
… the judge’s logic is if it was money leftover, she’s not entitled to alimony, and if there’s not money left over, you don’t have the ability to pay it. So, how does he cover this?

Mark Baseman:
The record shows that he was incurring debt to cover it. Now, that may mean he has to change his lifestyle going forward… I don’t have updates on those facts to present to the court.

Judge Northcutt:
Okay. So, he’s got [inaudible 00:27:55] credit card and his payment is $300 a month and that that’s where he’s [inaudible 00:28:03] his $1,400 a month deficit?

Mark Baseman:
That’s certainly part of it, yes. But again, even if you take out all of those payments to creditors… and some, I would argue, you wouldn’t take out. At least one payment for a vehicle is going to be a reasonable expense. But even if you take them all out, he’s still left with a substantial monthly deficit. I mean, one thing I think is important in this case is to maybe take a step back and look at what was going on during this marriage. This is not the typical case we have to struggle with where one party’s income used to support the household, and now we have to figure out how to support two. This was a situation where two parties’ incomes never fully supported their household. These parties’ parents contributed, the wife’s parents paid off their debts, paid for vacations, gave her a little savings account that she would have to use to pay expenses when they ran out of money.

Mark Baseman:
This is not a typical case where, as a married couple, you would expect an alimony obligation in the event of a divorce. The wife knew the entire time they were married that the husband’s income would never accommodate both of them in the event of a divorce, and looking for that now, it simply is not equitable. And this is one of the reasons that, even though I don’t think you have to plead nominal alimony, I do think you have to at least argue it at some point, but we can disagree on that. Nominal alimony is for cases where there was an ability to pay at one point. It doesn’t exist now, but it’s reasonably foreseeable in the future. And that simply is not the situation here. Here, there was actually competent evidence that there was no likelihood of an increase in income, but this is not a situation where the husband’s income was dramatically lowered because he took on a new type of career right before the [crosstalk 00:29:58].

Judge Northcutt:
I acknowledge you can describe different fact patterns in which nominal alimony was found to be appropriate, but I don’t see you describing on where it’s inappropriate, where his inability to pay is attributed to debts that he’s paying off.

Mark Baseman:
Right. You’re absolutely right that you have to infer that from the analysis in the case law. All of those cases do talk about it being a temporary dip in income. And in this situation, nominal alimony would exist solely in the event that the husband down the road receives a windfall for the wife to continue to benefit after the divorce. And respectfully-

Judge Northcutt:
After 23 years. After 23 years. So, long-term marriage [inaudible 00:30:43]. I can counsel correctly that the case law presumes that in a long-term marriage there’s a presumption of permanent alimony here.

Mark Baseman:
No doubt. That case law is still good. There’s a presumption of permanent alimony. Per the case I’ve cited, there’s no explicit requirement for the trial judge to say, “There is a presumption, here’s how it’s defeated.” I think the trial judge is finding [crosstalk 00:31:11].

Judge Northcutt:
And the way the judge, in her findings, overcame the presumption is to find because she has money in a checking account, she doesn’t need it, without doing any analysis of how she was ever going to approach anything close to the marital standard of living.

Mark Baseman:
I think, and that that’s Mr. Coupal’s interpretation of the trial judge’s statements, I don’t think [crosstalk 00:31:33].

Judge Northcutt:
Well, I’m just reading the judgment, the final judgment.

Mark Baseman:
Correct. I don’t think the judge is saying she should use this money or has this money. I think the judge is saying, “I don’t find her claim deficit credible because she claims to be 1600 or something in the hole every month, yet she’s saved money during this case.” I don’t think the judge was saying she’s expected to spend that money down. She’s saying, the fact that that money’s still there, if not growing, makes me suspicious of what she’s claiming her expenses to be. And again, you made a very astute point that the judge was considering-

Judge Northcutt:
All of my points are astute. I get that, Mr. Baseman.

