Robert Donald HUTTO, Appellant/Cross-Appellee,
v.
Holly Denise HUTTO, Appellee/Cross-Appellant.
District Court of Appeal of Florida, Second District.
*995 Jesse J. Bennett, Jr. of Hall & Bennett, Winter Haven, for Appellant/Cross-Appellee.
Mark A. Sessums of Frost, Tamayo, Sessums & Aranda, P.A., Bartow, for Appellee/Cross-Appellant.
VILLANTI, Judge.
Robert Donald Hutto appeals from the final judgment of dissolution of marriage. He argues that the alimony award to his former wife, Holly Denise Hutto, was excessive and contained a savings component in contravention of established law. Mrs. Hutto cross-appeals the denial of her request for attorney's fees. We affirm the alimony award, reverse the denial of fees, and remand for further proceedings.
The parties were married for approximately twenty-three years before the dissolution proceedings began. Mr. Hutto is an engineer who has worked primarily on overseas projects. When he is overseas, he receives his base salary plus additional compensation based on the location, and his employer provides food, housing, and transportation. Due to the parties' frequent moves, Mrs. Hutto did not hold a steady job during the marriage. Joint tax returns admitted into evidence showed $146,126 in income for 1997, $189,413 for 1998, and $154,536 for 1999. However, the most earned by Mrs. Hutto during these years was approximately $14,000. At the time of trial, the parties stipulated that Mr. Hutto's annual net base salary was approximately $85,200 while Mrs. Hutto's annual gross income was $36,000.
Early in the dissolution proceedings, Mrs. Hutto received a temporary alimony award of $2000 per month. With this award and her salary at the time of trial, Mrs. Hutto had about $518 left over each month. However, she also testified that she had lowered her standard of living and decreased her living expenses since the parties' separation. Between the parties' separation and the time of trial, Mrs. Hutto spent about $27,000 of the $35,000 she had in savings while Mr. Hutto saved about $22,000. After considering all the evidence presented on the issue, the trial court awarded Mrs. Hutto $1500 per *996 month in permanent alimony in the final judgment.
In this appeal, Mr. Hutto argues that the alimony award of $1500 was excessive. He complains about Mrs. Hutto's estimate of $300 per month for clothing and $290 per month for credit card bills, which he alleged was the outstanding balance on the cards rather than a recurring amount. However, Mr. Hutto estimated, inter alia, $200 per month for his clothing, $1000 per month for his vacations, and $700 per month for his entertainment. Moreover, he was able to save approximately $22,000 during the pendency of this proceeding while Mrs. Hutto was forced to nearly deplete her savings. Based on these facts, which are supported by substantial competent evidence in the record, we hold that the permanent alimony award is clearly not excessive.
Mr. Hutto also argues that the alimony award included an improper savings component. In Mallard v. Mallard,
In both Mallard and Tarkow v. Tarkow,
Mr. Hutto's argument on the savings issue relies exclusively on the trial court's statement at the final hearing concerning the parties' habit of investing. However, this argument places great weight where none is warranted. Although a trial court is free to verbally rule immediately following closing argument and there are many instances when this is appropriate and necessary, such as with time-sensitive visitation and custody issues, this did not occur here. If the trial court does not verbally rule at the hearing, the musings of the court on a matter expressly not included in the final judgment must be regarded as no more than dicta. See Shore Mariner Condo. Ass'n v. Antonious,
*997 Finding nothing in the final judgment to support Mr. Hutto's argument that the alimony award improperly included a savings component, we affirm on this issue.
On cross-appeal, Mrs. Hutto argues that the trial court erred in denying her motion for an award of attorney's fees. Under section 61.16, Florida Statutes (1999), one spouse's need and the other spouse's ability to pay are the primary factors to be considered in awarding attorney's fees in a dissolution case. See Rosen v. Rosen,
Based on the $1500 per month alimony award and without taking into consideration tax consequences, Mrs. Hutto's income will be approximately $54,000 per year, and Mr. Hutto's base income will be approximately $67,200 per year. While these figures standing alone are not greatly disparate, Mr. Hutto's base income does not account for the additional compensation and benefits that he receives while working overseas. For example, during his most recent assignment in Malaysia, Mr. Hutto received an extra $1300 per month in compensation, and housing, transportation, and food were also provided. While Mr. Hutto's total compensation was explored at trial, the record does not contain definitive numbers for anything other than base salary, in part because his extra compensation depends on the project location. However, the joint tax returns which were admitted into evidence reflect a substantially higher annual income than Mr. Hutto's base salary.
"Where there is a substantial disparity between the parties' income, it may be an abuse of discretion to grant [only] a partial attorneys' fee award." Lowman v. Lowman,
Affirmed in part, reversed in part, and remanded.
STRINGER and KELLY, JJ., Concur.
NOTES
Notes
[1] We note that Mr. Hutto stipulated in the trial court to the reasonableness of the amount of Mrs. Hutto's attorney's fees. Therefore, the only issue to be addressed on remand is the percentage of these stipulated fees for which Mr. Hutto should be responsible.