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Middleton v. Middleton

Florida Court of Appeal, Fifth District

January 6, 2012

Sharon Booth MIDDLETON, Appellant/Cross-Appellee,
v.
James W. MIDDLETON, Appellee/Cross-Appellant.

Rehearing and Rehearing En Banc Denied Feb. 20, 2012.

William S. Graessle of William S. Graessle, P.A., Jacksonville, for Appellant/Cross-Appellee.

Alan C. Jensen, Jacksonville Beach, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee/Cross-Appellant.

PALMER, J.

In this dissolution of marriage proceeding, Sharon Middleton (wife) appeals the trial court's final dissolution order, and James Middleton (husband) cross-appeals. We find merit in one issue raised in the husband's cross-appeal and, accordingly, affirm in part and reverse in part.

The husband maintains that the trial court applied the wrong standard in deciding whether to impute income to the wife. We agree.

In Durand v. Durand, 16 So.3d 982, 985 (Fla. 4th DCA 2009), the Fourth District explained that the " spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available." In determining the amount of income to impute, " the court must consider the spouse's recent work history, his or her occupational qualifications, and the prevailing earnings in the community for that class of available jobs." Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004).

Here, the evidence of record demonstrated that the wife is 50 years old, the parties' two children are grown, the wife worked as a nurse at the beginning of the parties' marriage but left the field to raise the children, her nursing license is still current, and she has a master's degree in " research and writing curriculum." Both parties' vocational experts agreed that the perfect job for the wife would be as a health educator, earning a full-time salary of about $40,000.00 per year or a part-time

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salary of $18.00 per hour. However, the wife's expert, John Roberts, testified that it would be difficult for the wife to find work as a health educator making full-time wages or $18.00 per hour. He did state that he could find her " a lot of jobs" making $9.00 per hour. The husband's expert, Claire Hibbard, identified current open job positions with several companies and opined that the wife would be employable within the labor market in a variety of entry-level nursing positions, earning a salary ranging from $37,440.00 to $45,000.00, annually. Hibbard stated that, when speaking to prospective employers, she outlined the wife's last date of work, her education, her work history, and her physical restrictions.

On the issue of imputation of income, the trial court wrote in the final dissolution judgment:

The Wife, in her early 50's, can be employed as a utilization case review manager and can earn $37,440 per year to start. She has no disability rating; she does not want to go back to work.
....
She does not intend to work and it's not clear to the Court if a utilization review case review manager position is even available for her to take at this time. Clearly, she does not want to work again outside the home despite her advanced degrees. For ...

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