NOT FINAL UNTIL TIME EXPI RES 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 c ase to the trial court to make the necessary findings that would allow appellate review o f 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 parti al final judgment of- 2 - alimony that reinstated the $1800 per month alimony award. Onc e again, the Former Husband challenges that award. A s he did before, the Former Hu sband argues that the trial court failed to make sufficient findings about his abilit y to pay. Once again,

because the trial court failed to make sufficient findings to a fford 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-produci ng properties—along with the accompanying liabilities—to the Former Husband. These inco me-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 m ovie 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 t he 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 enterprise s and the proof presented at trial, we can appreciate that determining the amou nt 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 aff idavit." Nevertheless, the trial court reinstated the $1800 per month award of permanent p eriodic alimony in favor of the Former Wife. Notably, the trial court did not find that the Former Wife failed to- 3 - 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 reques ting . . . alimony has the burden of proof on that issue.' " (quoting Walter v. Walter, 44 2 So. 2d 257, 259 (Fla. 5th DCA 1983))); see also Gilliard v. Gilliard, 162 So. 3d 1147, 11 53 (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 reinstate d the $1800 per month alimony award, the trial court offered three justific ations in support of its finding that the Former Husband had the ability to pay the awar d. First, the trial court noted the well-known ability of "self-employed spouses, in cont rast 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 substan tial weight on a financial transaction affecting the ten-screen theater that the Former Hu sband undertook while the case was pending. While asserting that he lacked the abili ty to pay alimony, the Former Husband incurred a debt exceeding $500,000 with a monthl y debt service of approximately $8000 to upgrade the ten-screen theater with digi tal cinema projection equipment. 1 Finally, the trial court pointed to the Former Husband's appa rent ability to meet his substantial obligations to the Former Wife for tempora ry alimony and the payment of her health insurance pr emiums while the case was pen ding.

1 In response, the Former Husband observes that this liability is an obligation of the theater business. Furthermore, he was requir ed to raise both ticket and concession prices at the ten-screen theater to generate the additional revenue necessary to service the loan.- 4 - We appreciate the trial court's candor concerning the difficul ty 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 m andate. We agree that the three factors referenced by the trial court would support a n inference that the Former Husband's income is greater than the amount that he clai med in his most recent financial affidavit. Nevertheless, the three factors upon whic h the trial court relied in support of its reinstatement of the $1800 per month alimony awa rd do not constitute a satisfactory substitute for specific findings concerning the ac tual amount of the Former Husband's income that would justify the amount of the alimony a ward. See Child v. Child, 34 So. 3d 159, 161 (Fla. 3d DCA 2010); Ponce v. Ponce, 9 97 So. 2d 1120, 1122- 23 (Fla. 3d DCA 2008); Narcis v. Narcis, 707 So. 2d 936, 937 (F la. 3d DCA 1998). Accordingly, once again, we reverse and remand for the trial co urt to make the necessary findings of fact that will enable us to give an appro priate appellate review to the issue of the Former Husband's ability to pay the amount awa rded.

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ., Concur.