Third District Court of Appeal
State of Florida
Opinion filed July 22, 2026.
Not final until disposition of timely filed motion for rehearing.
No. 3D24-2039
Lower Tribunal No. 20-15919-FC-04
Vlaunir Jimenez Da Silva,
Appellant/Cross-Appellee,
vs.
Christine Marie Labriola,
Appellee/Cross-Appellant.
An Appeal from the Circuit Court for Miami-Dade County, Oscar Rodriguez-Fonts, Judge.
Law Office of David Scott, P.A., and David Scott (Weston), for appellant/cross-appellee.
Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellee/crossappellant.
Before SCALES, C.J., and FERNANDEZ and BOKOR, JJ.
FERNANDEZ, J.
1
Vlaunir Jimenez Da Silva (“the Husband”) appeals the trial court’s
Amended Final Judgment, as well as the court’s Order granting Christine
Marie Labriola’s (“the Wife”) Motion for Rehearing. The Wife cross-appeals
the same. On direct appeal, we reverse the Final Judgment and Order in part
as to the Wife’s entitlement to attorneys’ fees and costs because the trial
court made that determination without an evidentiary hearing. On crossappeal, we affirm in all respects.
FACTS AND PROCEDURAL BACKGROUND
The Wife was born on April 1, 1976. The parties married in 2012 and
had no children. They separated in 2017, at which time the Husband moved
out of the marital residence. Since then, the Husband has paid all expenses
associated with the marital home and the Wife’s living expenses. The Wife
alleges that, in August 2020, the Husband terminated her access to a credit
card he had been paying.
On October 13, 2020, the Husband filed a petition for dissolution of
marriage. The Wife filed an answer and verified counterpetition seeking
equitable distribution, alimony (including durational alimony), temporary
support, and attorney’s fees and costs.
In January 2021, the Wife moved for temporary attorney’s fees, suit
monies, and costs, alleging she had been unemployed since 2014 due to
2
health issues and that the Husband, as the primary wage earner, had the
ability to pay. The trial court granted the Wife temporary fees and costs.
In March 2022, the Wife’s counsel moved to withdraw, and new
counsel filed a verified motion to continue trial and for other relief. The Wife
refiled the motion twice more in 2022, citing financial needs to prepare for
the final hearing.
Later in 2022, in support of a motion to compel the Wife’s medical
evaluation, the Husband filed a memorandum of fact and law. He attached
social media photographs depicting the Wife on several vacations with family
or friends and dining out, which the Husband contended undermined the
Wife’s contention that she was bedridden.
Earlier, in her May 2021 deposition, the Wife testified she holds a
master’s degree in comparative sociology (anthropology focus) from Florida
International University (“FIU”) and a bachelor’s degree from FIU in
philosophy with a minor in English. She speaks Portuguese, English, and
Spanish. The Wife testified that her last full-time employment was in 2012 as
a program evaluation researcher with Children’s Services Council of
Broward, earning $50,000 annually. She resigned after the employer
changed its telecommuting policy, citing the forty-mile commute each way,
and testified that she did not resign due to a medical condition. The Wife
3
testified that she was diagnosed with Hashimoto’s thyroiditis in 2014 and
later learned of the Husband’s extramarital affair in late 2014, which she
alleged contributed to ongoing trauma-related symptoms, including posttraumatic stress disorder (“PTSD”), anxiety, depression, chronic pain,
chronic illnesses, mental illnesses, and migraines. She also testified that,
after consulting with counsel, she did not apply for Social Security Disability
Insurance (SSDI) or Supplemental Security Income (SSI) because she did
not meet the financial requirements.
The Wife further testified she volunteered with Miami-Dade Parks and
Recreation’s Conservation Corps in 2017 performing physical labor and
volunteered at Miami’s Seafood and Wine Week in 2018 or 2019. She
testified that she takes migraine medication before hair or medical
appointments, takes walks, and practices gentle yoga, and that she attended
yoga sessions outside the home before March 2020. She confirmed
photographs showing her at an art gallery event in Miami. The Wife testified
that she traveled to Los Angeles to visit family every two to three months
before the pandemic, and that she traveled to Brazil in 2017 and 2019,
stating she does so every two years to maintain her Brazilian residency.
