Porter v. Porter, 1D03-2124.

• Decision Date: 21 May 2004
• Docket Number: No. 1D03-2124.,1D03-2124.
• Parties: Michele T. PORTER, Appellant/Cross-Appellee, v. Todd A. PORTER, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

873 So.2d 538

Michele T. PORTER, Appellant/Cross-Appellee, v. Todd A. PORTER, Appellee/Cross-Appellant.

No. 1D03-2124.

District Court of Appeal of Florida, First District.

May 21, 2004.

Cindy L. Lasky, of the Law Offices of Ned I. Price, P.A., Jacksonville, for Appellant/Cross-Appellee.

Nancy N. Nowlis, Jacksonville, for Appellee/Cross-Appellant.

BROWNING, J.

The former wife appeals, and the former husband cross-appeals, a final judgment of dissolution of marriage. The former wife contends that the trial court abused its discretion in denying permanent periodic alimony and rehabilitative alimony. The former husband asserts that the court abused its discretion by including the following reservation in Paragraph 4 of the final judgment:

The Court retains jurisdiction to award permanent periodic alimony in the future in a modification action upon the showing of a permanent, material, significant, and involuntary change of circumstances.

Concluding that the trial court decided the issue of alimony based partly on the erroneous imputation of income to the former wife without supporting factual findings and partly on a miscalculation of the amount of equity in the marital residence, we reverse the final judgment in part and remand for reconsideration of the claim for alimony. On remand, the court is instructed to strike the objectionable sentence from Paragraph 4. See Llopis v. Llopis, 731 So.2d 719, 720 n. 2 (Fla. 3d DCA 1999); Roy v. Roy, 522 So.2d 75 (Fla. 4th DCA 1988).

The parties were married in January 1989, had two children, and separated for the final time after 12-1/2 years of marriage. In her counter-petition for dissolution, the former wife sought alimony (temporary, lump-sum, permanent periodic, and/or rehabilitative), inter alia. She requested sole interest and exclusive ownership and possession of the marital residence as lump-sum alimony. The fair market value of the marital home was $212,000.00.

The parties enjoyed a comfortable standard of living during the marriage. The former husband was a program manager in the United States Navy. The trial court accepted the figures in his amended financial affidavit listing his respective gross and net monthly incomes as $7,354.87 and $5,286.59. During the marriage, the former husband was promoted from an ensign earning $18,000.00-$20,000.00 a year to a Senior O-4 lieutenant commander earning more than $93,000.00 a year. He was slated for a promotion to O-5, including an increase in base pay, but that was on administrative hold. The testimony indicated that, more likely than not, he would be promoted to commander once the divorce was finalized.

The former wife has a B.S. degree in aerospace engineering, earned in 1987 from the University of Southern California. She worked for McDonnell Douglas as an aerospace engineer until her marriage in 1989 and then as a systems engineer for Lockheed Missiles & Space until the birth of the parties' first child. She also was a reserve officer in the United States Air Force for eight years after college graduation. The former wife testified that her last annual salary amount at Lockheed was in the $33,000.00-$37,000.00 range, whereas the former husband testified that, to his knowledge, the former wife's last annual salary was in the $40,000.00-$45,000.00 range. When the children were born, the former wife became a full-time homemaker and assumed primary responsibility for caring for the children and maintaining the family home. The former husband was the primary wage-earner in the family. The parties mutually agreed that the former wife would not work outside the home until the children (born in February 1992 and August 1997) started school. The former wife's financial affidavit stated that as of November 2002, she was unemployed, earned zero income, and had no pension. Her sole source of financial support during the pendency of the dissolution proceedings was the former husband's temporary support payments.

The former wife testified at the final hearing that having been out of the aerospace engineering field for 10-11 years, she could not return there because she would have to be paid more than a recent graduate in this field, yet she lacked recent experience, technological training, and computer expertise. She believed that her career in aerospace engineering would be over even if she were to earn a master's degree, for she would be overqualified but would not have enough experience. She testified that Boeing had just laid off 30,000 employees and that other employers in the field were cutting back their workforces. She had looked at newspaper and Internet listings for jobs in her field in North Florida and Maryland (where the former husband was transferred after the parties' final separation) and had found none for someone with her particular experience and circumstances. Although Jacksonville had a re-work facility, the former wife testified that the naval base did not have engineers. She was unaware of any available aerospace engineering positions in Jacksonville. She testified that aerospace engineering jobs are located predominantly in California, with a few in the Washington, D.C., area and one small facility in Orlando. When asked whether the average annual pay for engineers is in the $40,000.00-$50,000.00 range or higher, the former wife testified that the salary depends on one's level of experience. She stated that the starting annual salary range is $28,000.00-$30,000.00. On the other hand, the former husband testified that he was fairly familiar with the available jobs due to the aerospace Navy contract work done at his base. He stated that his Internet job search had shown about 144 "hits" for persons with engineering experience, e.g., field space engineering and system integration in Baltimore, Maryland. He said that an Internet "hit" disclosed fewer (about 60) available jobs in the field in Jacksonville, but he had found some general engineering positions available with annual salary ranges of $40,000.00-$80,000.00 for persons with engineering experience.

The former wife testified that she wanted to leave her major field and earn a master's degree either in education or in teaching, with the goal of teaching mathematics and science at the middle-school level. She testified that she would need 70-75 credit hours at a total cost of $9,375.00 to obtain a master's degree in education at the University of North Florida (U.N.F.); or 51-53 credit hours at a total cost of $15,300.00 for a master's degree in teaching at Jacksonville University (J.U.). To enroll in such a program, she would have to obtain a college transcript, take the G.R.E., and apply to and be accepted at a school, none of which she had done as of the date of final hearing. The former wife testified that she would need 2 ½ to 3 years' education at J.U. or close to 4 years' education at U.N.F. because she lacks an undergraduate background in education. She testified that the starting salary for a middle-school teacher in the area was $29,000.00 and was slightly less for an elementary-school teacher. Neither party presented a vocational expert. Assuming three semesters per calendar year, the court found that the former wife could complete the J.U. requirements in four semesters.

The trial court found that the former wife did not have a sincere desire to obtain a master's degree in teaching or education or to become a teacher. The court found that her rehabilitation plan would not provide the former wife with an...