Avery v. Avery, 88-0793
| Decision Date | 13 September 1989 |
| Docket Number | No. 88-0793,88-0793 |
| Parties | 14 Fla. L. Weekly 2155 Richard T. AVERY, Appellant, v. Rachael L. AVERY, Appellee. |
| Court | Florida District Court of Appeals |
Janice Brustares Keyser of Reid, Ricca & Rigell, P.A., West Palm Beach, for appellant.
P. Michael Manning, Jr., Delray Beach, for appellee.
The husband appeals a final judgment of dissolution which, inter alia, awards permanent periodic alimony, holds him in contempt for failure to pay payments required by the temporary order of support, and awards attorney's fees to the wife.
The parties have been married for ten years. The husband was in the insurance and securities business. Both parties had invested substantial sums of money in the business which was sold prior to the dissolution proceedings. Because of substantial creditors of the business due to the husband's mismanagement, very little was realized from the sale, although the testimony is unclear on that point. Subsequent to the sale the husband worked for the new owners for a while and for another corporation. At the time of the dissolution the husband was retired and receiving social security payments. However, during the year in which the dissolution was filed he also worked enough to earn the maximum amount allowable ($8,000) without losing his social security benefits. Once he produced that amount of income he quit his job. The husband had diabetes and was in poor health. The wife, age 58, also had health problems, although she testified that they would not keep her from working. She had worked throughout the marriage, first for a group of doctors, and then for her husband's business. At the time of the dissolution she was not working and had not been working since the sale of their business, approximately a year earlier.
In the final judgment the trial court awarded the wife $700 per month in permanent periodic alimony, telling the husband at the final hearing that he would have to go back to work to try and pay it. The husband volunteered that he would have to go back to work just to exist as he could not make it on social security.
Was it within the trial court's discretion to award $700 per month permanent alimony to this wife when the award equalled the social security payment received by the husband? Under the circumstances presented in this case we think it was. The trial court can impute income to a spouse according to what he could earn by the use of his best efforts and consider the "earning capacity" of the paying spouse, Maddux v. Maddux, 495 So.2d 863 (Fla. 4th DCA 1986). In this case the husband had made $8,000 plus his social security during the year in which the divorce was filed and indicated his intention to go to work again to help support himself. What the trial court awarded the wife was about one-half of the husband's income as permanent alimony. The trial court thus left each party with equal resources at the present time. Although there appears to be some capacity of the wife to contribute to her own support, there was no evidence presented below to show what that capacity was at the time of the trial court's ruling. Suffice it to say that if the wife's income increases substantially, there is always the...
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