Rebecca Zalkin v. Jeffrey Zalkin
CourtDistrict Court of Appeal of Florida
Date FiledNovember 4, 2026
Docket4D2025-0278
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
REBECCA ZALKIN,
Appellant,
v.
JEFFREY ZALKIN,
Appellee.
Nos. 4D2025-0278 and 4D2025-0737
[November 4, 2026]
Consolidated appeals from the Circuit Court for the Seventeenth Judicial
Circuit, Broward County; Lorena V. Mastrarrigo and Carlos A. Rodriguez,
Judges; L.T. Case No. 062022DR005878AXXXCE.
Douglas H. Reynolds, Brieonna S. Christopher, and Jennifer A. Bautista of
Tripp Scott, P.A., Fort Lauderdale, for appellant.
Brandon S. Vesely and Amy L. Dilday of The Florida Appellate Firm, P.A., St.
Petersburg, for appellee.
WHITE, REBECCA, Associate Judge.
The wife appeals from a final judgment dissolving her marriage, and the trial
court’s order correcting the final judgment entered after the wife had appealed.
As discussed below, the wife raises five arguments on appeal, four of which
require reversal regarding alimony, child support, amending the final judgment
after this appeal had commenced, and parental responsibility and timesharing.
On the fifth argument, we affirm the trial court’s denial of attorney’s fees and
costs to the wife.
Background
The parties were married in 2004. They had two minor children during the
marriage.
During the pendency of the dissolution case, the wife sought temporary
alimony and temporary attorney’s fees, which the trial court denied. The wife
appealed. We affirmed the trial court’s denial of temporary alimony, but reversed
the trial court’s denial of temporary attorneys’ fees, as the trial court had based
its denial on findings unrelated to the parties’ financial positions. Zalkin v.
Zalkin, 392 So. 3d 159, 160–61 (Fla. 4th DCA 2024).
The parties later agreed on an equitable distribution plan. Following a two-
day trial held in February 2024, and a separate fees hearing in October 2024, a
final judgment was entered by the trial court in November 2024.
In the final judgment, the trial court stated that it would not be rendering a
final decision as to the parenting plan. Instead, the trial court ordered a
temporary parenting plan, timesharing schedule, and parental responsibility
provisions. After applying the factors in section 61.13(3), Florida Statutes
(2023), the final judgment gave the husband 100% timesharing, and ordered
shared parental responsibility, with the husband having ultimate decision-
making authority. However, at the end of the final judgment, the trial court
inconsistently granted sole parental responsibility to the husband. The trial
court additionally denied the wife’s requests for alimony and attorneys’ fees.
The wife filed a motion for rehearing, which the trial court denied. The wife
then filed this appeal.
After the wife filed this appeal, the husband filed a motion requesting the trial
court to correct the final judgment, to make the temporary timesharing schedule
previously entered become permanent.
The trial court granted the husband’s motion, and entered an order amending
the final judgment to indicate that the timesharing and parenting plan described
in the final judgment would be permanent. The trial court also amended the
final judgment to uniformly indicate that the trial court had granted the husband
sole parental responsibility. The trial court further amended the final judgment
to include the child support guidelines.
This appeal then resumed.
Alimony
First, the wife raises several arguments for why the trial court erred in
denying her alimony. We address each argument in turn.
The trial court has broad discretion to award alimony, and “[a]n appellate
court will not disturb an alimony award where competent substantial evidence
supports the award and the trial court complies with the governing law.”
Broemer v. Broemer, 109 So. 3d 284, 289 (Fla. 1st DCA 2013).
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Need and Ability to Pay
Section 61.08(2)(a), Florida Statutes (2023), states that when a trial court is
determining whether to award alimony, it “shall first make a specific, factual
determination as to whether the party seeking support, maintenance, or alimony
has an actual need for it and whether the other party has the ability to pay
support, maintenance, or alimony.” § 61.08(2)(a), Fla. Stat. (2023). In assessing
a party’s need and ability to pay, the trial court must “subtract the party’s
monthly expenses from their net monthly income. . . .” Lopez v. Lopez, 385 So.
3d 1090, 1092 (Fla. 4th DCA 2024) (quoting Waite v. Milo-Waite, 358 So. 3d 768,
774 (Fla. 4th DCA 2023)). “After finding a need for alimony and an ability to pay,
the court shall consider all of the mandated factors in section 61.08(3) to
evaluate and determine the proper form of alimony.” Edman v. Edman, 407 So.
3d 452, 455 (Fla. 4th DCA 2025).
