Posted by Nydia Streets of Streets Law in Florida Alimony

Imputing income to a party for purposes of calculating support is a process which requires specific proof and findings. In the case Frerking v. Stacy, 5D18-2327 (Fla. 5th DCA March 15, 2019), we review a trial court’s decision to award durational, rather than permanent, alimony in a long-term marriage based in part on speculated employment opportunities for the former wife.

The parties were married for almost 19 years by the time the former wife filed a petition for dissolution of marriage. The former husband was in the military and as a result the parties moved periodically throughout their marriage. The evidence showed the former wife had never earned more than $14,000 annually, and that for most of the marriage she was a homemaker. The appellate court noted, “[the former husband’s vocational] expert hypothesized that Appellant's educational background, a bachelor's degree in public relations and a master's degree in communications, qualified her to teach either elementary or high school, where he believed she could earn between $43,000 and $50,000 per year. Appellee's expert conceded that before she could teach certain subjects, Appellant would have to pass subject matter exams, but he had no information about the likelihood of her success on those exams. The expert also conceded that to complete her certification, Appellant would have to take college-level education courses. Finally, the expert testified that in order to teach kindergarten through fifth grade, Appellant did not need to pass a subject matter exam, and that she was qualified for those teaching positions at the time of trial. Both Appellee's expert and the trial court overlooked the legal requirement that Appellant would have to be certified before she could become a permanent, full-time public school teacher, even at the elementary school level. In order to be professionally certified as an elementary school teacher, one must either have a bachelor's or higher degree with a major in elementary education or have a bachelor's or higher degree in another subject with thirty semester hours in elementary education.”

The evidence further showed that while the divorce case was pending, the former wife applied to many jobs but had not gained full-time employment. According to Florida law as noted by the appellate court, “Trial courts can impute income to an unemployed or underemployed spouse, but they must make the following findings: first, that any "termination of income was voluntary"; and second, that the spouse's underemployment was owing to "less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” The appellate court held, '“Here, the trial court's focus was not on whether Appellant used her best efforts to secure income ‘at a level equal to or better than that formerly received.’ Instead, it improperly focused on Appellee's expert's testimony that Appellant could maximize her income if she pursued teaching, even though it would require further education or retraining.” The appellate court therefore ordered, “Accordingly, we hold that the evidence did not overcome the presumption in favor of permanent alimony, nor did the evidence support imputing an annual income of $43,000 to Appellant. Because the trial court abused its discretion in awarding durational rather than permanent periodic alimony to Appellant, and because the trial court did not base its imputation of income on Appellant's ‘recent work history, occupational qualifications, and prevailing earnings level in the community,; we reverse and remand for further proceedings consistent with this opinion.”

Permanent alimony is presumed to be appropriate in long-term marriages, and here the appellate court ruled the former husband failed to overcome the presumption. If you are involved in a Florida divorce case that includes the issue of permanent alimony, schedule a consultation with a Miami divorce lawyer to understand your best claims and defenses.