Greene v. Greene

• Decision Date: 11 February 2005
• Docket Number: No. 5D03-3613.,5D03-3613.
• Citation: 895 So.2d 503
• Parties: Barbara Michelle GREENE, Appellant, v. Robert Charles GREENE, Appellee.
• Court: Florida District Court of Appeals

895 So.2d 503

Barbara Michelle GREENE, Appellant, v. Robert Charles GREENE, Appellee.

No. 5D03-3613.

District Court of Appeal of Florida, Fifth District.

February 11, 2005.

Rehearing Denied March 17, 2005.

R.W. Simmermon, Winter Park, for Appellant.

Steven J. Guardiano, Daytona Beach, for Appellee.

SHARP, W., J.

Barbara Michelle Greene (Michelle) appeals from a final judgment which dissolved her marriage to Robert Greene (Robert). She argues the trial court erred in denying her permanent periodic alimony, or lump sum alimony, or rehabilitative alimony, or some combination of those awards. She also argues the court erred in calculating the child support obligations of Robert for the parties' three minor children by imputing to Michelle a net monthly income of $2,837.35 per month. We agree.

Robert also sought to cross-appeal the trial court's award of attorney's fees to Michelle, based on the disparity in their earnings. Since the trial court reserved jurisdiction to determine the amount, we declined to address this issue as non-final. However, on remand the trial court may re-address that issue, should it be appropriate, after devising an alimony award for Michelle.

The record establishes that the parties married on May 16, 1987 and separated on March 29, 2002, a fifteen-year marriage. They have three minor children: a daughter, Lindsey, born in 1989, a son, Ryan, born in 1993, and a son, Matthew, born in 1998. The parties stipulated that Michelle would be the primary residential parent and Robert would have reasonable visitation. Left to be resolved at trial were the equitable distribution of the parties' marital assets and liabilities, alimony for Michelle, the amount of child support to be awarded, and an award of attorney's fees for Michelle.

Robert was 40 years old at the time of the trial, with no health problems. He worked for Lockheed Martin during the parties' marriage and was promoted three and one-half years prior to the dissolution, to the position of purchasing manager in the missiles and fire control division. He earns a gross income of $6,055.00 per month (more than $72,000 per year), with a net monthly income of $5,062.00. These figures do not include merit raises (5% of his salary), which he received during the past five years, and benefits including health insurance and a matching 401K pension program.

Michelle was also 40 years old at the time of the trial. She has a Bachelor of Science degree in nursing and she worked as a registered nurse full time, at the beginning of the marriage, in a hospital neonatal intensive care unit. Six months after the parties' marriage, she began working only part time. She was under stress and had suffered two miscarriages and the parties agreed she should not work full time. After the children were born, the parties made a joint decision she would only work part time, during the weekends, so that she could care for the children during the week and he would care for them while she worked.

Six years prior to the parties' separation, Michelle stopped working even part time. The parties made a joint decision she would work only long enough to pay off the mortgage on their home, and then she would stay home and care for the children. Robert testified he agreed to this to accommodate Michelle's wishes. In any event, she did so and this event coincided with the time when Ryan was diagnosed with pervasive developmental delay and ultimately, autism.¹

Michelle and others testified that because Michelle's license to practice nursing had expired, she was not able to immediately re-enter the nursing profession. She would have to pay a $200.00 fee to the state Board of Nursing and another such fee to the National Council of State Boards, study for a Board exam similar to the one she passed after graduating from college, and sit for and pass the examination.

However, Michelle testified she did not want to re-enter the nursing profession because of the stress and long hours required, and because of various health problems she suffered which would make nursing difficult for her.² Further, she testified she could not work full time as a nurse and care for her three children. The children, she testified, have special needs and require her full-time presence in the home.

The evidence established that Ryan, age 10 at the time of trial, has mild to moderate autism and an IQ of 67. This condition affects his ability to interact with other people and impacts his emotional reaction to events. He is prone to having outbursts and tantrums, and does not adjust to or accept change in his routine. Michelle testified Ryan requires assistance in bathing, dressing, cutting up food, tying his shoes, and doing his homework. He also suffers from migraine headaches and endures 2-6 hours of vomiting and screaming once a month. He missed 7 days of school last year, which required Michelle to stay home with him.