At her second deposition in March 2022, the Wife testified that the
parties were married in 2012, they lived together for five years, and the
4
Husband moved out in 2017. The Wife further testified that her chronic
illnesses were a direct result of the “betrayal trauma” from the Husband’s
infidelity and that symptoms of her chronic illnesses made her disabled.
In July 2023, the Wife moved to continue the trial set for August 14,
2023, citing an amendment to section 61.08, Florida Statute (2023), Florida’s
alimony statue, that eliminated permanent periodic alimony and adultery as
a relevant issue. She contended that these changes required additional
discovery and an amended petition and that discovery and depositions
remained incomplete. After the Wife twice supplemented her motions for
continuance, the trial court denied the motions.
The final hearing took place over several days in August 2023. The
Wife testified and presented four experts: 1) Dr. Teshamae Monteith, a
licensed neurologist and headache specialist at the University of Miami
School of Medicine; 2) Dr. Matthew Simon, a psychologist; 3) Iris More, a
psychotherapist; and 4) Lynn Britt, a Certified Public Accountant (CPA). The
Husband testified and presented three witnesses: 1) Joseph Castro, a
forensic accountant; 2) Mario Garcia, a real estate appraiser; and 3) Tamar
Thomas, a vocational rehabilitation specialist.
On the second day of trial, the Husband called the Wife as a witness,
as well. The Wife testified that she worked early in the marriage as a program
5
evaluator for the Children’s Services Council of Broward County and did
ethnography consulting but became incapacitated by migraines in early
2014. The Wife testified her condition worsened over time, that she began
antidepressant medication, and that by 2018-2019, she spent about 75% of
her days in bed. She further testified she developed vestibular neuronitis in
2020 and later experienced “intractable” migraines. The Wife also testified
that after discovering her Husband’s infidelity in December 2014, she
became severely traumatized. Since then, she has received mental health
treatment. The Wife testified she has been treated by Dr. Monteith but
continues to experience migraines of varying severity that affect her daily
functioning, including travel.
The Wife testified that her migraines and her depression go together
so that the migraines could make her depression worse, and her depression
could make her migraines worse. The Husband’s counsel asked the Wife
why she could not maintain any form of employment; the Wife responded her
current functioning was temporary and unsustainable because attending the
court hearings that week required exceeding her weekly and monthly limits
for acute migraine medications. She stated that after this week, she would
have to avoid acute migraine medications for one to two months to prevent
medication-overuse headaches. She testified that the stress of being present
6
in court was temporarily masking the pain via adrenaline and cortisol, but
that once that wore off, she expected a “crash” after the exertion where she
will experience severe migraines followed by days or weeks bedridden. The
Wife was cross-examined extensively regarding the social media pictures
she posted while on trips, visiting art galleries, or dining with friends. She
further testified that her parents had loaned her $60,000-70,000 after the
Husband moved out in 2017.
The Wife also testified that the Husband took excellent care of her
during her illness and, at her request, delayed filing for divorce because it
would be too traumatic, given her health. She also testified that her California
family cannot visit her in Miami because it is too difficult for them to travel
with children.
The Husband then called Tamara Thomas, a vocational rehabilitation
counselor, who testified she assessed the Wife and opined the Wife is
employable in South Florida. Thomas recommended that the Wife refresh
her computer skills and join the American Grant Writers Association to
pursue remote work. Thomas estimated the Wife could earn between
$48,320-$59,860/year. Thomas conducted three job searches and identified
ten available positions the Wife could apply for.
7
The Wife’s attorney objected to Thomas’s testimony and report
because it was prepared before the changes in section 61.08, Florida
Statute, eliminating permanent periodic alimony. The trial court overruled this
objection. On cross-examination, Thomas acknowledged the Wife does not
drive and suggested public transportation. Thomas conceded she did not
contact any employer or confirm whether the positions identified in her July
3, 2023 search remained available. The Husband then rested his case.1
Thereafter, the Wife presented her case. She first called Dr. Monteith.
