In determining alimony in a divorce proceeding, a trial court is not required to equalize the financial position of the parties. In Mills v. Johnson, the Florida Court of Appeal stated: “Matthew Mills (Former Husband) appeals the final judgment of dissolution of marriage and order adopting the magistrate’s amended report. The Former Husband contends that the trial court failed to properly impute income to Tracey Johnson (Former Wife) when calculating the child support award, that there was not competent, substantial evidence of the Former Wife’s need for alimony and the Former Husband’s ability to pay the alimony award, and that the time-sharing schedule is not in the best interests of the minor children and is otherwise flawed because it does not include holiday time-sharing…
The magistrate failed to make said specific factual findings, instead stating without any support that the Former Husband has the ability to pay. Pursuant to the Former Husband’s financial affidavit and his gross income as determined by the magistrate, the Former Husband has a monthly deficit even without considering alimony or child support. Thus, even if the Former Wife established need, the trial court abused its discretion in accepting and adopting the magistrate’s recommended order because there is no competent, substantial evidence to support the magistrate’s determination that the Former Husband has the ability to pay. See Kearley v. Kearley, 745 So. 2d 987,988 (Fla. 2d DCA 1999) (“We conclude that the trial court abused its discretion in awarding the appellee $1400 per month in alimony….After deducting his average monthly expenses from his net income, including the $1400 alimony, appellant is left with a deficiency of $818.59 per month.”); see also McCann v, Crumblish-McCann, 21 So. 3d 170, 172 (Fla. 2d DCA 2009) (holding that the trial court abused its discretion in ordering temporary alimony that exceeded the husband’s ability to pay); Hotaling v. Hotaling, 962 So. 2d 1048,1051 pa. 2d DCA 2007) (same).
Additionally, the magistrate based the alimony award primarily on the fact that there is a disparity in the parties’ income.’ However,” [a] trial court in a divorce proceeding is not required to equalize the financial position of the parties.” Payne, 88 So. 3d at 1017 (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1204 (Fla. 1980)). Unfortunately the parties lived well beyond their means during the marriage and as a result incurred large debts. It is also clear “that both parties remain in a situation where their income cannot cover expenses.”
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