Broemer v. Broemer

• Decision Date: 06 March 2013
• Docket Number: No. 1D12–976.,1D12–976.
• Citation: 109 So.3d 284
• Parties: Mary Helen BROEMER, former wife, Appellant, v. Thomas Carl BROEMER, former husband, Appellee.
• Court: Florida District Court of Appeals

109 So.3d 284

Mary Helen BROEMER, former wife, Appellant,

v.Thomas Carl BROEMER, former husband, Appellee.

No. 1D12–976.

District Court of Appeal of Florida,

First District.

March 6, 2013.

Seth Schwartz and Caleb D. Rowland, of The Schwartz Law Group, P.A., Jacksonville, for Appellant.

William Bruce Muench and Jonathan J. Luca, of Muench & Luca, PLLC, Jacksonville, for Appellee.

WRIGHT, WILLIAM L., Associate Judge.

Mary Helen Broemer, the former wife, appeals portions of an amended final judgment dissolving her twenty-seven-year marriage to Thomas Carl Broemer. The former wife contends that the trial court abused its discretion in imputing income to her and in denying her motion for additional attorney's fees and costs, and erred in awarding durational alimony rather than permanent alimony without any legal or evidentiary basis. We affirm the imputation of income and the denial of the motion for fees and costs. We reverse the alimony award, however, and remand for specific factual findings or other appropriate relief.

I. Facts and Procedural History

At the time of the January 2012 amended dissolution judgment, the former wife was fifty-two years old and the former husband was fifty-four. The trial court found that the parties had a very modest lifestyle during the marriage, in the course of which the former husband was employed outside the home and served as the breadwinner, while the former wife was the homemaker and primary caregiver to the children, who are now adults. Although the former husband repeatedly urged the former wife to seek outside employment to supplement his income, she did not do so on any regular basis. Her last job outside the home ended in 1993, after which she earned no income from employment.

The court heard the testimony of Dr. Edwards, a family practice physician who is not the former wife's primary care doctor. After performing a physical examination of the former wife, the doctor found signs and symptoms of carpal tunnel syndrome in both wrists, depression, and a shaking condition known as “essential tremor,” which is a physical and nerve disorder. Dr. Edwards opined that the former wife is unable to perform any work involving repeated lifting of twenty pounds or more.

The former wife underwent a personal interview and vocational evaluation with Lisa Hellier, who was accepted as a vocational expert. Hellier testified that the former wife explained her personal history, medical background, and physical limitations. With this information, Hellier concluded that the former wife did not have permanent work restrictions. Hellier conducted a labor market survey and prepared a vocational evaluation report. In formulating her conclusions, Hellier accounted for the former wife's eleventh-grade level of education and her relative lack of work experience outside the home. Test results indicate that the former wife functions at a twelfth-grade level and can pass the G.E.D. Hellier opined that without a high-school degree, the former wife could obtain employment in Jacksonville earning $15,196.00 annually.

Earning a G.E.D. and receiving additional vocational rehabilitative counseling and training skills would enhance the former wife's employability. Hellier opined that if she obtains a G.E.D. and receives skills training in using computers and sophisticated telephone systems, the former wife can secure full-time employment earning between $15,000.00 and $20,000.00 a year. The prospective available entry-level jobs included full-time, sedentary positions working as a receptionist or a hotel front desk agent and requiring occasional lifting of up to ten pounds. Free and low-cost vocational assistance is available for displaced homemakers.

The trial court found that the former wife was voluntarily unemployed and had been so throughout the marriage. The court determined that although the former wife qualified for several jobs that would pay $15,000.00 to $17,000.00 a year, she had made no effort to secure work.

The former husband's employer is BAE Systems. In his April 2011 amended financial affidavit, he listed his monthly gross salary or wages as $5,249.92 and his 2009 gross income as $68,000.00. After deducting taxes, health insurance, and temporary support, the former husband listed his net monthly income as $2,839.01. In the amended final judgment, the court listed the former husband's gross monthly income as $4,139.00, without explaining the discrepancy between this figure and the substantially higher amount listed in the financial affidavit.

The court evenly distributed the marital assets and liabilities. The value of the marital residence was $80,000.00, subject to a $2,000.00 loan for roof repairs/replacement that will be repaid from the proceeds of the sale of the home. The parties owned two motor vehicles. After the dissolution, the parties' main source of money was the employee savings and profit-sharing plan in the amount of $161,181.99.

