IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
DONALD R. HODGE,
Appellant,
v. Case No. 5D16-40
ANN B. HODGE,
Appellee.
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Opinion filed October 20, 2017
Appeal from the Circuit Court
for Brevard County,
Charles J. Roberts, Judge.
Julie Glocker Pierce, Indialantic, for
Appellant.
Elizabeth Siano Harris, of Widerman Malek,
PL, Melbourne, for Appellee.
LAMBERT, J.
The parties appear a second time before this court regarding the dissolution of
their long-term marriage. In Hodge v. Hodge, 129 So. 3d 441 (Fla. 5th DCA 2013), we
reversed the part of the amended final judgment of dissolution of marriage that awarded
Former Wife $2500 per month in permanent periodic alimony and one-half of the total
passive appreciation in certain real property (the “Old Dominion” property) that Former
Husband owned at the time of the marriage. We concluded that the trial court erred when
calculating the parties’ respective incomes for alimony purposes by failing to deduct the
ordinary and reasonable expenses from the monthly rental income generated by the Old
Dominion property and by not including any investment income to Former Wife
attributable to the assets awarded to her in the equitable distribution scheme. 129 So. 3d
at 444. We also determined that the court erred in its application of Kaaa v. Kaaa, 58 So.
3d 867, 869 (Fla. 2010), in calculating Former Husband’s nonmarital portion of the
appreciation of the Old Dominion property. Thus, we remanded the case back to the trial
court for further proceedings. Hodge, 129 So. 3d at 445.
The court on remand held an evidentiary hearing and thereafter rendered the final
judgment on appeal. The court, among other things, awarded Former Wife the same
$2500 per month in permanent periodic alimony as well as one-half of the passive
appreciation of the Old Dominion property. Former Husband appeals and, as we explain
below, we again reverse on these two issues. We affirm without further discussion the
remaining claims raised by Former Husband.
Former Husband argues that the trial court failed to properly apply the five-step
analysis in Kaaa in calculating his nonmarital portion of the passive appreciation of the
Old Dominion property. In Kaaa, the court held that the calculation of passive
appreciation of nonmarital property and its equitable distribution is a fact-specific inquiry
that requires a determination of: (1) the current fair market value of the home; (2) whether
there was passive appreciation in the home’s value; (3) whether the passive appreciation
is a marital asset; (4) the value of the passive appreciation that accrued during the
marriage, subject to equitable distribution; and (5) how the value is allocated. 58 So. 3d
at 872. Former Husband asserts, and Former Wife concedes, that a correct application
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of Kaaa to the Old Dominion property results in Former Wife’s interest in the property
being $73,645.1 We agree. On remand, the trial court shall enter an amended judgment
directing Former Husband to immediately pay Former Wife $73,645 for the equitable
distribution of her interest in the Old Dominion property.2
Former Husband also contends that the trial court erred in both awarding and
thereafter calculating permanent periodic alimony. Former Husband’s primary argument
is not that he lacks the ability to pay alimony or that permanent periodic alimony is
otherwise inappropriate,3 but rather, he argues that Former Wife failed to establish her
need for the alimony. See § 61.08(2), Fla. Stat. (2014) (“In determining whether to award
alimony or maintenance, the court shall first make a specific factual determination as to
whether either party has an actual need for alimony or maintenance and whether either
party has the ability to pay alimony or maintenance.”).
“The primary factors for a court to consider when awarding alimony are the
requesting spouse’s need and the other spouse’s ability to pay.” Berger v. Berger, 201
Former Husband’s counsel conceded at oral argument that there was a
1
mathematical error in his initial brief and that the value of Former Wife’s interest in the
Old Dominion property is $73,645.
2 At oral argument, Former Husband’s counsel represented that upon remand,
Former Husband would promptly pay the $73,645 to Former Wife for her interest in the
Old Dominion property. Case law supports the proposition that counsel’s representations
during oral argument are binding. See, e.g., Renfroe v. Renfroe, 326 So. 2d 211, 211
(Fla. 4th DCA 1976) (“On oral argument before the court, counsel for the respective
parties stipulated that such payments were to be made weekly. Accordingly[,] the final
judgment is modified to that effect.”). As such, Former Husband’s claim on appeal that
the trial court erred in requiring that he evenly split with Former Wife one-half of the net
rental income from the Old Dominion property has been rendered moot.
3Both parties are over seventy years old and retired, and they were married to
each other for thirty years.
3
So. 3d 819, 823 (Fla. 4th DCA 2016) (quoting Sherlock v. Sherlock, 199 So. 3d 1039,
1043 (Fla. 4th DCA 2016)). In awarding alimony, the trial court is required to consider
“[t]he financial resources of each party, including the nonmarital and the marital assets
and liabilities distributed to each.” § 61.08(2)(d), Fla. Stat. (2014). While a spouse is not
required to deplete his or her capital assets in order to maintain the standard of living
during the marriage, Beal v. Beal, 146 So. 3d 153, 155 (Fla. 5th DCA 2014), a court in its
computation of alimony should impute income that could reasonably be projected on a
former spouse’s liquid assets. Rosecan v. Springer, 985 So. 2d 607, 609 (Fla. 4th DCA
2008) (citing Greenberg v. Greenberg, 793 So. 2d 52, 55 (Fla. 4th DCA 2001)). Here, the
parties stipulated to a six percent return on their investment assets.
In awarding Former Wife $2500 per month alimony, on remand, the trial court
found that Former Husband’s monthly net income is $7624.08 and Former Wife’s is
$1586.24. Former Husband disputes both figures, arguing that his monthly net income,
including investment income, is $7103.62 and that Former Wife’s net income is far greater
than $1586.24 per month. In its final judgment, the court found that Former Wife’s
retirement investment assets will total $349,893.84 upon payment of the equitable
distribution from Former Husband as ordered. Applying the stipulated six percent return
on Former Wife’s investment assets computes to just under $1750 per month income to
Former Wife. Additionally, Former Wife receives slightly more than $1000 per month in
social security income. Former Wife’s financial affidavit admitted into evidence showed
her living expenses to be approximately $4000 per month.4 As it appears that the trial
4Former Husband also contends that Former Wife’s monthly expenses are much
less than $4000 because of mathematical errors that Former Husband states are
apparent in the financial affidavit.
4
court may have significantly understated Former Wife’s monthly income, and further,
because Former Wife’s investment assets will increase by $73,645 upon Former
Husband’s payment to her on remand for her interest in the Old Dominion property (and
Former Husband’s monthly income will increase by retaining all of the net rental income
from this property), we conclude that the trial court’s $2500 award needs to be revisited.
We therefore reverse the trial court’s findings with regard to the calculation of both parties’
respective incomes and remand for a determination of Former Wife’s need for permanent
periodic alimony and, if established, the amount.
AFFIRMED in part; REVERSED in part, and REMANDED.
ORFINGER and EISNAUGLE, JJ., concur.
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