Gruber v. Gruber, 2D02-4066.

• Decision Date: 15 October 2003
• Docket Number: No. 2D02-4066.,2D02-4066.
• Citation: 857 So.2d 329
• Parties: Daniel Thomas GRUBER, Appellant, v. Norea Gayle GRUBER, Appellee.
• Court: Florida District Court of Appeals

857 So.2d 329

Daniel Thomas GRUBER, Appellant, v. Norea Gayle GRUBER, Appellee.

No. 2D02-4066.

District Court of Appeal of Florida, Second District.

October 15, 2003.

Jon C. Kieffer of Kieffer & Rahter, P.A., St. Petersburg, for Appellant.

Norea Gayle Gruber, pro se.

SILBERMAN, Judge.

Daniel Gruber (the Former Husband) appeals an order entered on his supplemental petition for modification of alimony. Although the trial court reduced the Former Husband's alimony obligation to Norea Gruber (the Former Wife), he contends that the trial court should have terminated his alimony obligation. Because the trial court improperly imputed income to the Former Husband, we reverse the trial court's order and remand for further proceedings.

The parties had a long-term marriage of twenty-two years. In the final judgment of dissolution of marriage rendered on March 10, 2000, the trial court ordered the Former Husband to pay $350 per week as permanent periodic alimony.

In May 2001 the Former Husband filed a supplemental petition for modification of alimony, alleging that he had a substantial change of circumstances because he was diagnosed with an abdominal aortic aneurysm and could no longer work. An evidentiary hearing was held on the supplemental petition in July 2002.

At the time of the hearing the Former Husband was fifty-nine years old, his education consisted of a GED, and he had previously worked for a lawn maintenance business. The Former Husband submitted a report by Dr. Ralph DeMatteis from April 2001 which states, "In my opinion, I think this patient is totally disabled, particularly as far as manual labor." In June 2001 Dr. DeMatteis performed surgery to repair the aneurysm. Dr. Riad Doss also treated the Former Husband. In a deposition taken in June 2002, Dr. Doss testified that the Former Husband was unable to do any kind of work, even sedentary work. Dr. Doss explained that because of the surgery, the Former Husband has an artificial aorta tube which limits the flexibility of his circulatory system. Dr. Doss opined that the Former Husband would never be able to work again due to the surgery and the Former Husband's hypertension, borderline congestive heart failure, and asthmatic bronchitis. The Former Husband also established that the Social Security Administration determined that he was disabled as of April 2001, and it awarded to him disability benefits of $1063 per month. During his testimony, the Former Husband admitted that sometime after the surgery he had been on a riding lawnmower for about five minutes, he made a trip to Ohio by plane for a relative's birthday, and he drove a car to the hearing that day.

After the conclusion of the testimony, the trial court stated that the Former Husband "is probably capable of doing something to earn some income. Common sense would just indicate that to me. What it is I don't know." In its written order, the trial court noted the Former Husband's testimony as to several activities that he had performed and commented that the Former Husband's behavior was extremely curious for someone described as completely disabled. The trial court then stated as follows:

Notwithstanding the unchallenged deposition testimony of Dr. Doss, this Court doubts that the Former Husband is unable to obtain some form of employment that could accommodate his physical concerns. Granted, he can no longer engage in the type of physical lawn-maintenance

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