Huntley v. Huntley

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Huntley v. Huntley, 578 So.2d 890, 16 Fla. L. Weekly 1193 (Fla. App. 1991)
• Decision Date: 03 May 1991
• Docket Number: No. 90-2501,90-2501
• Parties: Merri Melody HUNTLEY, Appellant, v. Frank Dewyatt HUNTLEY, Appellee. 578 So.2d 890, 16 Fla. L. Week. 1193

Page 890

578 So.2d 890

Merri Melody HUNTLEY, Appellant, v. Frank Dewyatt HUNTLEY, Appellee.

No. 90-2501.

578 So.2d 890, 16 Fla. L. Week. 1193

District Court of Appeal of Florida First District.

May 3, 1991.

Russell L. Healey, Jacksonville, for appellant.

Richard W. Cobb, Orange Park, for appellee.

PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage following four hearings in which the evidence was often unintelligible and conflicting. The former wife asserts that the trial judge erred in refusing to award her sufficient lump sum alimony, any rehabilitative or permanent periodic alimony, or attorneys' fees. Finding merit in her arguments, we reverse in part and affirm in part.

A careful consideration of the overall scheme fashioned by the trial judge ¹ indicates that he was influenced by his findings that the parties were similar in age, education, and income, and that family resources were not dissipated by the husband's drug addictions. However, some of these findings are not supported by the record.

In determining alimony obligations, the primary criteria are the needs of one spouse and the ability of the other spouse to meet those needs. Wright v. Wright, 577 So.2d 1355 (Fla. 1st DCA 1991); Harrison v. Harrison, 573 So.2d 1018 (Fla. 1st DCA 1991); Scapin v. Scapin, 547 So.2d 1012 (Fla. 1st DCA 1989). Although the parties are of similar age and education, the record does not support the finding that they have similar earning capacities.

The parties were married in 1979, when they were both in their early twenties. They both earned AA degrees and began working for their present employers, the wife earning $22,000 as an airline reservationist and the husband earning $21,500 as head of maintenance for his father's convenience store company. He earned a real estate license in 1981 and began working in the family company's real estate department. He continued working for his father's affiliated companies, but developed several drug addictions, including a cocaine addiction. In 1987, after having been repeatedly hospitalized for his addictions, he was fired from his job with his father's company and found work as a route man for a peanut distributor. The parties were separated in November 1987. In 1989 the husband was rehired by his father, and by September 1989 he was earning $32,000.

By 1986, the wife was capable of earning $32,000, but she was not able to work fulltime because of time spent ministering to her husband's addictions. By 1987, she was not working at all, due to her contraction of chronic mononucleosis, and was receiving $22,000 in disability income. The record clearly shows that her ability to earn has been involuntarily limited by her husband's addiction and by her chronic physical illness, both of which caused her to take leaves of absence to care for the minor children, denied her the required rest essential to her recovery, and forced her to forego management opportunities.

In finding that the parties have similar earning capacities, the trial judge apparently imputed to the wife the income she would have received had it not been for her illness and her husband's addictions, both circumstances beyond her control. See Sec. 61.30(2)(b), Fla.Stat. (1987). He also refused to deduct federal income taxes from her gross monthly income, because he found that she had not yet been required to pay the taxes. In this respect he erred as a matter of law, because her disability income is subject to federal taxation. Sec. 61.30(3)(a), Fla.Stat. (1987); 26 U.S.C.A. Secs. 105 (1986) and 104 (1990). The wife's actual net monthly income is therefore about $400 less than the judge contemplated.

While income may not be imputed to the wife in this case, it clearly may be imputed to the husband. Income is liberally defined as any payment to an individual, regardless of source. See Section 61.046, Florida Statutes (1987); Zipperer v. Zipperer, 567 So.2d 916 (Fla. 1st DCA 1990). Income may be imputed to a former spouse for purposes of awarding alimony and child support, even if it is difficult to establish its source, and even where the obligation imposed entirely exhausts actual income. Scapin, 547 So.2d at 1013. The trial court may consider earning capacity as well as actual salary, impute an income according to what it determines the spouse could earn by use of his best efforts, and on that basis enter a support award as if the spouse were in fact earning the income so imputed. Id.

This record demonstrates that the husband can earn and actually does earn substantially more than the wife, and that during the marriage he received other income from his father in addition to his salary, so that he has the ability to pay a much greater proportion of the established needs of the minor children and the wife than determined below. The trial judge also erred in finding that marital resources were not dissipated by the husband's drug addictions. It is of no moment that some of the depletions were, in effect, neutralized by gratuitous payments of family expenses made by the husband's father.

Given the special circumstances involved in this case, we find that the wife is entitled to an equitable share of all the marital assets, including those dissipated by the husband's addictions. The lump sum award to the wife of the net proceeds from the sale of the marital home was clearly justified, given the apparently precarious nature of the husband's employment status. Absent such an award,...