JACQUES KREISLER, APPELLANT/CROSS-APPELLEE,
v.
SHERRY KAY KREISLER A/K/A SHERIKAY KREISLER, APPELLEE/CROSS-APPELLANT
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Jacques Kreisler appeals the permanent alimony award in his divorce from Sherry Kay Kreisler, while she cross-appeals the denial of attorney's fees and other trial court rulings. The Fifth District Court of Appeal affirms in part and reverses in part, finding that the trial court erred by failing to impute income to Sherry and should reconsider the alimony amount on remand.
The court held that the trial court erred by failing to impute at least a minimum wage income to Sherry, and vacated the alimony award for recalculation. The court affirmed the denial of attorney's fees and found no error regarding the witness issue or waste of marital assets claim. The court affirmed in part and reversed in part, remanding for reconsideration of alimony and potentially child support amounts.
[1] A trial court must impute at least minimum wage income to a spouse who has been out of the job market during a long marriage, absent a finding that the spouse is unable t…
[2] A trial court's refusal to allow testimony is not demonstrated when the record shows the court inquired about the testimony's nature and explained its reasoning, and the…
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Join FLexlaw to unlock all legal intelligence“We agree with Jacques that at least a minimum wage amount of income should have been imputed to Sherry. Although she has been out of the job market during the marriage, the children were almost of legal age and were no longer in need of intensive child care.”
The court's holding that income imputation was necessary and that Sherry's years out of the workforce did not justify failing to impute minimum wage income.
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Join FLexlaw to unlock all legal intelligenceJacques and Sherry Kreisler were married for 20 years and had two children near majority at dissolution. Jacques is a medical software salesman earnin…
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PETERSON, J.
Jacques Kreisler appeals the amount of permanent alimony awarded to his former wife, Sherry Kay Kreisler, and the manner in which payment is to be made. Sherry cross-appeals the trial court’s refusal to award attorney’s fees to her, the refusal to allow her mental health counselor to testify, and the failure to consider Jacques’ waste of marital assets.
At the time of the dissolution proceedings, the parties had been married for 20 years and their two children had almost reached majority. Jacques is a medical software salesman and is paid a salary and commissions. He anticipates a reduction in salary because his employer is restructuring its business operations. Sherry has a bachelor of science degree in journalism and public relations, but did not work outside the home for most of this long marriage. She has performed odd jobs and accounting work for her father during the marriage. The trial court commented during trial that she could probably earn a minimum wage if she became employed, but failed to impute income to her. The final judgment awarded permanent alimony of $2,400 per month and child support of $886 per month for the two children. The trial court attempted to reach a favorable tax result for Jacques while calculating the amounts of alimony and child support.
We agree with Jacques that at least a minimum wage amount of income should have been imputed to Sherry. Although she has been out of the job market during the marriage, the children were almost of legal age and were no longer in need of intensive child care. Sherry testified about a medical condition for which she takes medication but there was no finding by the trial court that she was unable to be employed and contribute to her financial support.
During the parties’ separation, Jacques was paying temporary alimony and child support on a schedule that coincided with his payments from his employer. Because he is partially compensated based upon commissions for the sale of software, his income is not evenly received during each pay period. We believe that structuring the permanent payment plan to coincide with Jacques’ fluctuating earnings is a small concession to be made that could possibly reduce the chance for future court proceedings. Jacques’ recent bankruptcy should also be considered as a factor in meeting this minor request. We recognize that this fact issue is better addressed by the trial court and we will not vacate that portion of the judgment setting the dates of payment of alimony and child support, but we urge the trial court to reconsider Jacques’ plight and attempt to structure payments that will insure timely compliance.
Sherry alleges that she was prevented from calling a witness during her case-in-chief, and that the witness would have explained her medical condition. Our review of the record indicates that the trial court inquired of the nature of the prospective testimony and thereafter explained why it was unimportant. We have discovered no refusal by the trial court to allow the testimony. On the contrary, it appears that both Sherry and her attorney accepted the reasoning of the court and rested Sherry’s case.
We vacate the amount of the award of periodic alimony and remand for consideration of an appropriate amount after imputing income to Sherry. Because the child support was also calculated in consideration of the amount of alimony, the trial court may also consider revising that amount if appropriate. We urge reconsideration of the required monthly payment dates of--alimony and child-support. Except as noted above, we affirm the final judgment of dissolution of marriage in all other aspects, including the denial of attorney’s fees to either party and the issue of any waste of marital assets. We remand for reconsideration of the vacated portions of the judgment.
VACATED IN PART; AFFIRMED IN PART; REMANDED.
ANTOON, C.J., and HARRIS, J., concur.
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Bacon v. Wilton Jackson Bacon, 819 So. 2d 950 (Fla. 4th DCA 2002)…though, certainly, the trial court should consider prospective employment as a potential source of income to the wife, it is also required to consider the other factors, including those “necessary to do equity and justice.” See Kreisler v. Kreisler, 752 So. 2d 1288 (Fla. 5th DCA 2000); Brock v. Brock, 690 So. 2d 737 (Fla. [*953] 5th DCA 1997). Nothing in the statute mandates that minimum wage income must be immediately imputed for the purpose of reducing alimony that would otherwise be ordered. See Shrove v. S…
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Riley v. Riley, 14 So. 3d 1284 (Fla. 2d DCA 2009)…onthly amount.” Id.; see also Solomon v. Solomon, 861 So. 2d 1218, 1220 (Fla. 2d DCA 2003) (“In imputing income, the court must consider recent work history as well as occupational qualifications and prevailing earnings.”). In Kreisler v. Kreisler, 752 So. 2d 1288, 1289 (Fla. 5th DCA 2000), the Fifth District vacated an alimony award and remanded for the trial court to reconsider the amount of alimony after imputing income to the wife. The parties had been married for twenty years, their children had almost r…
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Pasqual Bracero v. Bracero, 849 So. 2d 388 (Fla. 5th DCA 2003)…mately $28,000 per year should be imputed to the former wife (which arguably would be reflective of the salary she could earn as a registered nurse), the trial court erred in failing to impute at least minimum wage to the wife. Kreisler v. Kreisler, 752 So. 2d 1288 (Fla. 5th DCA 2000). The trial court also ordered the former husband to provide a $500,000 life insurance policy, with the former wife as the beneficiary, to cover his alimony obligations as long as he had an obligation to pay her alimony. Section…
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