Here, the trial court did not first decide the wife’s need for alimony or the
husband’s ability to pay before it considered the factors under section 61.08(3)
as required. Further, the trial court imputed gross income to the wife. The “trial
court must make specific findings regarding each party’s net income and the
findings of need and ability to pay must then be based on the parties’ net
incomes.” Reese v. Reese, 363 So. 3d 1202, 1212 (Fla. 6th DCA 2023) (citing
Ogle v. Ogle, 334 So. 3d 699, 703 (Fla. 1st DCA 2022)). In Reese, the Sixth
District determined that the trial court erred in relying on gross income in
imputing income to the wife, which error necessitated reversal due to the trial
court’s failure to make specific findings regarding the parties’ net incomes. Id.
at 1211. Thus, here, as the trial court did not make specific findings as to need
and ability to pay before applying the section 61.08(3)(a)-(h) factors, and relied
upon the wife’s imputed gross income, the trial court erred in denying alimony.
Additionally, the trial court erred in failing to consider the husband’s
voluntary contributions to his 401(k) plan. See Melton v. Melton, 79 So. 3d 154,
156 (Fla. 2d DCA 2012) (“[T]rial courts must factor in the paying spouse’s
voluntary contributions to investments, savings, and retirement plans in making
the ‘ability-to-pay alimony calculation.’” (quoting Geoghegan v. Geoghegan, 969
So. 2d 482, 486 (Fla. 5th DCA 2007))). On remand, the trial court should
consider the husband’s voluntary contributions to his 401(k) account in
determining his ability to pay.
The wife additionally argues that the trial court’s determinations under
section 61.08(3) are not supported by the evidence. The wife makes this
argument on four grounds as to the trial court’s findings under section 61.08(3):
(1) the imputed salary income, (2) the imputed investment income, (3) gifts
received from her father, and (4) the existence of a supportive relationship.
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Imputed Income – Salary
A trial court may impute income to a spouse. However, “the trial court ‘may
only impute a level of income supported by the evidence of employment potential
and probable earnings based on history, qualifications, and prevailing wages.’”
Inman v. Inman, 345 So. 3d 320, 322 (Fla. 4th DCA 2022) (quoting Koscher v.
Koscher, 201 So. 3d 736, 741 (Fla. 4th DCA 2016)). “In determining a party’s
income for alimony purposes, a court may not speculate on what might happen
in the future but must consider the circumstances that existed at the time of the
final hearing.” Id. (citation omitted).
In imputing income, the trial court must evaluate two questions. “First, the
court must conclude that the termination of income was voluntary.” Koscher,
201 So. 3d at 740 (citations omitted). Here, testimony supported that the wife
voluntarily reduced her position to a teacher’s assistant. The evidence at trial
established that the wife holds a master’s degree and voluntarily reduced her
position from a teacher to a teacher’s assistant in the 2020-2021 school year.
The school’s representative testified that the transition from teacher to teacher’s
assistant reduced the wife’s salary from $49,449.60 to $20,000, and that the
current salary of a teacher with a master’s level education is $54,000.
Second, the trial court must determine “whether the subsequent
unemployment ‘resulted from the spouse’s pursuit of [her] own interests or
through less than diligent and bona fide efforts to find employment paying
income at a level equal to or better than that formerly received.’” Id. (quoting
Heard v. Perales, 189 So. 3d 834, 836 (Fla. 4th DCA 2015)). Here, the wife and
her therapist testified that the wife works as a teacher’s assistant because of the
stress caused by teaching. The wife testified that she does not intend to seek a
teaching position, and she would not leave the school where she is currently
employed as a teacher’s assistant. Based on the findings, the trial court did not
err in finding the wife voluntarily underemployed.
However, the wife argues that the trial court erred in determining alimony,
because the trial court improperly imputed a $54,000 annual income to her
when no evidence was presented that a teaching job existed at the school when
the trial occurred. The party seeking to impute income “bears the burden of
showing both employability and that jobs are available.” Koscher, 201 So. 3d at
741 (quoting Durand v. Durand, 16 So. 3d 982, 985 (Fla. 4th DCA 2009)). The
undisputed trial testimony was that no teaching position for which the wife
qualifies is currently available. Additionally, while the current income for a
teacher with a master’s degree is $54,000, the wife’s last income as a teacher
was less than that amount. Thus, while the husband may have shown
employability because of the wife’s education and employment history, the
husband did not show that a job was available.
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Therefore, the evidence does not support the income which the trial court
imputed to the wife.
