NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

LISA LOCKARD MARTINEZ, ) ) Appellant, ) ) v. ) Case No. 2D15-5154 ) VICTOR MARTINEZ, ) ) Appellee. ) ___________________________________ ) Opinion filed April 5, 2017. Appeal from the Circuit Court for Hillsborough County; Tracy Sheehan, Judge. Karol Williams, Esq. of Karol K. Williams, P.A., Tampa, for Appellant. No appearance for Appellee.

SILBERMAN, Judge. Lisa Lockard Martinez, the Wife, seeks review of a final judgme nt of dissolution of marriage. The Wife challenges the trial court's decision to award her permanent periodic alimony in the amount of $600 per month. We reverse because the alimony award is insufficient to meet the Wife's basic needs ev en though Victor Martinez, the Husband, has the ability to pay.- 2 - At the time of filing, the parties had been married for thirty years and their children were no longer minors. The parties entered into a mar ital settlement agreement (MSA) which equitably distributed their limited asset s. The parties agreed to stop making payments on the marital home, list it for short sal e, and split any proceeds. The Wife received half of the Husband's military retirement, wh ich amounted to $1100 monthly. Both parties took on significant marital debt. The t rial court approved the MSA and incorporated it in the final judgment of dissolution. The Wife's request for alimony was decided after a trial at whi ch the Wife proceeded pro se. The Wife testified that she worked during th e marriage and took care of the parties' children while the Husband was stationed overse as with the military. The Wife worked as a bartender during the early years of the marria ge. She worked as a licensed real estate agent from at least 2006 to 2011 or 2012, and she earned between $40,000 and $150,000 annually with the highest salary being pai d during the real estate boom in 2006 and 2007. The Wife was in a motorcycle accident i n 2012, and she was not working at the time of trial. She had filed a claim for fe deral disability benefits, but the claim was denied. The Wife was in the process of resubmitt ing her claim which, if approved, would pay $886 per month. The Wife said she paid her livi ng expenses during these proceed ings using a legal settlement of $25,000, voluntary monthly payments of between $1000 and $1500 from the Husband, and an unspecified amount of additional money the Husband gave her upon request. She did not present a financial affidav it listing her monthly expenses and only testified r egarding two of those expenses: ( 1) $1200 in rent and (2)- 3 - $567 in medical insurance. She requested that the Husband pay $2000 in monthly alimony. The Husband testified that he was retired from the military and working for the government on a contract basis. He was also receiving a di sability check. The Husband has a net monthly income of $5654.78. The Husband's mo nthly expenses, including payments to creditors, are approximately $4635. 1 He said he had been paying the Wife $900 a month during these proceedings and ackno wledged he gave her extra money when she requested it. He asserted that the Wife w as physically capable of going back to work and had qu it her job just to "stick it to " him. In any event, he stated he could only afford to pay $500 in alimony. The court made a general finding that the Wife has a need for a limony and the Husband has the ability to pay . However, the court did not make a specific

calculation of the Wife's income. The court found that the Wif e was receiving the $1100 monthly retirement payment and noted that she will receive $886 a month if her disability claim is approved. The court also found that the Wi fe had made as much as $150,000 annually as a realtor and quit work for reasons not at tributed to her medical issues. However, the court did not indicate it was imputing in come to the Wife. It merely stated that the Wife "could probably get a good paying j ob and get back to a good financial situation fairly quickly, should she desire to d o so." The court described the parties' standard of living during the marriage as "a modest middle class lifestyle." As for the Wife's expenses, the court stated that the

1 This amount was calculated by considering the Husband's testimo ny on cross-examination admitting that he overstated $510 of his expe nses.- 4 - evidence presented by the Wife was "cryptic." The only specifi c expense the court recognized was $1200 for rent. The court concluded, "Despite t he lack of evidence as to Wife's specific need the Cour t does find that Wife has a nee d for Alimony, if only to meet her only stated need, that of an apartment." The court aw arded the Wife $600 in permanent periodic alimony without specifying how it calculated that amount. "[P]ermanent periodic alimony is intended to allow the requesti ng spouse 'to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spo use is not shortchanged.' " Zinovoy v. Zinovoy, 50 So. 3d 763, 766 (Fla. 2d DCA 2010) (quoting Griffin v. Griffin, 906 So. 2d 386, 388 (Fla. 2d DCA 2005)). T he trial court has broad discretion in awarding alimony, but the award must be commensur ate with one spouse's need and the other's ability to pay. Id. at 766-67. The award will only be affirmed if it is supported by competent, substant ial evidence. Id. at 766. We conclude that the $600 alimony award is not supported by com petent, substantial evidence. Indeed, it is insufficient to meet the W ife's basic needs even though the Husband has the ability to pay. As to the Wife's in come, the evidence was sufficient to establish only that the Wife was receiving $1100 monthly from the Husband's military retirement. Although the trial court noted that the Wife will receive $886 a month if her disability claim is approved, the court cou ld not rely on this income

because it was based on future speculation. See Searcey v. Sea rcey, 923 So. 2d 528, 530 (Fla. 2d DCA 2006); Alcantara v. Alcantara, 15 So. 3d 844, 846 (Fla. 3d DCA 2009).- 5 - If the court was intending to impute income to the Wife, it fai led to set forth an amount of income that was supported by the evidence. The co urt's finding that the Wife had earned as much as $150,000 as a realtor is not suffici ent to support imputation of this amount without evidence she could earn this amount at p resent. See Valentine v. Van Sickle, 42 So. 3d 267, 272-73 (Fla. 2d DCA 2010); Rabbat h v. Farid, 4 So. 3d 778, 784 (Fla. 1st DCA 2009). The testimony only established t hat the Wife earned this salary during the real estate boom in 2006 and 2007. Despite the fact that the Wife's evidence regarding her living expenses was "cryptic," she still present ed unrebutted testimony that sh e had monthly expenses of $1200 in rent and $567 in medical insurance. In addition, t he MSA establishes that the Wife has taken on significant marital debt. However, the t rial court recognized only the Wife's rent expense and awarded alimony "only to meet her o nly stated need, that of an apartment." When the evidence of the Wife's additional expe nses is considered, the $600 alimony award is clearly not commensurate with the Wife's basic needs. As for the Husband's ability to pay, the evidence established t hat he was earning $5654.78 monthly. Additionally, he had been able to pa y the Wife temporary alimony of at least $900 a month plus extra amounts here and th ere during the course of these proceedings. The $600 alimony award permitted the Hus band to pay all of the monthly expenses on his financial affidavit, which totaled $463 5, and still have a $1019 monthly surplus. Under the totality of the circumstances, the $600 alimony award shortchanged the Wife. The alimony award does not allow the Wi fe to maintain the parties' "modest middle class lifestyle" while it allows the Hu sband to do so. Because- 6 - the award does not provide for the Wife's needs as they were es tablished during the marriage despite the Husband's apparent ability to meet those n eeds, it constituted an abuse of discretion. See Melton v. Melton, 79 So. 3d 154, 156- 57 (Fla. 2d DCA 2012).

We therefore reverse and remand for the court to reconsider the alimony award. On remand, the court may take additional evidence to es tablish the parties' current financial circumstances. See Levy v. Levy, 900 So. 2d 737, 744-45 (Fla. 2d DCA 2005). The final judgment of dissolution is otherwise affi rmed. Affirmed in part, reversed in part, and remanded.

BLACK and ROTHSTEIN-YOUAKIM, JJ., Concur.