Sаndra Goldstein, the wife, appeals an amended final judgment of dissolution of marriage. She contends that the trial court abused its discretion in denying her request for attorney’s fees аnd costs and failing to make findings as to her financial need and the husband’s ability to pay. The wife also argues that the trial court erred in attributing depleted joint marital funds solely to her, bеcause she used the funds for living expenses and there was no finding of misconduct. We agree with appellant on both issues and reverse.
The parties, Raymond and Sandra Gold-stein, wеre married in 1974 and have three grown children. In February 2009, the husband petitioned for dissolution of marriage. The wife is sixty years old, unemployed, disabled, and receives no retirement benеfits. She suffers from stenosis of the neck and receives social security disability income of $1,463.85 per month. The husband is sixty-one years old and is a retired school teacher. He reсeives a gross monthly pension benefit of $5,380.09. Although he does some odd jobs as a handyman, the trial court found that he does not earn any substantial income on a regular basis from suсh jobs.
The wife currently lives in the marital home, which has no equity and is “upside down.” The home is worth $62,500, but is encumbered by a mortgage of $119,700. The trial court specifically found that the wife “has had thе exclusive use and possession of the marital home since the husband moved out and she has been paying all of the carrying costs on the home without any assistance from the Husband.”
Most of the parties’ net worth consists of the husband’s retirement assets. The equitable distribution schedule lists the marital retirement accounts as being worth $174,212. Prior to the final hearing, the parties agreed to take an advance on equitable distribution by equally dividing about $164,000 worth of retirement assets. The husband has already received his $82,000 share; he used most of it to purchase a new home. The wife had not received her share by the time of trial.
The trial court held a two-day bench trial, for which the wife incurred costs for a court reporter and an accounting expert. Following trial, the court entered a Final Judgment of Dissolution and, later, based on the wife’s motion for rehearing, which was granted in part, entered an Amended Final Judgment of Dissolution.
In the Amended Final Judgment, the trial court considered the statutory factors set out in section 61.08, Florida Statutes, and awarded the wife $1,000 per month in permanent periodic alimony and six months of retroactive alimony. The court found that the parties enjoyed a middle class standard of living during the marriage but noted that “the parties have been spending much more than they were earning and have depleted most assets as a result.” The court further noted that the wife claimed a monthly need of $8,828.60 per month but found thаt “[t]here is clearly no ability to meet the wife’s total needs as listed in her financial affidavit.” After payment of the alimony award, the husband has a net income of $3,419 per month, which is $1,154 or about 50% more than the wife’s net income of $2,265 per month.
As to equitable distribution, the trial court noted that most of the values were agreed upon by the parties. However, the сourt attributed the entire value of a Citi CD in the sum of $11,302 to the wife on the Schedule of Couple’s Net Worth (“Schedule”) because the “evidence showed that those funds were actuаlly used by the Wife and the Husband did not receive any of the funds from that account.” It was undisputed at trial that the -wife cashed out the CD for living expenses that the hus
In the Amended Final Judgment, the trial court denied the wife’s request for attorney’s fees and costs, stating only as follows: “The Court has considered the litigation involved in this case as well as the equitable distribution provided fоr herein. Each party shall pay their own fees and costs.”
On appeal, the wife contends that the trial court abused its discretion in denying her request for attorney’s fees and сosts without analyzing the relevant factors under Rosen v. Rosen,
While the trial court erred in failing to make specific findings on need and ability to pay, we conclude that even if the trial сourt had made specific written findings, the denial of any award of fees and costs to the wife was an abuse of discretion. Notwithstanding the equal distribution of assets, which resulted in the wife rеceiving more liquid assets than the husband, the record reflects that there still exists a significant income disparity. The wife has a need for fees and costs, and the husband has a greatеr ability to pay at least a part of her fees and costs. The trial court thus abused its discretion in failing to award the wife at least a portion of her fees and costs. See Derrevere v. Derrevere,
The wife also argues on aрpeal that the trial court erred in attributing the entire $11,302 Citi CD to her, because the CD was a marital asset that was depleted to pay for her reasonable living expenses and there was no finding of misconduct. We have held that “it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceedings unless the depletion was the result of misconduct.” Tillman v. Altunay, 44 So.3d
In this case, the trial court made no such finding of misconduct, nor was there any evidence to support а finding that the depletion was as a result of the wife’s misconduct. In fact, the only evidence at trial was that the wife used those funds to pay bills for living expenses, and the trial court madе a specific finding that the wife had been paying “all of the carrying costs on the home without any assistance from the Husband” after the parties separated. Although the husband suggеsts that the wife’s spending was unreasonable, the record does not support this contention. The divorce was pending for over a year before the final hearing. Given the wife’s modest disability income, her $11,000 expenditure from the Citi CD for household expenses during the pendency of the divorce was not unreasonable. Moreover, even if some of the wife’s expenses were unreasonable, there was no finding of misconduct or intentional dissipation; as explained above, simple mismanagement of marital funds is insufficient. Accordingly, we reverse and remand with directions for the trial court to reduce the wife’s assets on the Schedule by one-half of the value of the Citi account, or $5,651, and thus increase the wife’s equalizing payment by that same amount.
Reversed and Remanded.
Notes
. We find no merit, however, in the wife’s argument that at least one-half of the costs of the CPA and court reporter hired by the wife should havе been designated as the husband's costs on the theory that these costs benefitted both parties equally. These costs were the wife's costs. While reimbursement of a portion of these costs is appropriate, our decision is grounded solely under section 61.16, Florida Statutes. We leave it to the trial court to determine in the first instance the appropriate portion of the costs that the husband should be required to pay.