Ryan is in special education classes for all academic subjects, and needs constant supervision, almost one-on-one.³ He did not do well in public summer school classes he attended the year of the trial, because of the lack of close supervision and the change in his routine. His behavior has become a problem.

Ryan's special education teacher who worked with him during summer school,⁴ corroborated Michelle's testimony concerning Ryan's lack of social skills and inability to complete his work individually without assistance or supervision. Robert testified he thought Ryan would do well in a normal after-school program, although that was disputed by Michelle and Ryan's teacher. No one at the trial knew of any after-school or summer-school programs which would meet Ryan's special needs.

The evidence also established that Lindsey, although intelligent and in the gifted program, has been diagnosed with obsessive-compulsive disorder and is a fearful, anxious child. She takes medications and sees a psychologist every-other week.⁵ She has panic attacks and hyperventilates. She is seeing a cardiologist because when she was 6 or 7 years old, she had tachycardia and was treated for a year with medication. She missed 13 days of school last year and Michelle had to stay home with her. She also often needs her mother's comfort and reassurance during the night time.

Matthew is healthy, happy and well adjusted. However, he is a young child just entering kindergarten, at the time of the trial.

Michelle testified about what her day as the care-giver for these children was like. It starts at 5:30 a.m., ironing clothes and preparing lunches, making breakfast, and dressing and grooming the boys. At 7:30 a.m., she drives Ryan and Matthew to school and returns to pick them up in the early afternoon. In the interim, she does grocery shopping, cleans house, handles lawn care and runs errands, including taking the children to doctor's appointments. In the afternoon, she brings the boys home and gives them a snack. They may go swimming or play. She testified she cannot leave Ryan alone for extended periods of time and does not permit him to play outside alone. In the late afternoon, she helps them with homework, prepares dinner and gets them ready for bed. She also picks up Lindsey some afternoons when Lindsey participates in after-school activities, such as the band, and cannot come home on the school bus. The children also want to participate in extra-curricular activities such as gymnastics, Karate, and piano lessons, which will require Michelle's supervision and transportation. They have enjoyed such activities in the past, but Michelle testified she would need extra financial support to pay for them.

Michelle testified that if she had to work, even part time, she would have to hire a nanny to handle the child care-taking and homemaking activities she performs. She investigated the cost of hiring such a person with a professional employment association and was told it would be a minimum of $2,000.00 per month. No one outside of the immediate family has ever watched or babysat for Ryan.

The trial court equally divided the parties' marital liabilities, which included the debt obligation ($11,039.42) owed on Robert's 2001 Nissan Frontier truck, which he valued at $10,070.00. Although the judgment did not expressly so provide, Robert received the truck and Michelle received her Voyager mini-van, in poor repair, which she valued at $700.00 (trade-in value from a dealer).

The court equally divided the parties' household furnishings, U.S. savings bonds valued at $1,064.28, a checking account balance of $1,345.74, and the IRS Child Tax Credit of $1,200.00. It also found that Robert's 401K plan was worth $116,704.49, as of the date of filing the dissolution petition and ordered it equally divided via entry of a Qualified Domestic Relations Order. It also computed the value of Robert's Deferred Compensation Plan and the value of that portion earned by him during the marriage and awarded Michelle one-half of that sum ($500.58 per month) payable on his retirement. Thus there were minimal cash assets distributed to the parties.

The major marital asset of the parties was their marital residence. The parties did not obtain an appraisal of the home and could not agree on its value. Michelle testified it was worth $230,000 and Robert testified it was worth $250,000. The court ordered the residence to be placed for sale at $250,000, and that all offers which the parties did not agree to accept or reject would be submitted to the court for consideration. The residence was subject to a mortgage of approximately $94,000. The court ruled that the parties would equally divide the proceeds after the sale of the residence and in the interim, both would share equally the liability for mortgage payments, but Michelle and the children could continue to live there until it was sold.

Assuming the residence sells for $250,000, the parties will probably realize about $133,500 or $66,750 each.⁶ That, together with...