Burke v. Burke
| Decision Date | 03 September 2021 |
| Docket Number | No. 2D20-1398,2D20-1398 |
| Citation | 330 So.3d 84 |
| Parties | Christopher L. BURKE, Appellant, v. Maureen Kelly BURKE n/k/a Maureen Bridget Kelly, Appellee. |
| Court | Florida District Court of Appeals |
Timothy W. Weber of Weber, Crabb and Wein, P.A., Saint Petersburg, for Appellant.
Gary E. Williams of The Law Firm for Family Law, Clearwater, for Appellee.
Having reviewed the record and the arguments of the parties carefully, we cannot conclude that the final judgment dissolving the parties’ long-term marriage and awarding Maureen Burke (the Former Wife) permanent, periodic alimony in an amount well within Christopher Burke's (the Former Husband) ability to pay reflected a ruling "no reasonable [judge] would" make. See Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980) (quoting Delno v. Mkt. St. Ry. Co. , 124 F.2d 965, 967 (9th Cir. 1942) ); see also Librizzi v. Librizzi , 228 So. 3d 593, 595 (Fla. 2d DCA 2017) ; Johnson v. Johnson , 454 So. 2d 797, 799 (Fla. 4th DCA 1984) ().1 The circuit court had the benefit of observing first-hand the witnesses and their credibility. The court concluded that the Former Wife "was not underemployed"—a not unreasonable determination since the Former Wife is now a sixty-year-old woman who had been a stay-at-home mother for the parties’ two children and only worked part-time for the fourteen years leading up to the trial. The court also rejected the opinion of Former Husband's vocational expert concerning the Former Wife's future employment prospects as a teacher.2 The court was free to make those evidentiary assessments. As an appellate court, we are not free to reweigh them, Meyers v. Meyers , 295 So. 3d 1207, 1213 (Fla. 2d DCA 2020), and certainly not in the guise of a purported "legal error."
For what the dissent styles as "legal error"—essentially, that imputation of income ought not to apply to alimony under Florida Statute section 61.08 in the same fashion as it does to child support under section 61.30(2) ()—is, at bottom, simply a disagreement with the circuit court's application of the facts to the law.3 It also reflects a novel legal argument that, for better or worse, was neither raised below nor in this appeal. See W.R. Grace & Co.-Conn. v. Dougherty , 636 So. 2d 746, 749 (Fla. 2d DCA 1994) ; Anheuser-Busch Cos. v. Staples , 125 So. 3d 309, 312 (Fla. 1st DCA 2013) (); Polyglycoat Corp. v. Hirsch Distribs., Inc. , 442 So. 2d 958, 960 (Fla. 4th DCA 1983) ( ).
Finding no merit in any of the arguments the Former Husband has raised, we affirm the final judgment in all respects.
Affirmed.
In this appeal from a final dissolution of marriage, the Former Husband appeals, among other things, the award of $2,500 per month in permanent, periodic alimony to the Former Wife. The trial court arrived at its conclusion that the Former Wife was in need of that level of alimony based on its conclusion that it was not permitted to grant the Former Husband's request to impute to her a higher level of income than she had been earning at the part-time job she had held for the last fourteen years. Because I conclude that the trial court failed to meaningfully consider the Former Wife's earning capacity, vocational skills, and employability—as it was required by statute to do—I dissent.
The Former Wife admitted she was not incapable of working full-time but expressed a preference for continuing to work part-time instead, and she had not made any effort to obtain full-time employment or supplement her income with an additional part-time job. While never having utilized her bachelor's degree in elementary education to obtain a full-time teaching position, for the past fourteen years she has worked as a part-time health instructor for elementary-aged, public school children for $25 per hour when schools were in session. After graduating from college in the 1980s, the Former Wife had worked as a full-time flight attendant until she left the workforce for a four-year hiatus following the birth of the parties’ second child in 1999, after which she began to work part time when her (now adult) children were all in school. The Former Husband is a police officer who expressed a desire to reduce or eliminate the overtime hours that he worked when his children were young and that he has worked ever since.
The trial court explained its position that it was not permitted to contemplate the possibility that the Former Wife is capable of earning more than she presently earns or has earned in the recent past, and the trial court concluded that the potential to acquire additional credentials in order to increase her chances of realizing a higher income was similarly forbidden as a factor in its determination of the alimony award:
The Court reviewed the testimony and reports of the vocational evaluator and considered Husband's request that the Court impute income to the Wife. The Court notes that Ms. Burke has been employed for an extended period of time with her current employer, 14 years. Since the Wife has worked in her current employment for that period of time, that is her level of employment; the Wife is not under-employed. The request to impute income to her at a level beyond which she has ever earned is not appropriate based on the facts of this case. The case law submitted to the Court by the parties’ attorneys indicates that the Court cannot impute to the Wife an income above that which she has ever earned. The Court also does not accept the vocational evaluator's suggestion that the Wife can work as a teacher today, given the fact that, while the Wife has the requisite education, she does not have the certificates that are required. Therefore, the Court is not imputing a teacher's income to the Wife either.
By contrast, the trial court concluded that the Former Husband should be required to continue to work overtime, because the Former Husband had worked overtime in the past:
Mr. Burke has the ability to pay alimony to the Wife. Using a present snapshot of Mr. Burke's ability to pay, indicates th[at] Mr. Burke has gainful employment. He is earning enough money to have a surplus. While Mr. Burke testified that he did not want to work overtime, he also testified that he has worked overtime for almost 20 years. This is a sufficient period of time for the Court to consider his overtime as part of his income. Mr. Burke has the ability to pay to the Wife the amount of $2,500 per month in permanent periodic alimony.... This amount of alimony helps bring the two parties into a position as close to the level of the lifestyle that the parties enjoyed during the marriage as their financial circumstances permit.
The trial court's reasoning was inconsistent with its statutory charge. Section 61.08 requires that, in determining whether to award permanent alimony, which is designed to "provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage," the trial court must determine "whether either party has an actual need" for it. § 61.08(2), (8), Fla. Stat. (2020) (emphasis added). Contrary to the rationale expressed in the trial court's order, the statute indicates that it is the "needs and necessities of life" that should be maintained as they were "during the marriage," not necessarily the parties’ respective contributions toward financing those needs and necessities. See § 61.08(8). "[A] court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts." Solomon v. Solomon , 861 So. 2d 1218, 1220 (Fla. 2d DCA 2003) (emphasis added) (quoting Koeppel v. Holyszko , 643 So. 2d 72, 75 (Fla. 2d DCA 1994) ).
The language of the alimony statute plainly contemplates the possibility that a spouse might be expected to obtain additional or more remunerative employment, regardless of what she might have earned in the past. Rather than focusing on the parties’ current income level or what income the parties have historically earned, the statute requires consideration of their "earning capacities "; rather than confining the focus to where the parties are currently employed or the nature of their past employment, the statute requires consideration of the "employability " of the parties, as well as their "education levels" and "vocational skills." See § 61.08(2)(e) (emphasis added). And, rather than foreclosing the possibility that a spouse might be expected to obtain additional training or credentials in order to adequately contribute to her own living expenses, the statute requires consideration of, "when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to...
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