Freilich v. Freilich, 5D03-3229.

• Court: Court of Appeal of Florida (US)
• Citation: 897 So.2d 537
• Docket Number: No. 5D03-3229.,5D03-3229.
• Parties: Ira FREILICH, Appellant, v. Susan FREILICH, Appellee.
• Decision Date: 04 March 2005

897 So.2d 537

Ira FREILICH, Appellant, v. Susan FREILICH, Appellee.

No. 5D03-3229.

District Court of Appeal of Florida, Fifth District.

March 4, 2005.

Robert J. Wheelock of Robert J. Wheelock, LLC, Orlando, for Appellant.

Mark A. Fromang of Fromang & Fromang, P.A., Orlando, for Appellee.

SAWAYA, C.J.

In this dissolution of marriage action, the husband appeals the final judgment, asserting that the trial court erroneously: (1) imputed income to him; (2) awarded alimony, child support, and attorney's fees and made equitable distribution without competent, substantial evidence; and (3) accepted the wife's proposed final judgment verbatim without making findings of fact. We affirm as to all issues raised except the amount of income imputed to the husband. Therefore, we will devote the remainder of this opinion to that issue and explain why the amount awarded will have to be recalculated.¹

Shortly after the husband and wife were married on June 10, 1984, the husband commenced a medical career as a dermatologist. Three children were born during the course of the marriage. In 2000, having grown disillusioned with the practice of medicine, the husband decided to take a sabbatical. While on sabbatical, the Florida Board of Medicine suspended the husband's medical license for one year based on a series of charges alleged by a disgruntled employee. Although his license was reinstated in 2002, the husband elected not to resume the practice of medicine, asserting tainted reputation and inability to obtain malpractice insurance at a reasonable rate. Instead, the husband entered law school seeking a new career path in the law.

Prior to the final hearing, the parties stipulated to all issues except equitable distribution of certain assets, potential imputation of income to the husband, alimony, child support, and attorney's fees. As previously indicated, we will turn to the issue of imputed income, which impacts the amounts awarded for alimony, child support, and potentially, attorney's fees.

The final judgment specifically states that "[t]he Husband is voluntarily underemployed, therefore a gross annual income of $200,000.00 will be imputed to the Husband for the purpose of establishing child support and alimony." We begin with the widely-accepted notion that "[t]he very concept of imputed income is to require those who are able to do so to contribute to their support or to the support of those for whom they are responsible." Daly v. Daly, 679 So.2d 36, 37 (Fla. 5th DCA 1996). For purposes of child support, the court will be required to impute income to a parent who is voluntarily unemployed or underemployed, pursuant to section 61.30(2)(b), Florida Statutes (2003), which provides:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent's part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or under-employment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.

Unlike section 61.30(2)(b), the statutory provisions that govern alimony awards found in section 61.08, Florida Statutes (2003), do not specifically provide for imputation of income to a spouse. When determining whether to award alimony based on imputation of income to a spouse, some decisions advert to the provisions of section 61.08(2)(d) and (g), Florida Statutes (2003), which state that "the court shall consider all relevant economic factors," which include "[t]he financial resources of each party" and "[a]ll sources of income available to either party." See Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003)

; Bacon v. Bacon, 819 So.2d 950 (Fla. 4th DCA 2002); Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999); Shrove v. Shrove, 724 So.2d 679 (Fla. 4th DCA 1999); see also Cochran v. Cochran, 819 So.2d 863 (Fla. 3d DCA 2002); Warren v. Warren, 629 So.2d 1079 (Fla. 3d DCA 1994). Other decisions, including decisions from this court, simply apply the often repeated general rule that "[a] court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts." Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004) (quoting Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997)); see Andrews v. Andrews, 867 So.2d 476 (Fla. 5th DCA 2004); Solomon v. Solomon, 861 So.2d 1218 (Fla. 2d DCA 2003); Bronson v. Bronson, 793 So.2d 1109, 1111 (Fla. 4th DCA 2001); Davis v. Davis, 691 So.2d 626 (Fla. 5th DCA 1997) ("A court, however, may impute income upon a showing that there is a capability to earn more by the use of more diligent efforts."); Kovar v. Kovar, 648 So.2d 177, 178 (Fla. 4th DCA 1994) ("[W]hen a husband obligated to pay support voluntarily reduces his income, the trial court has discretion to impute to him the income he is capable of earning."). Hence, the lack of a specific legislative directive similar to that found in section 61.30(2)(b) has not proved to be an impediment to imputation of income for purposes of awarding alimony.

