Schlagel v. Schlagel
| Decision Date | 13 February 2008 |
| Docket Number | No. 2D07-504.,2D07-504. |
| Citation | 973 So.2d 672 |
| Parties | Erin S. SCHLAGEL, Appellant, v. Frank E. SCHLAGEL, Appellee. |
| Court | Florida District Court of Appeals |
Erin Schlagel (the Wife) appeals, pro se, a final judgment of dissolution of marriage. She contends that the trial court erred in imputing income to her; in failing to require Frank Schlagel (the Husband) to pay permanent, periodic alimony; and in valuing and distributing the marital assets. We affirm the imputation of income but reverse for the trial court to award at least nominal, permanent, periodic alimony. We affirm the remainder of the final judgment, including the equitable distribution, without discussion.
The parties had a long-term marriage of over twenty-one years. They have one son, who was nineteen years old and in college at the time of the final hearing. The record supports the trial court's findings as to the Husband's 2005 gross annual income of $69,500 and that the parties had a lifestyle that, was "reasonably modest, and by no means lavish." At the time of the final hearing, the Husband was forty-six years old and a radiation therapist. The Wife was forty-nine years old and was unemployed. She is Turkish but attended college and law school in the United States, receiving both her undergraduate and law school degrees. The court found that the parties "appeared physically healthy and able to work." The court recognized that the Wife testified that she suffered from depression, but the court noted that she had not put on any evidence that the condition was debilitating or would adversely impact her ability to function socially or to work.
The Wife took care of the parties' son during the marriage, but she had worked outside the home. From 1994 to 1998 her income ranged from a low of $12,226 to a high of $26,683. In 1999, when the parties' son was approximately twelve years old, the Wife decided to attend law school in Mississippi, where the parties were residing at the time. The Wife graduated from law school in 2002, and the parties moved to Florida. The Wife testified that she unsuccessfully attempted the Florida Bar Exam four times and gave up on the idea of being a lawyer. She has had minimal employment since 2000.
The Wife sought $3000 per month in permanent, periodic alimony and presented evidence that her monthly expenses were $2555, not including a mortgage or rent payment. The Husband was making the mortgage payments on the marital home, and the Wife provided no evidence of what her housing costs would be if she moved from the marital home. The Husband testified that he wag renting an apartment for $450 per month. Because the Wife presented no evidence on housing costs, the court used the Husband's housing cost of $450 and added that to the $2555 to determine the amount of the Wife's need.
The parties stipulated that they would introduce into evidence the report of the Husband's vocational expert, Stephen Cooley, without having him testify at the final hearing. The trial court relied on the vocational report to impute income to the Wife. The trial court's detailed oral findings reflect that the court rejected the projections in the report as to income that the Wife could earn from career opportunities that were available if she were licensed by the Florida Bar. Instead, the court accepted the report's conclusions regarding career opportunities available to a person with a law degree but not Florida Bar licensure. The report included a local labor market survey that reflected various employment options that did not require admission to the Florida Bar as a precondition to employment. The court noted several specific jobs in the local market that the report cited, such as a legal assistant, legal recruiter, and a paralegal performing specialized legal research to aid attorneys in complex cases. The report reflected salaries for these local positions ranging from $25,000 to $55,848.
The Wife testified that she cannot get a job and that she is subject to discrimination because she is Turkish. However, at the January 2007 final hearing, she admitted that she had not applied for any jobs in the past six months and that she had not followed up on any of the leads in the vocational report. In fact, the Wife acknowledged that she had not attempted to obtain any employment since March 2005.
Based on the evidence presented, the trial court took the approximate average of the salaries for positions in the local market contained in the vocational report and imputed $40,000 annual income to the Wife. The court, denied the Wife's request for permanent alimony. It gave the parties one year to attempt to sell the marital residence and ordered the Husband to pay the mortgages and association fees until the residence was sold. One-half of those payments would constitute bridge-the-gap alimony to the Wife. The court ordered the Husband to pay $175 per month for one year following the sale of the residence as additional bridge-the-gap alimony. Finally, the court awarded as lump-sum alimony. mortgage payments that the Husband had previously made of $38,000 and an automobile worth $2500.
The standard of review concerning a trial court's imputation of income is whether competent, substantial evidence supports' the trial court's decision. Fitzgerald v. Fitzgerald, 912 So.2d 363, 368 (Fla. 2d DCA 2005); Hinton v. Smith, 725 So.2d 1154, 1156 (Fla. 2d DCA 1998). Here, the parties stipulated to the vocational expert's report being admitted into evidence without his testimony at the final hearing. The report contains competent, substantial evidence that employment is available in the local market for a person with the Wife's qualifications and that the average pay is $40,000. In Fitzgerald, where the wife had an earning history of up to $57,000 per year, this court determined that a vocational expert's testimony was competent, substantial evidence that the wife could earn the imputed amount of $40,900. 912 So.2d at 368.
In Stewart v. Rich, 664 So.2d 1145, 1148 (Fla. 4th DCA 1995), the court recognized that "under certain circumstances a trial court may impute income to one spouse in the context of an award of alimony but the decision to remain unemployed or underemployed must be voluntary." In Cushman v. Cushman, 585 So.2d 485, 486 (Fla. 2d DCA 1991), this court explained as follows:
Before imputing income, the court must determine whether the individual's underemployment resulted through less than diligent and bona fide efforts to find employment...
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