Mark Baseman:
Well, I think I’m starting to realize that it might take flattery at this point.

Judge Northcutt:
Yeah. I’ll accept all you want to throw this away.

Mark Baseman:
So, your point is correct that the judge appeared to focus on her financial affidavit and not the standard of living enjoyed during the marriage, but the judge can only analyze what is given to her.

Judge Northcutt:
Well, I acknowledge, and I didn’t see anything in here that suggested that numbers were presented about the standard of living during the marriage and what the expenses were other than the husband’s income which, of course, multiples of what the wife ever earned. There was a description of the standard of living, which clearly is not possible on the money that the wife is earning in this case.

Mark Baseman:
But it also wasn’t possible on the money they both were earning. So, they-

Judge Northcutt:
I get that.

Mark Baseman:
.. have a nice home, they had vacations that were often tied with the husband’s employment. Sometimes the wife’s parents paid for their vacations. This was not a high standard of living. This was [crosstalk 00:33:28].

Judge Northcutt:
But it was certainly higher than what she’s going to be able to do on $23,000 a year.

Mark Baseman:
I would absolutely agree with that. That’s [crosstalk 00:33:38].

Judge Northcutt:
I mean, that’s just self-evident.

Mark Baseman:
That’s correct. Now, I think the judge believed her income maybe was higher than it was, but I completely agree with you on that from a common sense perspective. However, I think you have to look at the standard of review, and I think there is support for the trial judge’s findings in this case, whether you or 999 of you would have gone the other way on it, there is actual sworn evidence in the record supporting this. Yes, the wife’s standard of living may have been higher during the marriage, but she didn’t present any of that evidence. They didn’t argue that at hearing-

Judge Northcutt:
Oh, she did. She did present the evidence. She talked about what her life was like during the marriage.

Mark Baseman:
Right. [crosstalk 00:34:26].

Judge Northcutt:
[crosstalk 00:34:26] hard numbers about what that cost.

Mark Baseman:
You’re right. They did not argue that the financial affidavit was not reflective of that. They did not bring that up and rehearing. And by the way, they didn’t even brief that. They didn’t argue that in their briefs. That is not an issue they’ve raised. They are arguing that the financial affidavit is the accurate number that the court should have gone off of. So, respectfully, you’re right, but that was only [crosstalk 00:34:54].

Judge Northcutt:
[crosstalk 00:34:53] Mr. Baseman.

Mark Baseman:
Right. So-

Judge Northcutt:
Yeah, go ahead.

Mark Baseman:
Ultimately, I do… I know this isn’t always the strongest position to appear to be arguing from, but there is a reason this court differs to the trial judge. This is not supposed to be a second bite at the apple. You have to make your arguments to the trial judge. We are now three years or so into this divorce. It is not equitable to send this case back to the trial judge to make a finding of need, to potentially award, I suppose, nominal alimony when none of this was argued in the first place. And again, there is absolutely support for the trial judge’s findings and conclusions, whether you disagree with them or not, then

Judge Northcutt:
Or whether in the 99.99% of judges would disagree with them.

Mark Baseman:
Even if it’s 99.9999. If one reasonable judge could make this [crosstalk 00:35:57].

Judge Northcutt:
My concern is, is not so much that it was inaccurate to find that there was money in the wife’s checking account and so forth and so on. My concern is the legal ramification of that in the context of what is required in a family law case. What any reasonable judge standing back from this, what any reasonable judge… let’s say that after 22, 23 years of marriage, this woman who is making $23,000 max should not get any form of financial support from the husband who’s making 70,000 up. That’s kind of a shocking result.

Mark Baseman:
Right. I hate to belabor this point, but I don’t believe that the court was saying she had no need for alimony because she had money in her checking account. I think what the judge is saying-

Judge Northcutt:
That’s what it looks like to me.

Judge Smith:
Well, Mr. Baseman, I mean, the court didn’t find need. I mean, that’s [crosstalk 00:37:03].

