JAMES S. WINDER, Former Husband v. Dian A. Winder, Former Wife
152 So. 3d 836
| Fla. Dist. Ct. App. | 2014Background
- Husband and Wife married in 2000; dissolution filed in 2011; no minor children.
- Trial court found two marital retirement accounts totaling $23,187.07; Husband liquidated them for living expenses, temporary alimony, and health insurance premiums.
- Final judgment awarded Wife half of the liquidated amount ($11,593.54) but did not find misconduct; the distribution of other marital assets and non-marital/assets remained unspecified.
- Temporary support findings influenced alimony determinations; Wife had health issues and employment history described in the record.
- Court ordered $750 per month permanent alimony plus $400 monthly for Wife’s health insurance premiums, but the judgment lacked adequate factual findings under Florida law.
- On appeal, Husband challenges inclusion of dissipated funds in equitable distribution, the alimony award, and attorney’s fees awarded to Wife.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dissipated funds may be included in distribution | Winder argues dissipated funds should be excluded due to no misconduct. | Winder/Wife contends some dissipation may be attributed to the marriage. | Dissipated funds must be excluded; reverse and remand to exclude those assets. |
| Whether permanent alimony was properly awarded | Wife contends need and ability to pay supported permanent alimony under §61.08(2). | Husband asserts insufficient factual underpinnings and failures to consider alternatives under §61.08(8). | Permanent alimony award reversed for lack of adequate factual findings; remand for sufficient findings or alternative alimony. |
| Whether attorney’s fees award had proper factual support | Wife asserts need and reasonableness; Husband argues findings were insufficient. | Husband challenges ability to pay and calculation of fees, asserting insufficient support. | Attorney’s fees award reversed and remanded to allow proper findings based on changed financial resources. |
Key Cases Cited
- Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008) (dissipation requires misconduct evidence; exceptions apply for spending for own benefit)
- Walker v. Walker, 85 So.3d 553 (Fla. 1st DCA 2012) (specific finding of intentional misconduct is required to dissipate assets)
- Annas v. Annas, 29 So.3d 1209 (Fla. 1st DCA 2010) (withdrawals for reasonable living expenses not necessarily dissipation)
- Collinsworth v. Collinsworth, 624 So.2d 287 (Fla. 1st DCA 1993) (permanent alimony framework and implications on distribution decisions)
- Margaretten v. Margaretten, 101 So.3d 395 (Fla. 1st DCA 2012) (lack of explicit absence of other fair forms of alimony must be shown)
- Gergen v. Gergen, 48 So.3d 148 (Fla. 1st DCA 2010) (nominal alimony where need exists but current ability to pay is limited)
- Schmidt v. Schmidt, 997 So.2d 451 (Fla. 2d DCA 2008) (nominal alimony and reconsideration when financial circumstances change)
- Keeley v. Keeley, 899 So.2d 387 (Fla. 2d DCA 2005) (foundational considerations for alimony determinations)
- Norman v. Norman, 939 So.2d 240 (Fla. 1st DCA 2006) (fee award standards and need to articulate hourly rate and hours)