The parties stipulated to Dr. Monteith testifying as an expert.
Dr. Monteith, the Wife’s treating physician since October 2020,
diagnosed the Wife with chronic, intractable migraines occurring about
fifteen days per month and rated her at the most severe MIDAS (“Migraine
Disability Assessment Scale”) level – grade four. Dr. Monteith testified that
intractable means “despite use of medications the migraines persist.” She
testified that the Wife also reported vertigo, sensitivity to light and sound, and
nausea, and had been diagnosed at the University of Miami with vestibular
neuritis, which could contribute to migraines. Although the Wife’s headache
1
The Husband also called Mario Garcia, a real estate appraiser, who testified that the value of the marital home where the parties lived was $165,000 in 2012; $260,000 in 2017 when the parties separated; and $305,000 in October 2020 when the Husband filed the petition for dissolution of marriage.
8
frequency and severity had decreased since 2020, Dr. Monteith opined that
the Wife remained a grade-four intractable migraine sufferer and would likely
have difficulty working due to symptoms and potential absenteeism at work.
On cross-examination, Dr. Monteith acknowledged that a migraine
diagnosis is symptom-based and depends on the patient’s self-reporting and
candor. She further testified that the Wife’s examination was normal, with no
pathological findings of vestibular neuritis such as nystagmus and gate
abnormalities.
The Wife next called Dr. Matthew Simon, a licensed psychologist and
board-certified forensic psychologist, who evaluated the Wife using five
psychological tests, two neurocognitive tests, and Dr. Monteith’s records. He
reported the Wife had an IQ of 117, so she was at the high range of
functioning. He found the Wife to be markedly depressed and diagnosed her
with major depressive disorder. Dr. Simon testified depression can be
compatible with employment but opined the prognosis was poor given the
comorbidities. He did not believe the Wife had PTSD.
Iris More, a licensed psychotherapist, then testified as a fact witness.
She stated that she had treated the Wife in approximately 111 sessions and
was currently treating her weekly, beginning after the Wife discovered the
Husband’s infidelity in 2017. More observed the Wife was depressed and
9
anxious. She initially encouraged the Wife to do basic daily activities and
exercise and opined that the Wife’s condition would improve with increased
socialization and financial self-sufficiency.
The Wife then testified on her own behalf. She explained she missed
the previous trial day because she could not get out of bed. She stated that
early in the marriage, she performed household tasks and assisted the
Husband with his English, his U.S. citizenship application, and job interview
preparation. The Wife testified she learned of the Husband’s affair in 2014
and of a second affair in 2021 after he moved out in 2017, which she said
worsened her anxiety, depression, and post-traumatic stress. She further
testified she remained covered under the Husband’s employer-provided
health insurance from 2014 through trial.
On cross-examination, the Wife disputed that Dr. Simon ruled out
PTSD. She believed he stated that it did not meet the clinical threshold. The
Wife acknowledged speaking three languages but testified she could not
sustain any employment due to limited, intermittent functioning.
After the Wife finished her testimony, she called Lynn Britt, a certified
public accountant, who testified about issues related to equitable distribution.
The Wife then rested her case.
10
The trial court then asked each side to present an oral closing
argument. During the Wife’s closing, her attorney stated:
Judge, as far as attorney’s fees and costs. Yes, Judge, it has
been an incredible amount of litigation.
A lot of it the Court is going to hear about it, unfortunately, in an
attorney’s fee hearing. There has been a couple of 57.105
motions filed. We’re seeking fees under Rosen. We’ve had all
kinds of issues with discovery in this case.
I’m asking the Court to reserve on fees.
In January 2024, the trial court entered its Amended Final Judgment
on “Husband’s Petition for Dissolution of Marriage and No Minor Children.”
