Duke v. Duke
211 So. 3d 1078
| Fla. Dist. Ct. App. | 2017Background
- John and Heather Duke divorced after 25 years of marriage; one minor child remained.
- Trial court awarded Heather 50% of John’s $1.2M tax-deferred retirement account, permanent periodic alimony, child support, attorney’s fees ($9,312.75), a reimbursable lump sum for alternate housing, and required John to maintain a $250,000 life insurance policy naming Heather irrevocable beneficiary.
- Final judgment established a parenting plan calling for shared parental responsibility, at least one-third of overnights for John, two weekends per month, and at least 10 nights per month, with 48 hours’ notice for liberal contact.
- No trial transcript or stipulated statement of facts was included in the appellate record.
- The Fifth DCA reviewed the final judgment and reversed or remanded portions where errors were apparent on the face of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Alimony — income imputation | Heather implicitly relied on her $9/hr job income and sought alimony without imputing retirement interest | John argued court failed to impute interest or other income from the awarded 50% retirement share to Heather | Reversed; remanded to recalculate alimony and impute interest from Heather’s share of the retirement account when determining her income |
| Attorney’s fees — findings | Heather requested fees and court awarded $9,312.75 as reasonable | John argued award lacked required specific findings (hourly rate, hours, adjustments) | Reversed as to amount; remanded for specific findings on hourly rate, hours, and reductions/enhancements; need and ability to pay affirmed (no transcript) |
| Life insurance — required findings | Heather sought security for support/obligation via life insurance assignment | John argued court failed to make findings on availability, cost, ability to pay, and special circumstances | Reversed; remanded for specific evidentiary findings regarding availability/cost, obligor’s ability to pay, and special circumstances |
| Parenting plan — statutory detail | Heather accepted shared parental responsibility language and the court’s timesharing terms | John argued plan was too vague and failed to meet §61.13(2)(b) requirements for specificity | Reversed; remanded for a legally sufficient parenting plan with statutorily required specificity |
Key Cases Cited
- Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979) (appellant must include trial transcript or proper substitute to challenge sufficiency of evidence on appeal)
- Niederman v. Niederman, 60 So.3d 544 (Fla. 4th DCA) (income from retirement accounts may be imputed when principal will not be invaded)
- Adelberg v. Adelberg, 142 So.3d 895 (Fla. 4th DCA) (retirement-account income considered in alimony calculations)
- Giovanini v. Giovanini, 89 So.3d 280 (Fla. 1st DCA) (trial court must make specific findings on hourly rate, hours, and reduction/enhancement factors for fee awards)
- Foster v. Foster, 83 So.3d 747 (Fla. 5th DCA) (life-insurance obligations require findings on availability, cost, obligor’s ability to pay, and special circumstances)
- Packo v. Packo, 120 So.3d 232 (Fla. 5th DCA) (reversal where final judgment lacked detailed findings supporting life-insurance requirement)
- Magdziak v. Sullivan, 185 So.3d 1292 (Fla. 5th DCA) (parenting plans that lack required specificity under §61.13(2)(b) are reversible even without a transcript)
- Winder v. Winder, 152 So.3d 836 (Fla. 1st DCA) (appellate review of property distribution and related orders for abuse of discretion)
AFFIRMED in part; REVERSED in part; REMANDED.