Robert B. Manfre v. Catherine N. Manfre , 2016 Fla. App. LEXIS 1902 ( 2016 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ROBERT B. MANFRE,
Appellant,
v.
CATHERINE N. MANFRE,
Appellee.
No. 4D14-511
[February 10, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Tim Bailey, Judge; L.T. Case No. 12-8369 (41).
Peter Raimondi and Robert J. Moraitis of Robert J. Moraitis, P.A., Fort
Lauderdale, for appellant.
Nancy A. Hass of Nancy A. Hass, P.A., Hallandale Beach, for appellee.
CIKLIN, C.J.
In this appeal from a final judgment of dissolution of marriage, the
husband challenges the trial court’s decision not to impute income to the
wife for purposes of awarding alimony. We agree with the husband that
the trial court erred in that regard and we reverse the alimony award.
We affirm the final judgment in all other respects.
Because the final hearing was not reported, the husband relies on the
trial court’s Order Settling Statement Of The Evidence (“the Statement”).1
The Statement recites the exhibits introduced at trial, and provides that
the court took judicial notice of the wife’s deposition transcript and that
the deposition of the wife’s treating physician, Dr. James J. Polito, was
read into evidence. The Statement also provides that the wife testified
that she suffers from “diabetes, neuropathy, depression, anxiety, and
skin cancer,” and that these are not common ailments for a fifty-seven-
year-old woman, despite the testimony of her doctor to the contrary. The
1 Florida Rule of Appellate Procedure 9.200(b)(4) provides a means of preparing
a record “[i]f no report of the proceedings was made, or if the transcript is
unavailable.”
Statement also indicates the wife testified that she “walks regularly,
exercise[s] daily and attends Jazzercise two to three times per week.”
In her deposition, the wife, a registered nurse, testified regarding her
work history and current employment. Prior to November 2011, when
she voluntarily left employment, she worked for West Boca Medical
Center earning $36 an hour. She worked three twelve-hour shifts during
the week. After receiving a raise of one dollar an hour each year she
worked there, she was earning a salary of $80,000, which included a
significant amount of overtime. When she resigned, she told the
husband she was “tired of this job and I hate it and I can’t stand it
anymore.” She did not want to be “on my feet [twelve] hours.” The job
was too stressful, and because she was done paying for her daughter’s
college tuition, she saw no need to continue in that employment.
After her resignation, she looked for other jobs utilizing her nursing
degree and experience but not requiring shift work. Since November
2011, she had been employed by Broward Outpatient Center as a pre-op
and post-op nurse, earning $31 an hour. Her hours had been cut back
which resulted in her working ten to fifteen hours a week. She had
applied for full-time nursing jobs that would not require her to work
nights and weekends, but she did not receive responses. She also
applied for part-time work to supplement her current part-time job, but
she never made it far enough in the process to find out about pay. At
one point, she received an offer from a home health care company as a
full-time nurse but turned it down because, she concluded, the salary
that was offered—$50,000—was too low for someone with her experience.
The wife testified that the “going rate” for the job she left was $60,000
to $65,000 a year “according to national average.” Her previous salary as
a hospital nurse was not a conventional starting salary and was based
on raises she earned over the course of her employment. She
acknowledged that Broward County had a shortage of hospital nurses
but she was not willing to return to a hospital setting doing shift work.
The wife also conceded that there were no medical conditions preventing
her from working full-time.
In his deposition, Dr. Polito testified in terms of hypotheticals. For
instance, he testified that a person with the wife’s conditions could work
ten-hour or twelve-hour shifts if “she’s under control with those different
conditions.” He assumed she was under control, as she had not been in
to see him for six months. He characterized the wife as being in “pretty
good shape,” and judging from the last time he saw her, able to work full
time.
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In its final judgment, the trial court found that the parties were
married for more than thirty years, the wife was fifty-six years old and
the husband sixty-seven years old at the time the petition was filed, and
the husband earned about $132,000 a year. The court recognized that
from 2008 to 2011, the wife “showed an ability to make over $75,000,”
but it declined to impute income to her, reasoning as follows:
The Court finds that the Wife is not afraid of work. The
Court finds that both parties are hard working. The Court
heard testimony from the Wife that she is old and does not
want to work on the floors of a hospital. The Court finds
that the Wife has made good faith efforts not to be
underemployed, as she is working [30 to 37] hours per week.
The Court does not find this is an imputation of income case.
As for the wife’s health, the court made the following finding: “The Wife
testified that she suffers from diabetes, neuropathy, depression, anxiety,
and skin cancer. This Court does not believe that these ailments and
illnesses are common for a fifty-seven [ ] year-old woman . . . and
disagrees with Dr. Polito.”
“The standard of review governing a trial court’s imputation of income
is whether the determination is supported by competent, substantial
evidence.” Brown v. Cannady-Brown, 954 So. 2d 1206, 1207 (Fla. 4th
DCA 2007). Alimony awards are reviewed for an abuse of discretion.