The trial court did not award the Wife any alimony. The court made the
following written findings:
7. [The Husband] is a software engineer and [the Wife] is
currently unemployed; the last time she applied for a job was in
2013. In the past, [the Wife] worked freelance as a consular
research scientist, and she has an anthropology degree. [The
Wife] pled that as of 2014 she became disabled and is incapable
of employment, as she suffers from mental illness and physical
conditions that would impair her ability to perform at work. [The
Wife] testified that she has mild thyroid, stipular magnetos,
chronic intractable migraines, cataracts, and depression with
suicidal thoughts. [The Wife] averred that she was affected very
badly after discovering her husband’s affair. [The Wife] alleges
that she is not able to perform regular day-to-day activities such
as driving.
14. After the final hearing that took place, the Court relieved [the
Husband] from making alimony payments to [The Wife]. The
Court finds that [the Wife] is capable of working and supporting
herself but chooses not to. The cross-examination of witness [the
11
Wife] revealed that she has the prerequisite skills and
qualifications for a highly prestigious job. Expert witness Tamara
Thomas conducted an assessment of [the Wife] on December
9, 2021, and provided her with career opportunities and that
there were ten employment opportunities that would allow her
flexibility. However, [the Wife] did not apply to any. Although [the
Wife] alleges that she is impaired by various neurological
conditions and is unable to complete daily tasks on her own, her
testimony revealed that she was able to prepare food while
experiencing moderate migraines and was also able to travel for
weeks at a time. Additionally, Dr. Simon testified that [the Wife]
showed no signs of post-traumatic stress due to her husband’s
alleged affair. Dr. Monteith also offered a DHE infusion procedure
as a solution to treat her migraines and headaches, yet [the Wife]
declined this treatment.
15. Further facts showed that [the Wife] borrowed approximately
$60,000.00 from her parents and was able to pay a $5000 [sic]
retainer for her own marijuana treatment, messages [sic],
acupuncture, and other supplements, yet [the Wife] refused to
pay for an DHE infusion treatment. [The Wife] testified that she
was able to go to her appointments even when she was
experiencing severe migraines.
The Wife moved for rehearing, arguing that the trial court erred in
denying alimony, in failing to make the required findings, in failing to reserve
jurisdiction over attorney’s fees, and in denying a continuance. After a
hearing, the trial court granted rehearing only as to the Wife’s entitlement to
attorney’s fees and costs, retained jurisdiction to determine the amount, and
otherwise denied relief. The Husband then appealed, and the Wife crossappealed.
STANDARD OF REVIEW
12
On direct appeal, the standard of review of a trial court’s decision
regarding a rule 12.530 motion for rehearing is abuse of discretion. Barrett
v. Barrett, 313 So. 3d 224, 228 (Fla. 5th DCA 2021). On cross appeal, the
appellate court reviews an order denying a motion for continuance under an
abuse of discretion standard. Vella v. Salaues, 290 So. 3d 946, 948-49 (Fla.
3d DCA 2019). The appellate court reviews the denial of a request for
alimony also under an abuse of discretion standard. Saario v. Tiller, 333 So.
3d 315, 320 (Fla. 5th DCA 2022).
ANALYSIS
Direct Appeal
The Husband contends that the trial court abused its discretion in
granting the Wife’s motion for rehearing and supplementing its Final
Judgment to reserve jurisdiction to hear the Wife’s claim for attorney’s fees
and costs where the Wife rested her case at trial without presenting evidence
to support her fee claim and where the court failed to reserve jurisdiction.
The Husband further argues that the trial court abused its discretion in
granting the Wife’s motion for rehearing after she failed to meet her
evidentiary burden despite having knowledge of her claim for attorney’s fees
and costs and that this prejudiced him.
13
First, in Flores v. Flores, 82 So. 3d 838 (Fla. 4th DCA 2011), the Fourth
District Court of Appeal held that “[w]here the trial court fails to address a
request for attorney’s fees and costs or to reserve jurisdiction to consider the
issue, the final judgment should be reversed and remanded for entry of a
corrected judgment reserving jurisdiction to address the request for
attorney’s fees and costs.” Id. at 839. In that case, the appellate court
reversed after the former wife requested an award of attorney’s fees in her
amended answer, raised the issue of attorney’s fees in a pre-trial statement,
and requested in her written closing argument that the trial court reserve
jurisdiction on the attorney’s fees issue. Id.