Imputed Income – Investment
The trial court additionally imputed monthly gross income to the parties
based on their retirement assets. A trial court does not abuse its discretion in
considering a spouse’s ability to withdraw from a retirement account without
penalty in determining income potential, so long as the withdrawal does not
invade the principal. Niederman v. Niederman, 60 So. 3d 544, 547 (Fla. 4th DCA
2011). Here, the trial court did not find that the imputed income would not
invade the principal. Therefore, the trial court’s finding is not supported by
competent and substantial evidence.
Gifts from the Wife’s Father
The trial court stated in the final judgment that it did not accept the wife’s
argument that the monies which she has received from her father throughout
this action are loans that must be repaid. A trial court may consider family gifts
in imputing income to a party where the gifts are not sporadic, but instead are
continuing and ongoing and “where the evidence shows that the gifts will
continue in the future.” Oluwek v. Oluwek, 2 So. 3d 1038, 1039 (Fla. 2d DCA
2009) (citation omitted). The wife’s father testified at trial that he was paying for
the wife’s half of her expenses which she shares with her boyfriend. The wife’s
father stated his “intention is to support and give – loan money to [his] daughter.”
He further testified that he has not received payments, does not have a payment
plan, and was not prepared to sue for the money as of the date of trial.
Based on the evidence presented at trial, the trial court made a credibility
determination that the monies which she has received from her father were gifts
rather than loans. The trial court determined based on the father’s testimony
that he intended to continue supporting his daughter, and this support was
ongoing. We defer to a trial court’s credibility finding. Evans v. Thornton, 898
So. 2d 151, 152 (Fla. 4th DCA 2005). Therefore, the trial court did not err in
imputing income from the wife’s father’s gifts.
The Wife’s Supportive Relationship
Finally, the trial court determined that the wife and her boyfriend were in a
supportive relationship. Section 61.08(3)(h) states that the trial court shall
consider “[a]ny 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). . . .” § 61.08(3)(h), Fla. Stat. (2024). Here, the trial court
considered the factors listed under section 61.14(1)(b)(2), Florida Statutes (2024)
and made specific written findings of fact as to each. The trial court’s findings
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were supported by competent substantial evidence from the testimony presented
at trial.
Alimony Conclusion
Based on the foregoing, we must reverse and remand the alimony
determination, as the trial court did not make specific findings relating to need
and ability to pay on the parties’ net incomes before the trial court applied
section 61.08(3)’s factors. The trial court also erred in imputing income to the
wife as to her salary and investment accounts, as competent substantial
evidence did not support those determinations. Although competent substantial
evidence supported the trial court’s findings that the wife has received
continuing gifts from her father, and that her supportive relationship reduced
her need for alimony were supported by the evidence, our reversal of the trial
court’s alimony determination requires the trial court, on remand, to reconsider
those components as part of a complete need-and-ability-to-pay analysis
conducted on the parties’ net incomes.
Child Support
Second, the wife challenges the child support award. “The standard of review
for a child support award is abuse of discretion.” Smith v. Loffredo-Smith, 230
So. 3d 898, 899 (Fla. 4th DCA 2017) (citations omitted).
As analyzed above in the alimony determination, competent substantial
evidence did not support the trial court’s imputation of income to the wife. The
trial court’s child support determination also did not consider the wife’s
detriment-related expenses. See Frye v. Cuomo, 296 So. 3d 939, 942 (Fla. 4th
DCA 2020). Finally, the trial court’s child support calculation does not account
for a single child after the older child’s entitlement ends. Therefore, the child
support determination must be remanded to address all those issues.
Amended Final Judgment
Third, the wife asserts that, after she had filed her notice of appeal, the trial
court lacked jurisdiction to amend the final judgment. “The standard of review
regarding a trial court’s exercise of case jurisdiction while an appeal is pending
is de novo.” Terry v. State, 263 So. 3d 799, 802 (Fla. 4th DCA 2019). Generally,
“[w]hen an appeal is taken, ‘the lower court [is] divested of jurisdiction to proceed
with matters related to the final judgment.’” Jallali v. Knightsbridge Vill.
Homeowners Ass’n, 152 So. 3d 808, 809 (Fla. 4th DCA 2014) (quoting Hudson
v. Hofmann, 471 So. 2d 117, 118 (Fla. 2d DCA 1985)).
Here, after the wife had filed her notice of appeal, the trial court amended the
final judgment to: (1) make the parenting plan final and permanent, (2) clarify
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that the trial court had awarded the husband sole parental responsibility, and
(3) add detriment findings required to award sole parental responsibility to the
husband. As an initial matter, the trial court did not make a detriment finding
orally or in the final judgment. While the factual circumstances may have
supported a detriment finding, the trial court did not make that finding until
after the wife had filed her notice of appeal. As we stated in Campbell v.