Judge Northcutt:
The court said, “So, you’ve got money in your account. She doesn’t need alimony. I don’t have to determine the husband’s ability to pay because she doesn’t need it.”

Mark Baseman:
Well, what the court found was-

Judge Northcutt:
Or vice versa, I don’t have to determine her need because the husband doesn’t have the ability, even though his claim to that lack of ability, in large part, rested on payments for marital assets that he retained and marital debt that he retained. And I’m concerned that she’s basically paying off his asset with lack of alimony.

Mark Baseman:
Look, would I like to be here with more in depths findings, of course. I have to dance between the rain drops [crosstalk 00:37:42].

Judge Northcutt:
[crosstalk 00:37:42] I get it. I’ve been there.

Mark Baseman:
And what the court was saying in that paragraph is not she has no need because she has savings, what the court is saying is, she hasn’t convinced me that she has a need, which is her burden because she-

Judge Northcutt:
Is it her burden in light of the case law that says there is a presumption that she should receive permanent alimony? Does that make it her burden to prove it, or does that make the other side’s burden to overcome that presumption?

Mark Baseman:
My interpretation of the case saw is that there is a presumption that if alimony is awarded, it should be permanent alimony. It’s about the type, not that there is a presumption of alimony itself. The court said, “Your burden is to prove a need. You said you had a need, but when you did that, you said you had a 1,600 a month deficit. I’m seeing you save money and put money in retirement. I’m rejecting your testimony about your expenses and/or your income. Therefore, you haven’t carried your burden to show need. Therefore, I don’t need to address what type of alimony is [crosstalk 00:38:48].”

Judge Smith:
Well, Mr. Baseman, that’s not what the judgment said.

Mark Baseman:
What do you-

Judge Smith:
Well, I mean, you’re elaborating, and that’s certainly not what the judgment said.

Mark Baseman:
You’re right. I’m reading it with [inaudible 00:39:04].

Judge Smith:
And if it had, it would be a completely different argument here.

Mark Baseman:
Well, I’m reading it with deference to the trial judge because I think her findings and conclusions, there is a presumption of correctness, and we are supposed to look at what she did and determine, is there a way this was legally correct to do? And Mr. Coupal is trying to say, based on what’s in this, there is no possible way she did the right analysis. That’s not the correct analysis on appeal. We are supposed to presume she got it right and look for indisputable evidence that she got it wrong, and I just don’t think we have that here. To the extent there are simple mistakes here, absolutely, the statement referencing Mills that the court doesn’t have to make any finding of need which, again, I do think she did make a finding of need, but the statement she doesn’t is legally incorrect. But I don’t understand why you wouldn’t bring that to the court’s attention by a motion for rehearing and say, “Hey-

Judge Northcutt:
Well, whatever reason, we don’t require it, to preserved that argument.

Mark Baseman:
I completely understand that and I would suggest that we should require it in situations like this where [crosstalk 00:40:18] .

Judge Northcutt:
It’s like when I practiced, nobody likes PCA unless you represent the appellee. When I practiced law and said I hate PCAs, but in the words of William Blake, “Lord, grant me hell for release from heaven.” So, when you’re on the other side, you wouldn’t like that rule about the rehearing on this side. It just depends on who you’re arguing for. But I have [inaudible 00:40:45] Judge Smith a little bit, use up your time. So, it’s time to switch over to rebuttal.

Mark Baseman:
Thank you.

Judge Northcutt:
Thank you, Mr. Baseman. Well argued under fire. Okay.

Jason Coupal:
Thank you. I just have a few comments. Obviously, my colleague, Mr. Baseman was correct when he said that the issue I was going to address during my initial argument was the preservation of the error. I think that’s been discussed fairly extensively and I think that the court is aware of its own precedent on this issue. My colleague makes some pitch to the idea of abusive discretion that we have to consider the court right. I believe that the very least, the case law holds that the failure to analyze the claim of alimony in the way that it is supposed to be done under 61.08, and then… I think that in and of itself is an abuse of discretion. I mean, the court just clearly did not use the analytical method that the case law requires. She simply jumped along. She considered facts which we believe were not appropriate under the statute. And so, I think for that reason alone, I think that the court must reverse this.