Here, the Amended Final Judgment was entered on January 18, 2024.
The Wife filed her Motion for Rehearing on February 1, 2024; thus, it was
timely under Florida Family Law Rule of Procedure 12.530(b). On December
18, 2020, in her Answer and Verified Counterpetition for Dissolution of
Marriage and Other Relief, the Wife requested attorney’s fees, like the Wife
in Flores did. On August 15, 2023, the first day of non-jury trial before the
trial court, in the Wife’s counsel’s opening statement, she requested that the
trial court reserve on fees. Later, during the Wife’s counsel’s closing
argument, the Wife’s counsel stated they were asking for attorney’s fees
14
under Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), and requested that the
court reserve on fees.
Pursuant to section 61.16, Florida Statutes (2020), “[T]he trial court can
award attorney's fees to a party in a dissolution proceeding ‘after considering
the financial resources of both parties.’” Doyle v. Doyle, 789 So. 2d 499, 502
(Fla. 5th DCA 2001). “The court is permitted to take into account the earning
ability of both spouses, the amount of marital assets and liabilities distributed
to each spouse, and the liquidity of the assets distributed.” Id. at 502-03.
Whether to grant an award of attorney's fees is a matter within the trial court's
sound discretion; therefore, absent a showing of abuse of that discretion, the
decision cannot be reversed. See Bloodwell v. Bloodwell, 508 So. 2d 771,
771 (Fla. 5th DCA 1987).
Here, the trial court granted the Wife’s motion for rehearing in part, only
as to the issue of attorney’s fees and costs. The court further noted the
Amended Judgment was supplemented with the disposition of its order. The
court found that the Husband had the ability to pay attorney’s fees because
he had a stable job and was earning over four times what the Wife could
earn annually if she sought employment. The court found the Wife had need
because under the Amended Final Judgment, she was required to move out
15
of the marital home, her attorney’s bills were outstanding, and she was
unemployed.
However, the trial court did more than supplement the Amended Final
Judgment to reserve jurisdiction over attorney’s fees and costs; the court
went one step further and found that the Wife was entitled to fees and costs.
In her Answer Brief, the Wife contends if this Court follows Florida law, it must
affirm the trial court’s decision to grant the Wife’s motion for rehearing and
allow the Wife to present her claim for attorney’s fees and costs at a future
date. The Wife attributes the omission of a reservation of jurisdiction to the
trial court. Thus, the wife admits that a full evidentiary hearing on the issue
is needed on remand. Entitlement to an award of attorney’s fees under
section 61.16, Florida Statutes (2024), turns on need and ability to pay and,
absent a stipulation, must be determined at an evidentiary hearing. See
Jones v. Jones, 671 So. 2d 852, 854-55 (Fla. 5th DCA 1996); Soterakis v.
Soterakis, 913 So. 2d 688, 690 (Fla. 5th DCA 2005). The trial court therefore
abused its discretion in awarding the Wife entitlement to fees and costs
without first addressing that issue at an evidentiary hearing.
Cross-Appeal
16
On cross-appeal, the Wife contends the trial court erred in denying her
motion to continue the final hearing based on multiple grounds that, taken
together, warranted a continuance. We find no merit to her position.
The Wife filed her verified motion for continuance on July 13, 2023,
one month before trial. She argued she needed additional discovery due to
amendments to section 61.08 and because the Husband had not produced
certain materials, including documents sought by deposition duces tecum
and records from the Husband’s counsel. However, the Husband’s
deposition was completed in December 2022. Further, the Wife does not
specify in her motion what documents were missing or why they were
relevant to her case.
The Wife relies on Ramadon v. Ramadon, 216 So. 3d 26 (Fla. 2d DCA
2017), in support of her position. In Ramadon, the trial court denied the
former wife’s motion for continuance filed by her recently hired trial counsel
who had replaced her previous counsel who had withdrawn two weeks
earlier. Id. at 28. The Second Distrct Court of Appeal reversed the denial of
the continuance and stated that the former wife had been harmed by the
former’s husband’s noncompliance with discovery orders and her “request
for continuance was unforeseeable by the movant and not the result of
17
dilatory practice.” Id. at 30. Here, in contrast, the Wife has not shown
prejudice from any allegedly missing discovery.
