FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D20-1018

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JOHN R. STEVENS,

Former Husband,

Appellant/Cross-Appellee,

v.

KIM TRAVERS,

Former Wife,

Appellee/Cross-Appellant.

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On appeal from the Circuit Court for Duval County.

Lance M. Day, Judge.

September 15, 2021

KELSEY, J.

This appeal is the continuation of nearly eight years of

litigation, and involves four money-related issues that Former

Husband raises, with three more that Former Wife raises on crossappeal. We have carefully considered all arguments raised, and 

find merit only in Former Husband’s argument that the financial 

obligations placed on him were contrary to the evidence of his 

ability to pay and failed to account properly for Former Wife’s 

readily-available funds. We otherwise affirm on all issues raised in 

the appeal and cross-appeal.
2

This couple lived together for eight years before marrying, and 

were married for fourteen years. Hours before their wedding, they 

signed a prenuptial agreement, which the trial court invalidated

(a ruling we affirm). They have two children, who attended private 

school. The older child attained majority during this litigation. 

Former Husband retired from the military and then worked 

as a sheriff’s deputy, through which he also got off-duty jobs. His 

monthly income varied somewhat throughout the proceedings 

below, but as a typical example included $1,754 in military 

retirement, $5,540 in salary, and $2,729 from off-duty work, 

totaling $10,023 gross monthly. Based on these typical amounts, 

at times during the litigation his net monthly income was about 

$5,870. Nevertheless, the trial court ordered Former Husband to 

pay $7,500 per month in undifferentiated alimony and child 

support—more than he brings home—retroactive to the date the 

petition for dissolution was filed.1 Because Former Husband’s net 

income was less than that, arrearages began accruing, and the 

trial court calculated those arrearages based on an obligation of 

$7,500 a month. Evidence from later periods reflects some modest 

increases in net income, against which Former Husband’s 

obligation was still disproportionately high.

Former Wife was and remains medically unable to work, so 

the trial court declined to impute income to her. However, during 

the marriage she befriended a wealthy older man, and helped take 

care of him and his financial affairs. Through him, she had access 

to considerable money for her personal use, with no evidence of any 

limit placed on her access to such funds. This friend paid her 

attorney’s fees during the litigation.

1 In part, the trial court arrived at this figure by including in 

Former Husband’s “annual” income $50,000, which reflected cash 

he had used to pay his attorney’s fees. The court later determined 

that these funds would be reconciled through independent 

proceedings, but failed to go back and re-calculate annual income 

without this amount, which left the monthly obligation even more 

inflated than it already was.
3

Former Wife’s wealthy friend died during the parties’ 

dissolution litigation. Former Wife was the sole named beneficiary 

of his will and of a $3 million trust for her, and trustee of his estate 

assets. The probate of his estate remains pending, but the $3 

million trust became Former Wife’s immediately upon her friend’s 

death, under trust documents requiring it to be distributed to her 

“outright and free of all trust.” The undisputed evidence showed

that Former Wife received and is using a very expensive home and 

several luxury cars in her position as trustee and beneficiary of her 

friend’s estate and trust. Among the trust assets is a rental 

property producing $1,850 per month, which she receives. She has 

ready access to significant trust account funds, and admitted that 

she has the right to draw a salary from the trust and has drawn 

from the trust for her needs. The evidence showed that she has 

been spending each month an amount greater than Former 

Husband makes.2

On these facts, we find that the trial court erred in calculating 

both Former Husband’s ability to pay and Former Wife’s need. The 

law is well settled that a trial court must determine and balance 

need and ability to pay. § 61.08(2), Fla. Stat. (2014) (requiring 

court to “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”); § 61.16(6), Fla. Stat. 

(requiring court to consider both parties’ relative financial 

resources in determining rights and obligations as to attorneys’

fees). The law requires the trial court to make factual findings 

supporting its ultimate award. See Abbott v. Abbott, 187 So. 3d 326, 

327–28 (Fla. 1st DCA 2016) (emphasizing statutory requirement 

of specific factual determinations as to need and ability to pay).

A trial court abuses its discretion in imposing financial 

obligations that “virtually exhaust[] the payor spouse’s income and 

2 The trial court correctly noted that Former Wife’s ultimate 

full inheritance from the estate, beyond the trust assets that 

became hers immediately upon her friend’s death, is not yet a 

factor in establishing her financial need. When the probate case 

ends, Former Husband can file any appropriate motion based on a 

substantial change of circumstances.
4

leave[] him with practically no money to support himself.” Galligar 

v. Galligar, 77 So. 3d 808, 811 (Fla. 1st DCA 2011). It is likewise

improper to disregard funds available to one spouse who simply 

prefers to try to get the money from the other. Sherlock v. Sherlock, 

199 So. 3d 1039, 1043 (Fla. 4th DCA 2016).3

Because the $7,500 obligation was never proper and then 

formed the basis of arrearage calculations, on remand the trial 

court must retroactively revise all calculations of Former 

Husband’s ability to pay as to all obligations imposed on him, 

including attorneys’ fees, if any. The trial court first must redetermine Former Husband’s monthly obligations in light of his 

actual ability to pay, based on accurate financial information for 

each period after the date of filing the dissolution action. The court 

must differentiate alimony and child support obligations (the 

latter in accordance with the statutory guidelines), and ensure 

that Former Husband is appropriately credited for amounts paid, 

including the dollar-for-dollar credit for private-school tuition and 

books. Any arrearages substantiated after these recalculations 

(and recalculation of Former Wife’s need as noted below) can then 

be determined and, if necessary, factored into future payment 

amounts to arrive at totals within Former Husband’s then-existing 

ability to pay.

On the other side of the equation, the trial court abused its 

discretion in disregarding the assets available to Former Wife in 

determining her need for the amounts she sought from Former 

Husband. While her assets apparently stand to increase 

significantly upon conclusion of probate of her friend’s estate, it 

remains true based on the record evidence that she had, and 

exercised (selectively) the right to use her friend’s assets and then 

the trust assets throughout the pertinent time for all of her needs 

and wants, including payment of attorneys’ fees. In light of this 

evidence, the trial court must recalculate Former Wife’s actual 

need after taking into account all funds available to her from her 

3 In addition, the trial court erred in imposing an 

undifferentiated obligation of combined alimony and child support. 

Erskine v. Erskine, 262 So. 3d 223, 225 (Fla. 1st DCA 2018) (noting 

such an undifferentiated award leaves a reviewing court unable to 

determine compliance with statutory support guidelines).
5

wealthy friend’s assets both during his lifetime and upon his 

death, and any other sources of funds.

AFFIRMED in part, REVERSED in part, and REMANDED for 

further proceedings consistent with this opinion.

MAKAR and WINOKUR, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Jessie L. Harrell of the Harrell Firm, Jacksonville, for 

Appellant/Cross-Appellee.

Lawrence C. Datz of Datz & Datz, P.A., Jacksonville, for 

Appellee/Cross-Appellant.