Pribble v. Pribble, 5D01-882.

• Decision Date: 14 December 2001
• Docket Number: No. 5D01-882.,5D01-882.
• Citation: 800 So.2d 743
• Parties: Brandye Denise PRIBBLE, Appellant, v. Jay PRIBBLE, Appellee.
• Court: Florida District Court of Appeals

800 So.2d 743

Brandye Denise PRIBBLE, Appellant, v. Jay PRIBBLE, Appellee.

No. 5D01-882.

District Court of Appeal of Florida, Fifth District.

December 14, 2001.

Robyn Bufford-Bennitt, Of Counsel: Bennitt & Bennitt, Birmingham, AL, for Appellant.

Kimberly A. Schulte, Leesburg, for Appellee.

COBB, J.

On this appeal, we affirm all points raised by the former wife with the exception of one which we feel merits discussion: whether the lower court erred in imputing income to the former wife for purposes of child support.

A final judgment of dissolution of marriage was rendered on February 21, 2001. At the time of trial the husband was age 36 and the wife was age 26. There were three minor children born of the marriage with the oldest being 7, the middle child being 4 and the youngest child almost 3 years old. The court found both parents to be fit and proper parents and awarded primary residential custody to the husband.

The husband had approximately six jobs during the marriage and the wife had ten. The most money ever made by the wife was $32,000 per year working for Chili's Restaurant. She was an assistant manager at the time. Apparently, the wife had started out as shift day worker at Wendy's and had been promoted to assistant manager. She quit Wendy's, was hired by Chili's, and participated in an assistant manager training program. The wife is a high school graduate and claimed that she had been making $25,000 a year on average at Wendy's. She also indicated she wanted to get out of the fast food industry.

At the time of trial, the wife was attending community college on a part-time basis attempting to receive a degree in English and eventually wished to go to law school. The wife conceded that it would take four or five years to get the college degree but that she was almost a sophomore.

At one point during the testimony, the court inquired of the wife:

COURT: Ma'am, and I don't mean to offend you in any way, but did you ever take the SAT and do you have—have you got some testing background that would lead us to believe that you may have a successful career opportunity in the legal profession? I mean, I don't think you can just score average SATs and go to a community college and anticipate—I'm sure there's an exception to the rule, but that is usually a pretty intellectually demanding type of situation.

PRIBBLE: Right.

COURT: So, I mean, have you looked into all that? Is it a realistic occupation?

PRIBBLE: It is a realistic occupation.

COURT: Well, what was your SAT scores, Ma'am?

PRIBBLE: I did not take the SAT. I did take the ACT, and I made in the high 20s on the ACT. And I have not taken the SAT test.

COURT: You're telling me you think you could go in and get a job at Wendy's for twenty-five thousand dollars a year gross right now?

PRIBBLE: Absolutely.

COURT: You left on good terms with Wendy's. It wasn't a—

PRIBBLE: I did.

COURT:—firing or they—nothing like that?

PRIBBLE: No. I left on good terms with Wendy's.

COURT: So I assume that if you could get a job with Wendy's, you could probably get a job with McDonald's, Burger King, Denny's—

PRIBBLE: I could.

COURT:—Steak-n-Shake, and maybe back into the Chili's, or the Olive Gardens, or the Red Lobsters.

Do you think you could get into those places, too, into management?

PRIBBLE: I could, but the hours— you have to work so many required hours per week, I could not attend school and still work and have any future.

I mean I don't want to be a fast food or a restaurant manager for the rest of my life. I want to make—I want to make real money. I mean, I don't know why I can't go to school and become an attorney and work part-time now, because once I get my English degree I can teach school and attend law school at night.

(T. 53-60).

At the end of the testimony, the court found that the wife was capable of earning $25,000 a year at Wendy's and found that her objective was not "very realistic":

Her objective, I don't see to be very realistic, one to another, and she has three children to support, and they need to be the primary responsibility. So I think she is intentionally not earning what she is capable of earning, and she's capable of earning $25,000.00 a year gross.

According to the wife her actual income was $9,216.00 gross per year working part-time.

In determining child support the court may impute income to a party according to the party's earning capacity rather than just considering income. Income will be imputed to an underemployed parent when such employment is found to be voluntary on that parent's part, absent physical or...