The Wife also relies on Freire v. Citizens Property Insurance
Corporation, 386 So. 3d 995 (Fla. 3d DCA 2023), and argues that she met
the criteria for continuance outlined in that case. In Freire, this Court
explained that the three criteria that must be met for continuance are “that
the outstanding discovery: 1) was sought diligently, 2) was sought in good
faith, and 3) is material to the disposition of the case.” Id. at 995. Here, the
Wife moved for continuance one month before trial and did not demonstrate
diligence or explain how the requested discovery was material to the
disposition of her claims.
The Wife further argues she required additional discovery due to the
2023 amendment to the adultery provision in section 61.08, Florida Statutes.
She asserted in her motion for continuance that the 2023 amendment to the
statute “now makes adultery an issue in a manner not implicated under the
former statute.” She likewise sought leave to amend her counterpetition,
contending that the prior version of the statute did not require measuring
adultery’s economic impact.
Before the 2023 amendment, section 61.08(1) provided: “The court
may consider the adultery of either spouse and the circumstances thereof in
18
determining the amount of alimony, if any, to be awarded.” § 61.08(1)(b), Fla.
Stat. (2022). The current version states that “[t]he court may consider the
adultery of either spouse and any resulting economic impact in determining
the amount of alimony, if any, to be awarded.” § 61.08(1)(a), Fla. Stat. (2025).
However, even under the prior version of the statute, evidence of adultery
was relevant to show whether the adultery caused a greater need for alimony
or whether the spouse committing adultery depleted marital assets during
the extra marital affair. See, e.g., Haley v. Haley, 649 So. 2d 332, 332-33
(Fla. 5th DCA 1995) (“The husband’s adultery may be considered by the
court in deciding on an alimony award, but where, as here, there is no
evidence that the husband’s adultery caused a material depletion of marital
assets and no evidence it has increased the appellant’s need for support
(beyond the fact of the divorce itself), the court did not err in failing to award
alimony based on the husband’s marital misconduct.”); Santora v. Santoro,
642 So. 2d 86, 87 (Fla. 2d DCA 1994) (“However, the rule in such cases is
that unless such marital misconduct causes a depletion of marital assets,
thus affecting one spouse’s ability to pay alimony or the other spouse’s need
for alimony, it may not be used as a basis for an award of alimony.”). Thus,
the trial court did not err in denying the Wife’s motion for continuance on this
discovery ground.
19
Next, the Wife argues she needed to amend her counterpetition to
conform to the 2023 alimony amendments eliminating permanent alimony.
In her July 13, 2023, motion for continuance of trial, as well as her August 9,
2023 motion to supplement her motion for continuance, the Wife argued she
needed to amend her counterpetition to allege a claim for durational alimony
instead of permanent alimony, due to the 2023 amendment to the alimony
statute which did away with permanent alimony. However, the Wife’s original
counterpetition already sought permanent and durational alimony; thus, no
amendment was necessary for the Wife to pursue durational alimony.
The Wife further asserts she sought to amend her counterpetition to
request durational alimony for a period over the maximum duration of fifty
(50) percent of the length of the marriage, as set out in section 61.08(8)(b),
as amended. The Wife claims she was required to plead “exceptional
circumstances.” Section 61.08(8)(a) and (b), Florida Statutes (2024) state, in
part:
(8)(a) . . . The length of an award of durational alimony may not
be modified except under exceptional circumstances and may
not exceed the length of the marriage except as set forth in this
subsection.
(b) An award of durational alimony may not exceed 50 percent of
the length of a short-term marriage, . . . . Under exceptional
circumstances, the court may extend the term of durational
alimony by a showing of clear and convincing evidence that it is
necessary . . . .
