NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
LARRY J. RUTAN, )
)
Appellant, )
)
v. ) Case No. 2D14-4456
)
VIRGINIA J. RUTAN, )
)
Appellee. )
)
Opinion filed September 11, 2015.
Appeal from the Circuit Court for Pinellas
County; Peter Ramsberger, Judge.
Matthew R. McLain of Brownstone, P.A.,
Winter Park, for Appellant.
Jane H. Grossman, St. Petersburg, for
Appellee.
WALLACE, Judge.
On a prior appeal by Larry J. Rutan (the Former Husband), this court
reversed a partial final judgment of alimony and remanded the case to the trial court to
make the necessary findings that would allow appellate review of the issue of the
Former Husband's ability to pay an award of permanent periodic alimony of $1800 per
month to Virginia J. Rutan (the Former Wife). Rutan v. Rutan, 142 So. 3d 1 (Fla. 2d
DCA 2014). On remand, the trial court entered an amended partial final judgment of
alimony that reinstated the $1800 per month alimony award. Once again, the Former
Husband challenges that award. As he did before, the Former Husband argues that the
trial court failed to make sufficient findings about his ability to pay. Once again,
because the trial court failed to make sufficient findings to afford meaningful appellate
review by this court, we reverse.
The pertinent facts were stated in this court's prior opinion, and we need
not detail them again here. It is sufficient to note that the trial court's equitable
distribution of the parties' assets assigned the income-producing properties—along with
the accompanying liabilities—to the Former Husband. These income-producing
properties included a triplex in Pinellas County, a residential rental property in Pasco
County, and two movie theaters located in Zephyrhills. One of the two movie theaters
featured ten screens; the other movie theater had two screens. The trial court awarded
the marital residence to the Former Wife and ordered the Former Husband to pay the
mortgage debt on that property.
As in the Former Husband's prior appeal, the problem here is the failure of
the trial court to make the necessary findings about the Former Husband's income. In
light of the nature of the Former Husband's business enterprises and the proof
presented at trial, we can appreciate that determining the amount of the Former
Husband's income would be a difficult task. Indeed, the trial court stated candidly on
remand that it "does not know what the Former Husband's actual income is nor is it
convinced that it is as stated on his most recent financial affidavit." Nevertheless, the
trial court reinstated the $1800 per month award of permanent periodic alimony in favor
of the Former Wife. Notably, the trial court did not find that the Former Wife failed to
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meet her burden of proving the Former Husband's ability to pay. See Esaw v. Esaw,
965 So. 2d 1261, 1266 (Fla. 2d DCA 2007) ("[A] 'litigant requesting . . . alimony has the
burden of proof on that issue.' " (quoting Walter v. Walter, 442 So. 2d 257, 259 (Fla. 5th
DCA 1983))); see also Gilliard v. Gilliard, 162 So. 3d 1147, 1153 (Fla. 5th DCA 2015)
("The burden to show his or her financial need and the spouse's ability to pay is on the
party requesting alimony.").
In the partial final judgment entered on remand that reinstated the $1800
per month alimony award, the trial court offered three justifications in support of its
finding that the Former Husband had the ability to pay the award. First, the trial court
noted the well-known ability of "self-employed spouses, in contrast to salaried
employees, . . . to control and regulate their income." Ugarte v. Ugarte, 608 So. 2d 838,
840 (Fla. 3d DCA 1992). Second, the trial court placed substantial weight on a financial
transaction affecting the ten-screen theater that the Former Husband undertook while
the case was pending. While asserting that he lacked the ability to pay alimony, the
Former Husband incurred a debt exceeding $500,000 with a monthly debt service of
approximately $8000 to upgrade the ten-screen theater with digital cinema projection
equipment.1 Finally, the trial court pointed to the Former Husband's apparent ability to
meet his substantial obligations to the Former Wife for temporary alimony and the
payment of her health insurance premiums while the case was pending.
1
In response, the Former Husband observes that this liability is an
obligation of the theater business. Furthermore, he was required to raise both ticket
and concession prices at the ten-screen theater to generate the additional revenue
necessary to service the loan.
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We appreciate the trial court's candor concerning the difficulty of
assessing the Former Husband's ability to pay alimony. We are confident that the trial
court made a conscientious effort to comply with this court's mandate. We agree that
the three factors referenced by the trial court would support an inference that the
Former Husband's income is greater than the amount that he claimed in his most recent
financial affidavit. Nevertheless, the three factors upon which the trial court relied in
support of its reinstatement of the $1800 per month alimony award do not constitute a
satisfactory substitute for specific findings concerning the actual amount of the Former
Husband's income that would justify the amount of the alimony award. See Child v.
Child, 34 So. 3d 159, 161 (Fla. 3d DCA 2010); Ponce v. Ponce, 997 So. 2d 1120, 1122-
23 (Fla. 3d DCA 2008); Narcis v. Narcis, 707 So. 2d 936, 937 (Fla. 3d DCA 1998).
Accordingly, once again, we reverse and remand for the trial court to make the
necessary findings of fact that will enable us to give an appropriate appellate review to
the issue of the Former Husband's ability to pay the amount awarded.
Reversed and remanded.
CASANUEVA and KHOUZAM, JJ., Concur.
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