DONALD J. GILDEA, APPELLANT,
v.
SHARYN T. GILDEA, APPELLEE

Fla. 2d DCA | 1992-02-21
No. 90-03503
SCHOONOVER, C.J., and RYDER and PATTERSON, JJ., concur.
593 So. 2d 1212 Florida District Court of Appeal, Second District (1992) Caution
Cited by 26 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this dissolution of marriage appeal, the husband challenged an alimony award of $1,500 monthly. The appellate court agreed, holding that the trial court erred in imputing income to the husband when he had been involuntarily terminated and was actively seeking reemployment without success.


Holding

The trial court did not err in finding the wife entitled to permanent periodic alimony, but erred in determining the husband had the ability to pay $1,500 monthly based on his actual income of $800 from unemployment compensation. Imputing income was error where the husband was involuntarily terminated through no fault of his own and actively sought but failed to obtain comparable employment.


Headnotes

[1] A trial court errs in awarding permanent periodic alimony when the payor spouse lacks the present ability to pay the ordered amount.

[2] A party's entitlement to permanent periodic alimony must be established before the amount can be determined based on need and ability to pay.

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“Once a party's entitlement to permanent periodic alimony is established, however, the amount is based on the needs of one spouse and the ability of the other spouse to pay.”

Establishes the two-part test for alimony: entitlement must first be shown, then the amount is determined by need and ability to pay.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The parties were married 21 years with three children ages 14, 17, and 19. The husband earned $4,586 gross monthly in medical sales but was fired six …

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
PER CURIAM.

PER CURIAM.

This is an appeal from a final judgment of dissolution of marriage in which the husband contends the trial court erred by awarding the wife $1,500 monthly permanent periodic alimony. We agree.

At the time the wife filed the petition for dissolution, the parties had been married twenty-one years. They had three children, nineteen, seventeen, and fourteen years of age. The husband was employed in medical sales during much of the marriage and earned a gross monthly income of $4,586. Six months after the petition was filed, the husband was fired from his job due to a general decline in industry sales and reduction in personnel. He began drawing weekly unemployment compensation of $200. At the time of the final hearing, the gross monthly income of the wife was $1,120, and the husband was still drawing the same unemployment compensation.

The husband sought reemployment. He secured interviews by contacting approximately ten medical personnel agencies and by making direct calls to companies. In his field, the interview process of interested companies includes two or three interviews taking two to three months to complete. At the time of the final judgment, the husband had completed two interview processes, but the companies had hired other individuals.

The husband testified he had worked all his life, did not enjoy unemployment, and found it humiliating. He also testified that since he became unemployed, his wife had left the marital home and he had moved back in to care for the children. He had supported himself and the children mostly through savings and equity loans on the marital home. He had also borrowed $2,500 on a VISA account, was cashing in his stocks, and had requested permission to withdraw all the money from his retirement plan.

The trial court did not abuse its discretion by finding that the wife was entitled to permanent periodic alimony. Once a party’s entitlement to permanent periodic alimony is established, however, the amount is based on the needs of one spouse and the ability of the other spouse to pay. See Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980). The trial court erred in determining the husband had the ability to pay the amount ordered. The record does not establish the husband had the present ability to pay $1,500 monthly based upon his monthly income of $800 from unemployment compensation. Because of his low income level at the time of the final judgment, the husband had to obtain equity loans on the marital home and sought to use retirement funds from his prior employment in order to survive and to support his children.

A court may impute income to a party who has no income or is earning less than is available to him based upon a showing that the party has the capability to earn more by the use of his best efforts. Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979). This determination of earning capacity versus actual earnings assumes the party to which income is to be imputed has chosen to earn less and has the ability to remedy the situation. Greene v. Greene, 547 So. 2d 1302 (Fla. 2d DCA 1989). In this case, however, the husband was involuntarily terminated from employment through no fault of his own and sought reemployment but without success. Although the judge imputed income because she thought the husband would soon be comparably employed, the imputing of income based on the present record was error. Greene.

Based on the husband’s ability to pay at the time of the final hearing, we reverse and remand with instructions to delete the requirement that the husband pay $1,500 per month. At further proceedings, the trial court may enter a small or nominal sum of permanent periodic alimony based upon the husband’s present ability to pay and reserve jurisdiction to determine an amount once the wife can establish the husband has the ability to pay.

Reversed and remanded with instructions.

SCHOONOVER, C.J., and RYDER and PATTERSON, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (13 total)

  • Ritter v. Ritter, 690 So. 2d 1372 (Fla. 2d DCA 1997)
    …his chosen field, [he] has the present ability” to earn that amount. A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts. Gildea v. Gildea, 593 So. 2d 1212, 1213 (Fla. 2d DCA 1992). Present income cannot, however, be imputed based on previous income from a defunct corporation. See Gomez v. Gomez, 659 So. 2d 705, 706 (Fla. 3d DCA 1995). Nothing in the record established that Mr. Ritter is now capable of…
  • Brock v. Newman Brock, 690 So. 2d 737 (Fla. 5th DCA 1997)
    …ers, 582 So. 2d 1212 (Fla. 1st DCA), rev. denied, 592 So. 2d 679 (Fla.1991); Lanier v. Lanier, 594 So. 2d 809 (Fla. 1st DCA 1992). . See Carroll v. Carroll, 471 So. 2d 1358 (Fla. 3d DCA), rev. denied, 482 So. 2d 347 (Fla.1985). . Gildea v. Gildea, 593 So. 2d 1212 (Fla. 2d DCA 1992); Akers v. Akers, 582 So. 2d 1212 (Fla. 1st DCA), rev. denied, 592 So. 2d 679 (Fla.1991); McCloskey v. McCloskey, 359 So. 2d 494 (Fla. 4th DCA 1978), cert. denied, 368 So. 2d 1370 (Fla. 1979). . Reich v. Reich, 652 So. 2d 1200 (Fl…
  • Blanchard v. Maran L. Blanchard, 793 So. 2d 989 (Fla. 2d DCA 2001)
    …to the husband. As a result, the trial court was correct in finding that no income should be imputed to the husband at this time, and that an award of any significant amount of permanent alimony to the wife was not appropriate. See Gildea v. Gildea, 593 So. 2d 1212 (Fla. 2d DCA 1992). Nevertheless, the trial court acknowledged that the husband’s venture was likely either to become successful or to force him into a more profitable career sometime in the next few years. Because the business was new and the part…

Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw