JOSE M. GOMEZ, APPELLANT,
v.
LADYS INFANTE GOMEZ, APPELLEE
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In this dissolution of marriage appeal, the Third District Court of Appeal reversed the trial court's alimony and equitable distribution awards, finding that the imputed income used to calculate alimony was unsupported by evidence and that the property distribution failed to account for substantial assets the wife had already received.
The court reversed both the alimony award and equitable distribution provisions, holding that imputation of the ex-husband's prior $3,000 monthly income was unsupported by evidence of his current earning capacity at age 72, and that the trial court failed to account for substantial marital assets already in the wife's possession when distributing remaining assets.
[1] Imputing income to a party in a dissolution proceeding requires evidence of the party's present ability to earn that income, not merely their past earning capacity.
[2] A party's age and current capacity are relevant considerations when determining their ability to earn income for purposes of alimony.
Previewing 2 of 4 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“there is no evidence that he is now capable of earning, as the lower court found, the same amount as he did when the repair shop was a going concern. It is both counter-intuitive and, more important, unjustified by the record that a person of Mr. Gomez's age and capacity could accomplish that result”
Establishes the court's rationale for rejecting the imputation of prior income for alimony calculation purposes
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Join FLexlaw to unlock all legal intelligenceJose Gomez, age 72, was a former car repair shop owner who closed his business, apparently to avoid support obligations. The trial court imputed to hi…
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SCHWARTZ, Chief Judge.
The ex-husband appeals from the financial aspects of a final judgment of dissolution. We conclude that, taken as a whole, the judgment unfairly distributes the marital assets and imposes an alimony obligation on the appellant beyond his demonstrated ability to pay. See Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980). Hence, we reverse the alimony and equitable distribution provisions of the judgment for a new trial on these issues.
I.
Mr. Gomez, the former owner of a car repair shop, is now seventy-two years of age. While the record supports the finding that he closed the business in order to avoid his obligations to his wife and then-seventeen-year-old child, so that income in some amount could be properly imputed to him under the doctrine of Pimm v. Pimm, 601 So. 2d 534 (Fla.1992), there is no evidence that he is now capable of earning, as the lower court found, the same amount as he did when the repair shop was a going concern. It is both counter-intuitive and, more important, unjustified by the record that a person of Mr. Gomez’s age and capacity could accomplish that result, particularly when, as the evidence shows, the shop was in any case virtually defunct when Gomez “retired” from it. Hence, the imputation to Gomez of the amount of his prior income, $3000.00 a month, which formed the basis of the consequent award of $1500.00 per month in permanent periodic alimony, cannot stand. See Paul v. Paul, 648 So. 2d 1211 (Fla. 5th DCA 1995); Edwards v. Sanders, 622 So. 2d 587 (Fla. 1st DCA 1993); Edwards v. Edwards, 615 So. 2d 178 (Fla. 3d DCA 1993); Wendroff v. Wendroff, 614 So. 2d 590 (Fla. 1st DCA 1993); Kinne v. Kinne, 599 So. 2d 191 (Fla. 2d DCA 1992).
II.
The equitable distribution effected by the final judgment, while it purported to distribute the marital assets almost equally between the parties, was unacceptably skewed in favor of the wife. This came about primarily, although not exclusively, because of the trial court’s failure to recognize that Mrs. Gomez had already received substantial marital assets, particularly a home previously owned by Mr. Gomez which she secured by executing on a past due temporary alimony and support judgment, the proceeds of a jointly held vessel, and a marital bank account. Obviously, “equal,” much less “equitable,” distribution cannot be accomplished without taking into account the present ownership of all the assets of the parties. See Tunderman v. Lee, 585 So. 2d 354 (Fla. 2d DCA 1991).
In sum, we conclude that the issues of the nature and extent of alimony and of equitable distribution must be reconsidered, and, because of the passage of time and the insufficiency of the present record, retried after remand. See Stewmon v. Stewmon, 654 So. 2d 259 (Fla. 2d DCA 1995). The judgment under review is otherwise affirmed.
Affirmed in part, reversed in part, and remanded with directions.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992)
- Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980)
- Wendroff v. Wendroff, 614 So. 2d 590 (Fla. 1st DCA 1993)
- Kinne v. Kinne, 599 So. 2d 191 (Fla. 2d DCA 1992)
- Edwards v. Sanders, 622 So. 2d 587 (Fla. 1st DCA 1993)
- Stewmon v. Stewmon, 654 So. 2d 259 (Fla. 2d DCA 1995)
- Tunderman v. Young Ja LEE, 585 So. 2d 354 (Fla. 2d DCA 1991)
- Paul v. Paul, 648 So. 2d 1211 (Fla. 5th DCA 1995)
- Edwards v. Edwards, 615 So. 2d 178 (Fla. 3d DCA 1993)