Threadgill v. Nishimura
222 So. 3d 633
| Fla. Dist. Ct. App. | 2017Background
- Parties divorced after 24-year marriage (divorce in 2012); Former Husband agreed to pay permanent alimony equal to one-third of his gross income and bonuses.
- Former Wife filed a 2013 motion for indirect civil contempt and enforcement, alleging underpayment of alimony in 2012 and 2013.
- Trial court found Former Husband owed $8,250 in unpaid alimony and that Former Wife was entitled to attorney’s fees; Husband’s rehearing motion was denied and he appealed.
- Husband was self-employed in 2012; his income calculation at trial used gross receipts without deducting ordinary and necessary business expenses.
- Trial court’s calculation credited Husband only $2,500 for 2012 payments despite finding he paid $4,000; court also included a $12,500 moving allowance in 2013 gross income despite finding it was a moving allowance rather than a bonus.
- Trial court found entitlement to attorney’s fees but did not set an amount; appellate court concluded that portion was nonfinal and dismissed that part of the appeal for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper income base for 2012 alimony calculation (self-employed) | Nishimura: use Husband’s reported receipts as income to determine underpayment | Threadgill: must deduct ordinary and necessary business expenses to compute business (net) income | Reversed: trial court erred by using gross receipts without subtracting ordinary and necessary business expenses (Smith; Cissel) |
| Credit for alimony payments made in 2012 | Nishimura: trial court credited Husband appropriate amount toward past due alimony | Threadgill: trial court’s order contradicted its own factual finding (trial found $4,000 paid but credited only $2,500) | Reversed: calculation inconsistent with court’s finding; credit must match factual finding (Boone; Dolfi) |
| Inclusion of $12,500 payment in 2013 gross income | Nishimura: include the $12,500 in Husband’s income for alimony calculation | Threadgill: payment was a moving allowance (not a bonus) and should not have been included | Reversed: trial court’s inclusion was inconsistent with its own finding that payment was a moving allowance |
| Award of attorney’s fees (entitlement and amount) | Nishimura: entitled to fees for bringing enforcement motion | Threadgill: appealed entitlement and amount | Dismissed in part for lack of jurisdiction: order only fixed entitlement, not amount, so nonfinal and not appealable (Alexopoulous; Mills; Chaiken) |
Key Cases Cited
- Wabeke v. Wabeke, 31 So.3d 793 (review of alimony award abuse-of-discretion standard)
- Smith v. Smith, 575 So.2d 228 (business income = gross receipts minus ordinary and necessary expenses)
- Cissel v. Cissel, 82 So.3d 891 (reversal where trial court failed to deduct undisputed business expenses)
- Boone v. Boone, 3 So.3d 403 (reversal where award inconsistent with court's findings)
- Dolfi v. Dolfi, 667 So.2d 409 (reversing alimony calculation inconsistent with findings)
- Alexopoulous v. Gordon Hargrove & James, P.A., 109 So.3d 248 (an award of entitlement to attorney’s fees without fixing amount is nonfinal)
- Mills v. Martinez, 909 So.2d 340 (attorney-fee award not final until amount set)
- Chaiken v. Suchman, 694 So.2d 115 (same)