Lafferty v. Lafferty

• Decision Date: 28 March 2014
• Docket Number: No. 2D12–4540.,2D12–4540.
• Citation: 134 So.3d 1142
• Court: Florida District Court of Appeals
• Parties: Henry LAFFERTY, Jr., Appellant, v. Lora LAFFERTY, Appellee.

134 So.3d 1142

Henry LAFFERTY, Jr., Appellant,

v.Lora LAFFERTY, Appellee.

No. 2D12–4540.

District Court of Appeal of Florida, Second District.

March 28, 2014.

Edward B. Sobel of Edward B. Sobel, P.A., Bradenton, for Appellant.

Susan J. Silverman, Sarasota; and Melton H. Little of Kallins & Little, P.A., Palmetto, for Appellee.

CRENSHAW, Judge.

Henry Lafferty, Jr., Former Husband, appeals the final judgment of dissolution of his marriage to Lora Lafferty, Former Wife.We affirm the majority of the thorough judgment without comment; but because the court erred in calculating the retroactive alimony and in failing to properly conduct an imputation analysis, we reverse on those issues as well as two additional calculations.

I.Background

The parties married in 1988, and Former Wife filed her petition for dissolution in 2010.During and after the marriage, Former Husband served in the United States Army and, as relevant here, Former Wife was a nurse manager at a local hospital.In the final judgment, the court awarded Former Wife retroactive alimony of $29,423 and durational, periodic alimony of $1000 monthly for five years as well as attorney's fees.¹The retroactive alimony award did not include a $1000 setoff for rent Former Husband paid.Former Wife's Florida nursing license lapsed after she resigned her position at the hospital, but she now has a South Carolina nursing license.Though able to work, Former Wife was unemployed at the time of trial, which she testified was based on unavailability of jobs.Most of the material calculations in this case were done by Former Wife's CPA, Mr. Miller.

II.Calculation of Retroactive Alimony

Though we affirm the judgment in its allowance of retroactive alimony, in reviewing the record, we must agree with Former Husband that the amount of retroactive alimony awarded was error.Although the final judgment cites to the schedule prepared by Mr. Miller, the amounts therein are not all supported by competent, substantial evidence.SeePonce v. Ponce,997 So.2d 1120, 1123(Fla. 3d DCA2008).Rather, it appears that Mr. Miller did not look to Former Wife's need during this time period but rather added the net disposable income attributed to each party together and decided Former Wife was entitled to an amount that is forty-five percent of the total.That percentage does not appear to have any basis in the record.From that number Mr. Miller subtracted Former Wife's net, disposable income which resulted in the amount the trial court awarded: $29,423.While the final judgment says Former Wife testified to her need of this amount, Former Wife never actually quantified any amounts.Thus, there is a dearth of competent evidence of both Former Wife's need for this amount and the reason for the percentage awarded to her.Accordingly, we are compelled to reverse this portion of the judgment and remand for further proceedings to determine the amount of retroactive alimony.Regarding any time period for which the court awards retroactive alimony and Former Wife was not employed, the court must also undertake an imputation analysis as described below.

III.Lack of Imputation to Former Wife

The record in this case, including the final judgment, reflects that the court did not conduct an analysis regarding imputation of income to Former Wife as part of its alimony award.The framework the court uses to determine whether imputation is necessary and, if so, how to calculate an amount is an issue of law we review de novo.SeeTarkow v. Tarkow,128 So.3d 82, 84(Fla. 2d DCA2013)(citingKaaa v. Kaaa,58 So.3d 867, 869(Fla.2010)).In computing an alimony award where one spouse has become unemployed, the court must consider whether that change in circumstance was voluntary.Valentine v. Van Sickle,42 So.3d 267, 274(Fla. 2d DCA2010)(citingGildea v. Gildea,593 So.2d 1212, 1213(Fla. 2d DCA1992)).If so, the court must then determine the diligence of that spouse in finding additional income.Schlagel v. Schlagel,973 So.2d 672, 675(Fla. 2d DCA2008).When the court concludes that one spouse was voluntarily un- or underemployed and has not been diligent in finding replacement income, the court should, based on competent, substantial evidence, impute income to that party.SeeSchlagel,973 So.2d at 675(citingFitzgerald v. Fitzgerald,912 So.2d 363, 368(Fla. 2d DCA2005);Hinton v. Smith,725 So.2d 1154, 1156(Fla. 2d DCA1998)).A failure to do so is error.SeeRiley v. Riley,14 So.3d 1284, 1290(Fla. 2d DCA2009).

Where there is insufficient evidence to determine the amount to impute, there is a presumption based on the spouse's historical earnings that arises, though it can be rebutted by the spouse to whom income is imputed.SeeGhay v. Ghay,954 So.2d 1186, 1190(Fla. 2d DCA2007)(“[T]he Florida Supreme Court and other district courts have suggested that a presumption arises from a spouse[']s historical earnings that supports a finding the spouse can continue to earn the same amount, absent evidence to the contrary.”(citingGarfield v. Garfield,58 So.2d 166, 167(Fla.1952);Seitz v. Seitz,471 So.2d 612(Fla. 3d DCA1985))).And in those cases where the court cannot use historical earnings, for example if there is evidence of changed circumstances, it should at least impute the minimum wage.Riley,14 So.3d at 1289–90.Thus, if the court determines on remand that Former Wife was voluntarily unemployed and if it determines that she has not been diligent in replacing that income, it must impute some income to her.It is within the court's discretion to determine the amount, though it must at least reflect income based on the minimum wage.

IV.Setoff for Monies Already Paid

The court determined that retroactive alimony covering the alimony pendente lite was necessary and ordered retroactive alimony in the sum of $29,423.See§ 61.071, Fla. Stat.(2010).The court found that Former Husband made a one-time $1000 payment for Former Wife's rent.He argues that this $1000 payment should have been set off against the retroactive alimony.We agree.

“While it is true that a setoff against alimony payments is generally frowned upon, seeChappell v. Chappell,253 So.2d 281(Fla. 4th DCA1971), courts have nonetheless recognized that a setoff may be appropriate where there are compelling equitable criteria.”Smith v. Smith,691 So.2d 545, 546(Fla. 4th DCA1997)(citingFilaretou v. Filaretou,652 So.2d 952, 954(Fla. 2d DCA1995)(determining that payment of expenses of the marital home required...