Griffin v. Griffin

• Decision Date: 27 July 2005
• Docket Number: No. 2D04-1877.,2D04-1877.
• Citation: Griffin v. Griffin, 906 So.2d 386 (Fla. App. 2005)
• Parties: Michael Lee GRIFFIN, Appellant, v. Theresa M. GRIFFIN, Appellee.
• Court: Florida District Court of Appeals

906 So.2d 386

Michael Lee GRIFFIN, Appellant, v. Theresa M. GRIFFIN, Appellee.

No. 2D04-1877.

District Court of Appeal of Florida, Second District.

July 27, 2005.

Eileen H. Griffin of Griffin & Associates, P.A., Brandon, for Appellant.

Deborah Cerminaro Eldridge of Eldridge Law Office, P.A., St. Petersburg, for Appellee.

LaROSE, Judge.

This is an appeal from a judgment dissolving a marriage. Michael Lee Griffin, the Husband, challenges the trial court's imputation of income and the amount of permanent periodic alimony awarded to him. The trial court erred in imputing full-time income to the Husband without finding that he could hold a full-time job. Additionally, the alimony award appears inadequate in light of the Husband's claimed needs and the Wife's ability to pay. Accordingly, we reverse for reconsideration of the amount of income to impute and the amount of alimony to be awarded to the Husband.

Imputation of Income

"A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts." Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997). The trial court's imputation of income for the purpose of determining spousal support must be based on substantial, competent evidence. Gruber v. Gruber, 857 So.2d 329 (Fla. 2d DCA 2003); Connell v. Connell, 718 So.2d 842, 843 (Fla. 2d DCA 1998); Brown v. Brown, 784 So.2d 464 (Fla. 5th DCA 2001). Specific findings of fact must support the imputation decision. Zubkin v. Zubkin, 823 So.2d 870, 871 (Fla. 5th DCA 2002).

Because of a downturn in the insurance industry, the Husband's income decreased gradually during the fourteen-year marriage from $80,595 in 1991 to $45,415 in 1995. His income plummeted to zero following a 1996 automobile accident. The Husband remained unemployed with no income at the time of trial in 2002. At trial, the Husband presented evidence that he was unable to work outside the home due to chronic pain and depression. The Wife argued that the Husband could work.

The trial court considered testimony from the Husband's neurologist, Dr. Martinez, including the neurologist's testimony from a previous federal court proceeding.¹ Dr. Martinez testified that the Husband was totally disabled. He opined that the Husband was unable to work full-time, even in a light-duty sedentary job.² A vocational rehabilitation expert testified that the Husband could return to light and sedentary work, and that he could place the Husband in such a job based on the Husband's vocational skills. The Husband testified that his psychiatrist recommended that he find a part-time, flexible job that would accommodate his limitations.

Despite his pain and depression, the Husband continued to assist the Wife with various household chores and child-rearing, as he had throughout the marriage. He also helped her with her Party Lite business by lecturing, stuffing envelopes and handling mail, packing orders, moving five-to-ten-pound boxes, and running errands.

The trial court found that the Husband's activity level called his subjective complaints into question and concluded that the Husband should be working. The trial court imputed income to him in the amount of $40,000 per year. Based on the Husband's last full-time income level of $45,415, the trial court obviously contemplated that the Husband could be employed on a full-time basis. Yet, the amended final judgment reflected the trial court's "concern regarding the Husband's ability to return to work full time versus part time." These expressed concerns, coupled with Dr. Martinez's testimony, demonstrate a lack of substantial, competent evidence to support a finding that the Husband could obtain full-time employment earning $40,000 per year.

The record is sufficient, however, for the trial court to have imputed some income to the Husband. See, e.g., Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004). We reverse the amount of income imputed to the Husband and remand to the trial court for further proceedings to establish a level of imputed income for the Husband supported by substantial, competent evidence. Because over two years have passed since entry of the amended final judgment, the trial court may find it appropriate to take additional evidence regarding the Husband's employment prospects. See Stewart v. Rich, 664 So.2d 1145, 1149 (Fla. 4th DCA 1995).

Alimony

The trial court awarded the Husband $3000 per month, or $36,000 per year, in permanent periodic alimony. The primary criteria to determine alimony are the requesting party's need coupled with the responding party's ability to pay. Pirino v. Pirino, 549 So.2d 219, 220 (Fla. 5th DCA 1989). A purpose of permanent, periodic alimony is to allow the requesting spouse, consistent with his needs, to maintain the standard of living established by the parties during the marriage and to ensure that, viewing the totality of the circumstances, one spouse is not "shortchanged." Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980) (citing § 61.08(2), Fla. Stat.). The marital standard of living is generally that last shared by the spouses. Cardillo v. Cardillo, 707 So.2d 350, 350 (Fla. 2d DCA 1998). Accordingly, the trial court must consider all of the following factors in determining a proper alimony award:

(a) The standard of living established during the marriage;

(b) The duration of the marriage;

(c) The age and the physical and emotional condition of each party;

(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each;

(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment;

(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party;

(g) All sources of income available to either party.

§ 61.08(2), Fla. Stat. (2003); Yauch v. Yauch, 901 So.2d 920 (Fla. 2d DCA 2005).

At the time the petition for dissolution was filed, the Husband and Wife had been...