The former wife stated her monthly need as $4,100.00, an amount the trial court deemed unrealistic. Given the former wife's voluntary unemployment status, the court imputed income to her in the approximate amount of $15,000.00 annually. The court found that the former wife's current actual need was $2,000.00 monthly, which the court awarded as bridge-the-gap alimony for twenty-four months. For the period beyond those twenty-four months, the court determined that the former wife would need, and the former husband had the ability to pay, $700.00 a month for durational alimony for a period not to exceed the twenty-seven-year marriage. Accounting for the equitable distribution, the court ordered each party to pay his or her own attorney's fees and costs (excepting the $9,600.00 the court had previously ordered the former husband to pay toward the former wife's temporary fees and costs).

II. Law & Analysis

A. Imputation of Income

For alimony purposes, trial courts can impute income to a voluntarily unemployed or underemployed spouse in determining the parties' earning capacities, sources of income, and financial circumstances. See§ 61.08(2)(e), (i), (j), Fla. Stat. (2011); Rabbath v. Farid, 4 So.3d 778, 781–82 (Fla. 1st DCA 2009); Freilich v. Freilich, 897 So.2d 537, 540 (Fla. 5th DCA 2005). The burden of proof is on the party seeking to impute income to the other spouse. Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005). Where a court imputes income to a spouse, the reviewing court must determine whether competent substantial evidence supports this decision. Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008).

Before the court can impute income, however, it “must conclude that the termination of income was voluntary” and “must determine whether any subsequent underemployment ‘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.’ ” Leonard, 971 So.2d at 267 (quoting Schram v. Schram, 932 So.2d 245, 249–50 (Fla. 4th DCA 2005)). The trial court must make specific findings regarding the source and amount of imputed income, which must be based on evidence of “employment potential and probable earnings based on history, qualifications, and prevailing wages.” Schram, 932 So.2d at 250;see Griffin v. Griffin, 993 So.2d 1066, 1067 (Fla. 1st DCA 2008).

The former husband presented evidence that would allow income to be imputed to the former wife. To explain her failure to seek outside employment over the years, the former wife contended that her debilitating, progressive, and observable medical conditions rendered her unable to work full-time. In weighing this evidence, the trial court deemed it relevant that the former wife claimed to have disabling conditions, yet she never applied for social security or disability. In this record, no physician has found the former wife to be medically disabled. To the substantial extent that these medical problems are external and observable, the trial judge had a superior vantage point to assess the former wife's demeanor and physical circumstances. See Kuvin v. Kuvin, 442 So.2d 203, 205–06 (Fla.1983); Severs v. Severs, 426 So.2d 992, 994–95 (Fla. 5th DCA 1983) (noting the advantages of the trial court's first-hand observations in exercising its discretion in family law proceedings). Competent substantial evidence supports the findings that without any additional credentials, the former wife can earn $15,196.00 annually in available jobs that will accommodate her medical limitations. After receiving vocational skills training and rehabilitation and earning a G.E.D., the former wife will be able to earn between $15,000.00 and $20,000.00 a year in suitable jobs that are available. Because the record supports the imputation of income, we affirm this part of the amended final judgment.

B. Alimony

The former wife had the burden to prove her actual need and the former husband's ability to pay alimony. Demont v. Demont, 67 So.3d 1096, 1101 (Fla. 1st DCA 2011). The trial court was required to make specific factual findings regarding these factors. § 61.08(2), Fla. Stat. (2011); Walker v. Walker, 85 So.3d 553, 554 (Fla. 1st DCA 2012). After the court determined that the former wife needs alimony and the former husband is able to pay, subsection (2) required the court to consider all the relevant factors enumerated therein in determining the proper type and amount of alimony. § 61.08(2)(a)-(j).

The Legislature has recognized that some spouses need transitional or “bridge-the-gap” alimony. See§ 61.08(5), Fla. Stat. (2011). The trial court heard evidence that the former wife will need a year or more to acquire the credentials that will render her more marketable in the workplace. Assessing her actual need as $2,000.00 monthly, the court awarded this amount in bridge-the-gap alimony for twenty-four months. Durational alimony, which is authorized by section 61.08(...