20
Thus, section 61.08 does not require that a spouse plead exceptional
circumstances; rather, it requires proof of them. Here, the Wife did not
identify what exceptional circumstances existed unknown before or during
trial that would have necessitated amending her counterpetition.
The Wife also contended that she needed to amend her counterpetition
because the amended alimony statute adopted a new method for calculating
an alimony award. She claims this new method is one she did not consider
under the prior version of the statute.
According to the amended statute, durational alimony is “the amount
determined to be the obligee’s reasonable need, or an amount not to exceed
35 percent of the difference between the parties’ net incomes, whichever
amount is less.” § 61.08(8)(c), Fla. Stat. (2024). The Wife has not identified
any additional evidence required to prove alimony under the amended
statute beyond what was relevant under the prior statute. The trial court,
therefore, properly denied her motion for continuance.
The Wife argues that the trial court abused its discretion in denying her
request for alimony by rejecting her expert witnesses’ testimony that her
migraines prevent her from working, substituting its own judgment, and
failing to make the findings required under the alimony statute. She first
argues she presented unrebutted expert testimony establishing her inability
21
to support herself without the Husband’s assistance. Although she concedes
the trial court may reject expert witness testimony, she contends it abused
its discretion here, relying on Beach Community Bank v. First Brownsville
Company, 85 So. 3d 1119 (Fla. 1st DCA 2012). In First Brownsville Company,
the expert valued a parcel of real property twice. Id. at 1121. The trial court
rejected the appraiser’s testimony as not credible because his valuation
dropped from $1,480,000.00 in October 2009 to $770,000.00 in August
2010. Id. The trial court found “the diminution in value between his first and
second appraisals was simply ‘too dramatic.’” Id. On appeal, the First District
disagreed with the trial court and stated:
The decision to accept or reject expert testimony is reviewed
under an abuse of discretion standard. However, the court’s
discretion in rejecting expert testimony cannot be exercised
arbitrarily and requires some reasonable basis in the evidence.
Moreover, “the trial court may not pit its judgment against that of
an expert on highly technical matters.”
[The expert’s] appraisals detailed several reasons why the
property’s value declined. None of this evidence was challenged
by Appellees or rejected by the court. Finally, there was no
reasonable basis in the evidence for the court to opine that a
gradual ten percent diminution in the value of the property was
more reasonable.
Id. at 1121-22 (internal citations omitted).
First Brownsville Company is distinguishable. In First Brownsville
Company, there was no evidence to support the trial court’s judgment that it
22
substituted for the expert’s judgment, and the opposing party did not
challenge the expert’s testimony. Here, the Husband challenged the Wife’s
experts on cross-examination, including evidence that the Wife had
previously declined the IV/DHE infusion treatment recommended by Dr.
Monteith in early 2022. In addition, in Dr. Simon’s evaluation of the Wife, he
did not find that she had PTSD due to the Husband’s extramarital affair, as
the Wife claimed. Moreover, whether the Wife’s migraines prevent her from
working turns largely on the Wife’s self-reported symptoms and is not highly
technical. On this record, the trial court’s rejection of the Wife’s expert
testimony was not arbitrary and was supported by competent, substantial
evidence. Accordingly, no abuse of discretion was shown. See Richardson
v. Richardson, 442 So. 2d 1005, 1005 (Fla. 3d DCA 1983) (“An abuse of
discretion appears when the record reveals a lack of competent, substantial
evidence to sustain the findings of the trial court.”).
Finally, the Wife alleges that the trial court failed to make written
findings of fact in the Final Judgment as required under section 61.08(2)(b),
Florida Statutes. Section 61.08 states, in part:
(2)(b) When determining a support, maintenance, or alimony
claim, the court shall include written findings of fact relative to the
factors provided in subsection (3) supporting an award or denial
of support, maintenance, or alimony, unless the denial is based
upon a failure to establish a need for or ability to pay support,
maintenance, or alimony. However, the court shall make
23
written findings of fact as to the lack of need or lack of ability to pay in denying a request for support, maintenance, or
alimony.
