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[T] In re Marriage of Decker-Sidmore11/26/2003
iplinary action against her. Once clinically certified, Barbara's earning capacity will be greatly enhanced as she will be eligible to receive third-party reimbursement from insurance carriers. The trial court then allowed Barbara an extra year to get back on her feet. This is an appropriate exercise of discretion.
. The trial court properly exercised its discretion by determining that Kenneth's earning capacity was $50,000. The trial court found Kenneth's gross income for the last six taxable years to be $263,910, for an annual average of $43,985. In addition, evidence was presented that Kenneth was able to work year-round but had chosen not to work in the winter. The record shows Kenneth preferred to travel during the off-season with Barbara. The record also shows Kenneth did not expend much effort to obtain winter employment. Kenneth conceded during his testimony that in 2001 he earned almost $51,000 and in 1999 he earned approximately $50,000. The trial court acted reasonably and rationally by finding Kenneth's earning capacity to be $50,000 per year.
. However, we do not find in the record support for the trial court's finding that Kenneth's monthly-unreimbursed business expenses were $1,000. In its written decision, the trial court referenced the tax analyses of disposable income prepared by Barbara's expert, Craven. In all of Craven's analyses, he assumed, as instructed by Barbara's attorney, that Kenneth had either no unreimbursed employee business expenses or $1,000 per month of unreimbursed employee business expenses. The trial court then seemingly adopted Craven's figures without reference to any evidence that may exist in the record and assumed that Kenneth's unreimbursed employee business expenses were $1,000 per month. We have not located any evidence in the record to support that determination. The only evidence found in the record of Kenneth's unreimbursed employee business expenses was that set forth in his Financial Disclosure Statement, which indicated that his unreimbursed employee business expenses were approximately $1,405 per month. The difference between these two figures is not insubstantial, amounting to over $4,800 per year. Barbara did not introduce evidence as to Kenneth's out-of-pocket business expenses. Barbara makes no argument before this court regarding this issue and thus waives any objection she may have on this point.
. We conclude the trial court erroneously exercised its discretion by basing its maintenance decision, in part, upon the assumption that Kenneth incurred $1,000 per month for unreimbursed employee business expenses. On remand, the trial court is to re-calculate maintenance consistent with this opinion.
CONCLUSION
. We conclude that the trial court properly exercised its discretion in ruling that Barbara's school loans were marital debt. However, we also conclude that the facts of record do not entirely support the trial court's conclusion on the issue of the amount of maintenance. We, therefore, affirm in part, reverse in part and remand for proceedings consistent with this decision.
By the Court. -- Judgment affirmed in part; reversed in part and cause remanded with directions.
Not recommended for publication in the official reports.
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