Jason Coupal:
Obviously, there are going to be factual, determinations all this, but I respond to that colleague by… he suggests that the court made a finding that there was no need. If you take a look at the rather conditional language in the final judgment, it appears that she might have a need or whatever, but when you get down to brass tacks, when the court simply says, “I don’t need to make that determination because it’s not required by this particular case,” which as my colleague concedes was error. When it goes to that, I think that we have to believe the court for what it said. It did not make any findings. But again, I think that there’s a two-fold problem with this. Number one, that she clearly didn’t use the analytical method that was proper, and number two, the facts that she used to reach her conclusion were not consistent with what the court needed to consider to arrive at that even if it had used the correct analytical method.

Jason Coupal:
Regarding the issue of nominal alimony being awarded only if there is a likelihood that the potential obligor might experience some good fortunate and earn more, I don’t read the case law as requiring that. I think that it simply states that in a case where the wife is, or the party, has a need for permanent alimony, but the obligor does not have the ability to pay, the court should always at least leave the door open. And it’s regardless of whether or not there is any testimony or evidence to suggest that the obligor will likely experience some good fortune or a raise or things like that. I believe the testimony also suggested from his employer that it was possible he would be getting a raise, so I think that, clearly, if that was an issue, I think there was testimony to support it [inaudible 00:44:04] then I don’t think it’s required.

Jason Coupal:
Again, we submit that, and we believe, that the court’s concerns are very apt. Clearly, there is at least the intimation that my client is being made to account for his debts resulting from equitable distribution. As we pled in the briefs and there is clearly an indication that many of the expenses that he raised, and I thank Judge Northcutt for mentioning the issue with the meals outside the home, but also the vacation, the contributions he makes, the payments for the cars, I think that clearly the court should have taken a look at that and determined whether or not those were legitimate before simply accepting them as completely accurate, and then using that to deny my client alimony.

Jason Coupal:
Finally, to Judge Smith’s point earlier about whether there is any evidence to justify a particular award rather than simply remanding to reconsider the issue, I do believe your point, Judge Smith, is also well-taken. The fact is he agreed to pay $500 a month in alimony. He was able to pay that throughout the proceedings. He testified during the trial that he believed that his wife needed help to get back on her feet. And also, again, as Judge Smith indicated, there was never any argument, at least that I could see, that no alimony was appropriate or that the court should deny any assistance outright. So, clearly, I think, candidly, I think the parties were all surprised by how this case turned out at the end.

Jason Coupal:
In any event, for the reasons we’ve described both in our briefs and in this argument, we respectfully request that this court reverse the decision of the trial court. We would also suggest, again, that certainly there is a basis in the record for the court to conclude that at least that Ms. Samaniego should receive a certain amount. However, at the very least, this matter should be remanded for the court to properly analyze her need for alimony and the husband’s ability to pay. Additionally, that the court also reconsider her claims for attorney’s fees and life insurance based upon the alimony claim.

Judge Northcutt:
All right. That’s the end of the time. Thank you both very, very much. In order to leave, press the leave button in the lower right hand corner of the Zoom screen, and [inaudible 00:46:47] we will be adjourned. Thank you all.

Court Decision

 

 

 

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

IRENE SAMANIEGO,

Appellant,

v.

LOUIS SAMANIEGO,

Appellee.

No. 2D19-3920

August 11, 2021

Appeal from the Circuit Court for Pasco County; Alicia Polk, Judge.

Jason Scott Coupal of Ayo & Iken PLC, New Port Richey, for Appellant.