Green v. Green, 126 So. 3d 1112, 1114 (Fla. 4th DCA 2012).
Florida’s alimony statute, section 61.08, Florida Statutes (2012),
provides in pertinent part:
2) In determining whether to award alimony . . . the court
shall first make a specific factual determination as to
whether either party has an actual need for alimony or
maintenance and whether either party has the ability to pay
alimony or maintenance. If the court finds that a party has
a need for alimony . . . and that the other party has the
ability to pay . . . then in determining the proper type and
amount of alimony . . . the court shall consider all relevant
factors, including, but not limited to:
....
(c) The age and physical and emotional condition of each
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party.
(d) The financial resources of each party . . . .
(e) The earning capacities, educational levels, vocational
skills, and employability of the parties . . . .
....
(i) All sources of income available to either party . . . .
§ 61.08, Fla. Stat. (2012). “[T]he amount of income a spouse may be able
to earn is a factor the court should consider in determining an alimony
award.” Shrove v. Shrove, 724 So. 2d 679, 682 (Fla. 4th DCA 1999).
“The spouse claiming that the other spouse is voluntarily
[underemployed] bears the burden of proof.” Zarycki-Weig v. Weig, 25 So.
3d 573, 575 (Fla. 4th DCA 2009) (citation omitted).
We have previously explained the analysis a trial court must
undertake when faced with the issue of imputing income:
Although the trial court is free to determine the credibility of
witnesses, restraints on imputation exist in the form of a
required two-step analysis. First, the trial court must
conclude that the termination of income was voluntary;
second, the court must determine whether any subsequent
underemployment “resulted from the spouse’s pursuit of his
own interests or through less than diligent and bona fide
efforts to find employment paying income at a level equal to
or better than that formerly received.”
Brown, 954 So. 2d at 1207 (citation omitted); see also Schram v. Schram,
932 So. 2d 245, 249 (Fla. 4th DCA 2005) (“A court may impute income
where a party is willfully earning less and the party has the capability to
earn more by the use of his best efforts.”). “Voluntary underemployment
occurs when a spouse does not put forth a good faith effort to find a
position that is comparable to previous employment which was
terminated.” Vitro v. Vitro, 122 So. 3d 382, 384-85 (Fla. 4th DCA 2012)
(citation omitted). When the trial court’s findings and the evidence do
not support the court’s decision on imputation, reversal is required. See
Burkhardt v. Bass, 711 So. 2d 158, 161 (Fla. 4th DCA 1998).
In this case, the wife acknowledges that the first prong of the test for
imputation is satisfied, as she left her job voluntarily. Thus, the only
remaining issue is whether the trial court erred in its findings regarding
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the second prong—whether the wife made diligent, bona fide attempts to
find a comparable job. The court did not make express findings on this
prong. Instead, the court summarized the wife’s testimony, and found
that her health conditions were not common for her age. The court also
found the wife was not voluntarily underemployed as she works 30 to 37
hours per week. This latter finding was contrary to the evidence—the
wife testified that at the time of trial, she was working ten to fifteen hours
a week, although she had worked up to 37 hours a week when the work
was available at her current employment.
It was undisputed at trial that if the wife resumed hospital shift-work,
she would most likely not be offered a salary of $80,000—a salary she
achieved after many years in the employ of West Boca Medical Center.
However, she admitted that positions comparable to the one she left were
available and that the average pay for such positions was between
$60,000 and $65,000. She also acknowledged that she had turned down
a job that met all her requirements, based solely on the fact it paid only
$50,000. That makes this case akin to Green, 126 So. 3d 1112. There,
the wife had a photography business before the marriage and earned $80
an hour, but had not worked for many years. She acknowledged she
could obtain employment making $10 an hour but was unwilling to
accept the low pay. On appeal, we affirmed the award of permanent
alimony but reversed based on the trial court’s failure to impute income
to the wife:
Here, there was competent, substantial evidence that Former
Wife had the requisite skills that allowed her to earn $80 per
hour operating her own photography business. And,
although Former Wife testified that her job searches proved
unsuccessful, her acknowledged unwillingness to “work for
$10 an hour” is competent evidence that Former Wife’s
unemployment status was self-imposed. At the very least,
this evidence established a lack of best efforts on the part of
Former Wife to seek gainful employment.
Id. at 1114.
Here, the wife is under no obligation to return to the hospital setting.
The trial court, of course, may certainly consider health issues when
determining a party’s ability to do certain types of work, but the trial
court did not find that the wife’s health issues precluded her from taking
on employment comparable to the type she voluntarily left, and the
record does not support such a finding. Accordingly, we reverse and
remand for the court to impute income to the wife. If the court finds
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alimony is necessary, it must recalculate the appropriate amount
utilizing the income imputed to the wife.
Affirmed in part, reversed in part, and remanded.
TAYLOR and LEVINE, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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