Davis v. Davis, 96-828

• Decision Date: 18 April 1997
• Docket Number: No. 96-828,96-828
• Citation: 691 So.2d 626
• Parties: 22 Fla. L. Weekly D990 Larry R. DAVIS, Appellant, v. Jeanette V. DAVIS, Appellee.
• Court: Florida District Court of Appeals

Page 626

691 So.2d 626

22 Fla. L. Weekly D990

Larry R. DAVIS, Appellant, v. Jeanette V. DAVIS, Appellee.

No. 96-828.

District Court of Appeal of Florida Fifth District.

April 18, 1997.

Michael K. Poe of Poe & Poe, P.A., Melbourne, for Appellant.

Maureen M. Matheson of Reinman & Wattwood, P.A., Melbourne, for Appellee.

PETERSON, Chief Judge.

Larry R. Davis appeals a court order requiring him to pay permanent periodic alimony based upon an imputation of income. The specific issue he raises is whether the trial court erred by imputing income to him as though he were gainfully employed when in fact he had been retired for over ten years.

Larry left school in the ninth grade, began a naval career as a teenager in 1957, and married Jeanette in 1961. Two daughters and a son were born of the marriage, all of whom were born about a year apart. His duties often kept him from home, including a 13 month tour in Vietnam. In 1977 he retired and found a job as a tugboat master with the Panama Canal Company in 1978. He retired from that job in 1984. At the time of trial, Larry was 55, suffered from arthritis in his hands and knees, and appeared to have limited, if any, employment potential.

Jeanette similarly has limited employment potential as she has never worked outside the home. Her health has not been good although her medical expenses have decreased and her past surgeries for cancer had been successful. Continuing periodic examinations are required to monitor for cancerous growths. She is concerned about future availability of health insurance once coverage terminates through Larry's sources.

The trial court equitably distributed the parties' assets. Larry's combined military and civil service pensions were allocated at $1,077 per month to Jeanette and $1,428.42 to Larry. The marital domicile with a value of $155,000 was to be sold and the proceeds evenly split. The court further ordered Larry to pay permanent periodic alimony of $525 per month based upon an imputation of income of $1,200 per month.

In awarding alimony, the court must consider the need for support of one spouse and the ability of the other to pay. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). The ability of a spouse to pay alimony must be based on present ability. It is improper for a court to look to past earnings or speculate on future earnings. Olds v. Olds, 555 So.2d 883 (Fla. 2d DCA 1990); Kernan v. Kernan, 495 So.2d 275 (Fla. 5th DCA 1986). A court, however, may impute income upon a showing that there is a capability to earn more by the use of more diligent efforts. Gildea v. Gildea, 593 So.2d 1212 (Fla. 2d DCA 1992); Brooks v. Brooks, 602 So.2d 630, 631 (Fla. 2d DCA 1992). Stated differently, the court may impute income only if the party has the ability to remedy the situation. Gildea; see also Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991) (court must consider recent work history, occupational qualifications, and prevailing wages when imputing income).

The trial court's finding that Larry is "voluntarily unemployed, but could earn $1,200.00 per month based on his skills, past work and investment talents," is unsupported by the evidence in the record. In fact, the record suggests otherwise. See Fusco v. Fusco, 616 So.2d 86 (Fla. 4th DCA 1993) (lack of competent substantial evidence in record to support imputing additional income requires deletion of permanent alimony based upon such imputed income). While it is true that Larry has been voluntarily unemployed since 1984, there is no evidence that he has any skills which will make him employable in today's market. One witness testified that tug masters still serving in Panama were older men in their fifties and late forties and that there had been no new hiring in Panama for some time due to a treaty signed with Panama. Regardless, it seems that Larry will no longer be able to work as a tug master due to his arthritis. In review, Larry has...