Danielle M. Glenn of Glenn and Phanco, P.A., Wesley Chapel; and Mark F. Baseman of Felix, Felix & Baseman, LLC, Tampa, for Appellee.

SMITH, Judge.

Irene Samaniego, the former wife, challenges the final judgment of dissolution of marriage. She challenges only the determinations related to her requests for alimony, life insurance, and attorney’s fees. We therefore affirm the unrelated portions of the final judgment without comment. Based on the lack of findings by the trial court regarding the former wife’s request for alimony, we reverse the portion of the final judgment denying alimony and the related determinations regarding the requests for life insurance and attorney’s fees and remand for further proceedings consistent with this opinion.

The parties were married in 1996, and the former wife petitioned for dissolution in 2018. Within that petition, she sought permanent alimony for a long-term marriage, under section 61.08(2), Florida Statutes (2017), as well as rehabilitative and bridge-the-gap alimony. She also requested that the former husband be required to maintain a life insurance policy naming her as beneficiary. She requested the award of attorney’s fees under section 61.16 based on her need and the former husband’s ability to pay.

In the final judgment of dissolution, the trial court denied the former wife’s requests for alimony, life insurance, and attorney’s fees. It found that the former wife had monthly expenses of $2,859.64 and that the former husband had monthly expenses of $6,904.65. The trial court noted that the former wife’s financial affidavits reflected a need for alimony but also noted that her bank accounts “told a different story” than the need reflected by her financial affidavits. But it made no conclusions regarding this perceived discrepancy. The trial court then found that the former wife had “managed” to save some money while the dissolution was pending, that the former husband had almost nothing in savings at the time of the hearing, and that the former husband had no ability to pay alimony. Based on its finding that the former husband had no ability to pay alimony, the trial court declined to make any determination regarding the former wife’s need, finding that it was not required to do so under Mills v. Johnson, 147 So. 3d 1023, 1024–25 (Fla. 2d DCA 2014).

Likewise, the trial court made no determination regarding whether the former wife had a need in regard to her request for attorney’s fees, finding only that she had more of a current ability to pay them than the former husband, and it denied her request for life insurance without any comment whatsoever. This was error.

Section 61.08(1) expressly requires 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.” (Emphasis added.) The trial court here was required to make “a specific factual determination as to whether” the former wife had “an actual need for alimony or maintenance” regardless of whether it granted or denied the alimony she sought and regardless of whether it also found that the former husband had an ability to pay. See § 61.08(2) (“In determining whether to award alimony or maintenance, the court shall 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.”); see also Engle v. Engle, 277 So. 3d 697, 698 (Fla. 2d DCA 2019).

Nothing in Mills, 147 So. 3d at 1024–25, can be read as obviating that express statutory requirement. Moreover, “when one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.” Schmidt v. Schmidt, 997 So. 2d 451, 454 (Fla. 2d DCA 2008); see also Nourse v. Nourse, 948 So. 2d 903, 904 (Fla. 2d DCA 2007) (finding that failure to award nominal alimony in order to preserve jurisdiction was an abuse of discretion where the historic incomes of the parties, the length of the marriage, and the future needs of the wife supported permanent periodic alimony). “[T]he trial court’s failure to make specific factual findings that are required by statute as set forth in chapter 61 is reversible error regardless of whether the error was first raised in the trial court by means of a motion for rehearing.” Engle, 277 So. 3d at 704.

Accordingly, “we reverse the alimony portion of the trial court’s final judgment and remand for the trial court to make the statutorily required findings.” Id. We recognize that the trial court’s findings on remand based on the statutorily required factors under section 61.08 may impact both the trial court’s consideration of the former wife’s requests for life insurance and attorney’s fees; therefore, we also reverse those related portions of the final judgment for reconsideration on remand.

Affirmed in part; reversed in part; remanded.

NORTHCUTT and LaROSE, JJ., Concur.

Opinion subject to revision prior to official publication.

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