The courts may also impute income to a spouse for purposes of awarding attorney's fees. See Smith; Arouza v. Arouza, 670 So.2d 69 (Fla. 3d DCA 1996)

; see also Wilkinson v. Wilkinson, 714 So.2d 524 (Fla. 5th DCA 1998). In Smith, the court stated:

The statute addressing attorney's fees, suit money, and costs contemplates the trial court's consideration of "the financial resources of both parties," including the parties' relative financial need or ability to pay. § 61.16(1), Fla. Stat. (1997); Satter v. Satter, 709 So.2d 617 (Fla. 4th DCA 1998) (on mot. for reh'g); Kartzmark v. Kartzmark, 709 So.2d 583 (Fla. 4th DCA 1998). In deciding whether an award of attorney's fees is justified, a trial court may impute income to a voluntarily unemployed or voluntarily underemployed party. Arouza v. Arouza, 670 So.2d 69 (Fla. 3d DCA 1995). Taken together, these statutes support the former husband's point that the imputation of income to him affected the trial court's decisions regarding child support, alimony, and attorney's fees and costs.

737 So.2d at 643.

A common thread running through all of the decisions is that the voluntary unemployment or underemployment of a spouse or parent is a factor that the courts consider in determining whether to impute income for purposes of awarding child support, alimony, and attorney's fees. As this court held in Andrews, "[t]o impute income to a former spouse, the trial court must find that the unemployment is voluntary, and resulted from either the spouse's pursuit of his or her own interests, or a less than diligent and bona fide effort to find employment paying at a level equal to that formerly enjoyed." 867 So.2d at 478 (citation omitted). While this standard is generally applied in most cases involving imputation of income, a different standard has emerged when the parent or spouse ceases full-time employment to seek enhancement of his or her education.

In cases involving educational enhancement, the courts have found the best interest of the support recipient to be the better standard to apply to determine whether imputation of income is appropriate. The genesis of this relatively new standard is the decision in Overbey v. Overbey, 698 So.2d 811 (Fla.1997), which involved the issue of whether it was appropriate to modify child support obligations based on the parent's desire to enhance her education. Noting the confusion among the district courts when faced with the imputation of income to a parent who makes a voluntary decision to return to school, the court held that resolution of the issue should depend on whether the reduction would be in the best interest of the recipient or the children rather than on whether the reduction was voluntary. Id. at 814-15.

The decision in Overbey was subsequently applied by this court in Pribble v. Pribble, 800 So.2d 743 (Fla. 5th DCA 2001), to an appeal of a final judgment of dissolution of marriage rather than a modification petition. In Pribble, after awarding primary physical custody of the minor children to the father, the trial court held that because the wife voluntarily ceased employment to go back to school to attempt to obtain a law degree, the wife was voluntarily unemployed and thus it was proper to impute income to her for purposes of child support. This court reversed that part of the final judgment and remanded the case to the trial court with instructions to determine whether the wife's educational pursuits were in the best interest of the children. This court explained:

Overbey indicated that a court may enter an order modifying child support payments when the modification is found to be necessary in the best interest of the child or when there is a substantial change of circumstances. § 61.13(1)(a), Fla. Stat. In Ledbetter v. Bell, 698 So.2d 1272 (Fla. 4th DCA 1997), the former wife sought to have the trial court impute income to the husband, a licensed medical doctor who was pursuing a lengthy post-graduate fellowship program. In Ledbetter, the appellate court noted that the trial court in its written order had focused primarily on the fact that the children in that case, because of their ages, would never benefit from the husband's prolonged educational pursuits. Thus, the trial court concluded that it was appropriate to impute income to the husband.

Pursuant to section 61.13(1)(a), Florida Statutes, in a proceeding for dissolution of marriage, the court may at any time order either or both parents who owe a duty of support to a child

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