Arce v. Arce

566 So. 2d 1308, 1990 WL 98587
CourtDistrict Court of Appeal of Florida
DecidedJuly 17, 1990
Docket89-1716, 90-189
StatusPublished
Cited by12 cases

This text of 566 So. 2d 1308 (Arce v. Arce) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arce v. Arce, 566 So. 2d 1308, 1990 WL 98587 (Fla. Ct. App. 1990).

Opinion

566 So.2d 1308 (1990)

Roberto ARCE, Appellant,
v.
Hortensia ARCE, Appellee.

Nos. 89-1716, 90-189.

District Court of Appeal of Florida, Third District.

July 17, 1990.
Rehearing Denied October 12, 1990.

*1309 Theodore J. Silver, Greene and Greene, P.A., and Cynthia L. Greene, Miami, for appellant.

Sydney Syna and H. Steven Sussman, Miami, for appellee.

Before SCHWARTZ, C.J., and JORGENSON and LEVY, JJ.

JORGENSON, Judge.

In this consolidated appeal, Roberto Arce appeals from a final judgment of dissolution of marriage and an order of contempt. For the reasons that follow, we reverse the order finding Roberto Arce in contempt of court, reverse in part and affirm in part the final judgment of dissolution of marriage, and remand for further proceedings.

Roberto Arce [husband] and Hortensia Arce [wife] were married for eleven years. During the marriage, the wife was employed briefly as a respiratory technician, but worked primarily as a homemaker and raised the couple's three children. She obtained a bachelor's degree in psychology and planned to attend graduate school. The husband finished both his undergraduate education and medical school during the marriage. To defray the high costs of medical school, the husband participated in the Public Health Service Program, which provided tuition and a stipend in exchange for a three-year commitment to work for the Service upon completion of medical school.

When the husband graduated from medical school in 1982, he began his residency in internal medicine and earned approximately $11,800 a year. In 1985 he began to fulfill his commitment to the Public Health Service; between July, 1985, and July, 1988, he earned between $32,000 and $45,000 a year.

In 1987, the husband accepted a fellowship in cardiology at the Henry Ford Foundation in Detroit, Michigan, to begin in July, 1989.[1] Until that fellowship started, the husband took a temporary job for one year as an emergency room physician at a gross salary of $8,640 a month.

At the final hearing on the wife's petition for dissolution of marriage, the husband submitted his financial affidavit listing his income as $36,000 per year, the sum he was to receive in three months, once his fellowship began. The trial court agreed that the *1310 husband's actual income would be $36,000 a year during the three-year fellowship but found that the husband's income from his temporary job as an emergency room physician, $100,000 a year, represented his ability to pay. The trial court concluded that the husband, by accepting the fellowship, voluntarily reduced his income and ordered him to pay the wife $2,000 a month in rehabilitative alimony and $500 a month in child support. The trial court also ordered the husband to pay lump sum alimony of $60,000, payable one year after his graduation from the fellowship in three consecutive annual installments, and awarded the wife sole title and possession of the marital home. The court further ordered the wife to "set aside" $150 from the child support payments each month for the children's college education.

When the husband started his fellowship in Detroit, he sent the wife approximately $1,700 a month, which was over 50% of his net income, but $800 a month less than ordered by the court. The wife sought an adjudication of contempt. The trial court held a hearing on the matter, at which the husband testified by telephone from Detroit. The husband testified that he had no savings, lived in a dormitory, and earned less than $2,500 a month. The trial court reiterated its earlier finding that the husband had voluntarily reduced his income, found that he had the present ability to pay, and adjudicated him in contempt of court. The husband has appealed from both the final judgment and the order of contempt.

Although income that a spouse is capable of earning may be attributed to him in determining the amount of support he must pay, see Ward v. Ward, 502 So.2d 477 (Fla. 3d DCA 1987), the court below erred in its interpretation of the law and in applying the holding of Ward in this case. At the final hearing on the petition for dissolution, the court stated, "I want to encourage him, you know, to go through this educational program because I think in the final analysis he will double his income; that is, double his present-day income, which is for the children as the ultimate beneficiaries of his endeavors" (emphasis added). The trial court thus recognized that, once the husband finished his fellowship in cardiology, his earning capacity would be greatly enhanced.

The trial court erred in taking an unreasonably narrow view of the parties' situation. The husband clearly has a current obligation to support his wife and children; their needs have been established. However, the final judgment and the order of contempt that are before us today force the husband to compromise, and perhaps abandon, his cardiology fellowship. In so doing, the trial court jeopardized the long-term financial well-being of the wife and three children.

This is an issue of first impression in Florida. However, other jurisdictions have recognized that

[F]ollowing dissolution of marriage, the custodial parent and children cannot be allowed to freeze out the other parent in his employment or otherwise preclude him from seeking economic improvement for himself and his family. So long as his employment, educational or investment decisions are undertaken in good faith and not deliberately designed to avoid responsibility for those dependent upon him, he should be permitted to enhance his economic fortunes without penalty.

Coons v. Wilder, 93 Ill. App.3d 127, 133, 48 Ill.Dec. 512, 518, 416 N.E.2d 785, 791 (1981). See also Robesena W. v. George B.D., 145 A.D.2d 426, 427, 535 N.Y.S.2d 406, 407 (N.Y. App. Div. 1988) (mother's decision to enter law school not a voluntary reduction in earnings to avoid support payments, as "pursuit of a law degree increases her potential to provide support in the future and should not be viewed as motivated by a desire to evade her obligations to the child"); In re Marriage of Kowski, 123 Ill. App.3d 811, 79 Ill.Dec. 286, 463 N.E.2d 840 (1984) (modification of support obligation appropriate where supporting spouse terminates employment to further education); Graham v. Graham, 21 Ill. App.3d 1032, 316 N.E.2d 143 (1974) (modification of support payments within trial court's discretion where husband temporarily decreased income in order to complete doctorate); Martinec v. Martinec, 17 Ill. App.3d 402, 308 N.E.2d 161 (1974) (modification of support payments within trial *1311 court's discretion where husband left full-time job as police officer to become full-time college student). Because the primary role of the courts in dissolution and post-dissolution proceedings is to protect the interests of the parties most devastated by a family rift, we believe that the long-term view expressed in these cases best serves that role.

The Florida cases that address the issue of a former spouse's voluntary reduction of income are clearly distinguishable from this case. In Ward v. Ward, 502 So.2d 477 (Fla.

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Bluebook (online)
566 So. 2d 1308, 1990 WL 98587, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arce-v-arce-fladistctapp-1990.