(3) If the court finds that the party seeking support, maintenance, or alimony has a need for it and that the other party has the ability to pay support, maintenance, or alimony, then in determining the proper form or forms of support, maintenance, or alimony under subsections (5)-(8), or a deviation therefrom, the court shall consider all of the following relevant factors, including, but not limited to:
(a) The duration of the marriage.
(b) The standard of living established during the marriage and the anticipated needs and necessities of life for each party after the entry of the final judgment.
(c) The age, physical, mental, and emotional condition of each party, including whether either party is physically or mentally disabled and the resulting impact on either the obligee's ability to provide for his or her own needs or the obligor's ability to pay alimony and whether such conditions are expected to be
temporary or permanent.
(d) The resources and income of each party, including the
income generated from both nonmarital and marital assets.
(e) The earning capacities, educational levels, vocational skills, and employability of the parties, including the ability of either party to obtain the necessary skills or education to become selfsupporting or to contribute to his or her self-support prior to the termination of the support, maintenance, or alimony award.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any minor children whom the parties have in common, with special consideration given to the need to care for a child with a mental or physical disability.
(h) Any other factor necessary for equity and justice between the parties, which shall be specifically identified in the written findings of fact. This may include a finding of a supportive relationship as provided for in s. 61.14(1)(b) or a reasonable retirement as provided for in s. 61.14(1)(c) 1.
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(Emphasis added). The Wife argues that the trial court was required to make
findings on each of the factors listed in subsection (3)(a)-(h). However,
because the court denied alimony based on lack of need, it was not required
to address each statutory factor. The requirement to consider those listed
factors only applies after a trial court first determines that one party has a
need for alimony and the other has the ability to pay. Ballard v. Ballard, 158
So. 3d 641, 644 (2014) (“[T]he trial court [was not] required to make findings
of fact supporting its denial [of alimony], beyond its finding that neither party
had an actual need for alimony or maintenance. . . . The court would have
been required to make findings based upon the factors in section 61.08(2)
only if the court had concluded that one of the parties was entitled to
alimony.”).
Here, the trial court made the following written findings in paragraph 14
of the Amended Final Judgment:
14. After the final hearing that took place, the Court relieved
Husband/Petitioner from making alimony payments to
Wife/Respondent. The Court finds that the Respondent is
capable of working and supporting herself but chooses not to.
The cross-examination of witness Respondent revealed that she
has the prerequisite skills and qualifications for a highly
prestigious job. Expert witness Tamara Thomas conducted an
assessment of Respondent on December 9, 2021, and provided
her with career opportunities and that there were ten employment
opportunities that would allow her flexibility. However,
Respondent did not apply to any. Although Respondent alleges
that she is impaired by various neurological conditions and is
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unable to complete daily tasks on her own, her testimony
revealed that she was able to prepare food while experiencing
moderate migraines and was also able to travel for weeks at a
time. Additionally, Dr. Simon testified that Respondent showed
no signs of post-traumatic stress due to her husband’s alleged
affair. Dr. Monteith also offered a DHE infusion procedure as a
solution to treat her migraines and headaches, yet Respondent
declined this treatment.
Accordingly, the trial court made written findings substantiating why it denied
alimony to the Wife. Mango v. Mango, 370 So. 3d 370, 373 (Fla. 5th DCA
2023) (Soud, J. concurring) (“[The listed factors in section 61.08] are to be
considered when the trial court in a dissolution action—having already
determined one spouse has need for alimony and the other spouse has the
ability to pay alimony—decides the type and amount of alimony to be
awarded. See § 61.08, Fla. Stat.[.]”).
CONCLUSION
On the Husband’s direct appeal, we reverse the Amended Final
Judgment and the order on the Wife’s motion for rehearing, to the extent the
trial court awarded the Wife entitlement to attorney’s fees and costs. We
remand the case for an evidentiary hearing on the Wife’s entitlement to fees,
and if entitlement is found, a determination of the reasonable amount of
attorney’s fees and costs. On the Wife’s cross-appeal, we affirm the
Amended Final Judgment and the Order on the Wife’s motion for rehearing,
as to all issues raised.
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Affirmed in part, reversed in part, and remanded.
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