Posted by Nydia Streets of Streets Law in Florida Alimony
When either party appeals a final judgment of divorce, can a party seek temporary alimony while an appeal is pending? If so, what standard should be applied to determine if alimony should be awarded under this circumstance? These questions were answered in the appellate case Reidy v. Reidy, 232 So.3d 1053 (Fla. 4th DCA 2018).
A final judgment of divorce was entered by the trial court which denied the former wife’s requests for alimony and for attorneys’ fees. In doing so, the trial court noted this was a short-term marriage and the former wife was to receive a six-figure equitable distribution. Also noted was the former wife’s conduct which “unnecessarily prolonged the litigation.”
The former wife appealed the final judgment and at the same time moved for temporary alimony pending appeal, as well as attorneys’ fees. Using a “need and ability to pay” standard, the trial court awarded the former wife attorneys’ fees, costs and alimony pending appeal. The former husband’s attempts to present evidence regarding the former wife’s vexatious litigation throughout the proceedings were rejected.
The former husband appealed. The appellate court cited Florida Rule of Appellate Procedure 9.600(c)(1) which states a lower tribunal retains jurisdiction to make awards necessary to protect the welfare and rights of any party pending appeal. Holding, “Where the trial court has rejected a claim for alimony after a full trial, an award of temporary alimony pending appeal is permitted only in narrow circumstances.” The appellate court further held, “Here, the circuit court improperly treated the issue as one of ‘need and ability to pay,’ the test to be applied at a pre-judgment temporary relief hearing. The awards of $5,150 as lump sum and $2,200 per month were authorized only if they were necessary to protect the welfare and rights of the former wife pending appeal.”
The case was remanded for further proceedings to determine former wife’s alimony claim under the correct standard and to consider whether the former husband was entitled to a credit on equitable distribution. Alimony can present a complicated scenario which is why you should consult with a Miami divorce lawyer to understand your rights and obligations in your Florida divorce case. Through a consultation, you will be able to go over your best case strategies.