Campbell, 100 So. 3d 763 (Fla. 4th DCA 2012), once a notice of appeal is filed,
“the trial court [is] divested of jurisdiction” to alter that very order. Id. at 765.
Thus, we conclude that all amendments to the final judgment were substantive,
and the trial court was without jurisdiction to amend the final judgment after
the wife had filed her notice of appeal.
Parental Responsibility and Timesharing
Fourth, the wife argues the trial court’s determination of parental
responsibility and timesharing is erroneous. “The standard of review for the trial
court’s findings and determination regarding primary parental responsibility is
abuse of discretion.” De La Fe v. De La Fe, 332 So. 3d 60, 61 (Fla. 2d DCA 2021)
(citation omitted). A trial court may not only consider “the best interests of the
child” factors in awarding sole parental responsibility without also determining
whether shared parental responsibility is detrimental to the child. Socol v. Socol,
291 So. 3d 594, 596–97 (Fla. 4th DCA 2020) (citations omitted).
Here, the trial court did not make a detriment finding in the original final
judgment, but rather applied only the best interest factors before the trial court
made the inconsistent rulings regarding parental responsibility and awarded the
husband ultimate decision-making authority for all aspects of the children’s
lives. By awarding ultimate decision-making authority to the husband as to all
issues, “the trial court essentially nullified the award of shared parental
responsibility.” Cranney v. Cranney, 206 So. 3d 162, 164 (Fla. 2d DCA 2016).
We have held “that giving the primary residential parent unlimited decision
making authority over all matters regarding the children is incompatible with
shared parental responsibility.” Seligsohn v. Seligsohn, 259 So. 3d 874, 876 (Fla.
4th DCA 2018) (quoting McClure v. Beck, 212 So. 3d 396, 398 (Fla. 4th DCA
2017)). Rather, a court may give ultimate authority over specific matters where
the parties cannot agree. Id. (citations omitted).
Here, the trial court erred in awarding sole parental responsibility or shared
parental responsibility with ultimate decision-making authority as to “all aspects
of the minor children’s lives” to the husband without finding that shared parental
responsibility would be detrimental to the children. Thus, we reverse and
remand for the trial court to either: (1) grant shared parental responsibility with
ultimate decision-making as to specific issues, not including medical issues, or
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(2) make findings to support awarding sole parental responsibility to the
husband. See De La Fe, 332 So. 3d at 62.
Attorney’s Fees and Costs
Fifth, the wife argues the trial court erred in denying the wife’s motion to
recover her attorney’s fees and costs from the husband. An award of attorneys’
fees is “reviewed for an abuse of discretion.” Alvarez v. Salazar, 338 So. 3d 267,
270 (Fla. 4th DCA 2022) (quoting Henry v. Henry, 191 So. 3d 995, 999 (Fla. 4th
DCA 2016)). Section 61.16(1), Florida Statutes (2024), authorizes a trial court
to award attorney’s fees and costs. “The standard for awarding attorney’s fees
in dissolution cases is the financial need of the requesting party and the financial
ability of the other party to pay.” Phillips v. Ford, 68 So. 3d 257, 258 (Fla. 4th
DCA 2010) (quoting Derrevere v. Derrevere, 899 So. 2d 1152, 1153 (Fla. 4th DCA
2005)).
Here, the trial court properly considered the parties’ relative financial
positions in its decision to deny the wife’s motion for attorneys’ fees. The trial
court then found that the wife had a need for trial attorney’s fees, but the
husband did not have the ability to pay. Competent substantial evidence
supports the trial court’s findings. Therefore, we affirm the trial court’s denial
of the wife’s motion for attorney’s fees and costs.
Appellate Attorney’s Fees and Costs
Finally, the wife argues that the final judgment must be reversed because the
trial court did not reserve jurisdiction in the final judgment to consider the wife’s
requests to recover her appellate attorney’s fees and costs. This issue is moot
because competent substantial evidence supports the trial court’s determination
that the husband does not have the ability to pay the wife’s attorney fees and
costs.
Conclusion
Having determined that the trial court failed to make required findings for its
denial of the wife’s request for alimony, and its awards of child support and time-
sharing, we reverse and remand for the trial court to make the requisite findings
which are supported by competent substantial evidence. Additionally, we vacate
the trial court’s order amending final judgment, because the trial court was
without jurisdiction to enter the order while this appeal was pending. Finally,
we affirm the trial court’s denial of the wife’s motion to recover her attorney’s
fees and costs.
Affirmed in part, reversed in part, and remanded with instructions.
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GERBER, C.J., and KLINGENSMITH, J., concur.
* * *
Not final until disposition of timely-filed motion for rehearing.
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