McCants v. McCants
| Decision Date | 09 July 2008 |
| Docket Number | No. 2D07-473.,2D07-473. |
| Citation | 984 So.2d 678 |
| Parties | Carol Betina McCANTS, Appellant, v. Tyrone Lee McCANTS, Appellee. |
| Court | Florida District Court of Appeals |
Theodore N. Taylor of Law Office of Theodore N. Taylor, P.A., Plant City, for Appellant.
No appearance for Appellee.
Carol McCants (the Wife) appeals a final judgment of dissolution of marriage and challenges the trial court's rulings concerning equitable distribution, imputation of income, alimony, emancipation of the parties' older child, and attorney's fees. Tyrone McCants (the Husband) acted pro se in the trial court and filed no brief in this appeal. We affirm the dissolution of marriage; the trial court's determination that the parties' seventeen-year-old daughter, who had her own child, was emancipated; and the grant of shared parental responsibility of the remaining minor child, Jaron, with the Wife designated as primary residential parent and the Husband designated as secondary residential parent. We reverse the financial aspects of the judgment, including the determination of the parties' incomes, alimony, Jaron's child support, equitable distribution, and attorney's fees and remand for the trial court to reconsider these issues.
The parties were married for six years but had also lived together for the previous twelve years. Their daughter, Katrina, was born in 1989, and their son, Jaron, was born in 2004. At the time of the final hearing, both children and Katrina's one-year-old child lived with the Wife.
The trial court conducted the final hearing on December 12, 2006, and only the parties testified. The Husband worked as a long-distance truck driver. Our record contains 1099 forms for the Husband that reflect approximate income of $197,000 for 2003, $215,000 for 2004, and $268,000 for 2005. The record also contains the Husband's financial affidavit, which is somewhat confusing. It reflects gross income for 2005 of $268,450.70, but it also lists monthly gross income of $20,000 and a net monthly income of $18,900. The affidavit also reflects substantial expenses related to the Husband's trucking job, most notably $4000 per month for "diesel for work" and "loading and unloading labor" of $2000 per month. The affidavit shows total monthly expenses of $13,291. Then, in the summary portion of the affidavit, it states the Husband's total present monthly net income as "$8000 (varies)" even though page 3 of the affidavit states his net monthly income as $18,900. The Husband subtracted expenses of $13,291 from the income amount of $8000, reflecting a monthly deficit of over $5000.
The Husband testified that some of the monthly expenses shown on his financial affidavit were trucking expenses. He also testified that over the course of several years trucking revenues had decreased and diesel and oil prices had increased. The Husband's tax returns are not contained in our record, but in response to the court's question as to the amount of income on which he pays taxes he stated, "I pay taxes on thirty — between 30,000 to 32,000." He testified that he and the Wife managed to make the monthly payments on their debts and that his contribution was sometimes $2500, although sometimes he paid more.
The Wife testified through a sign language interpreter. She worked for the Husband for nine years, from 1995 to 2004. She did paperwork and helped move furniture. She was not paid all the time, and she "didn't always know how much."
The Wife testified that she has been on disability for about seven years. She explained, "I used to work at Wal-Mart, but then my back it seemed to hurt me all the time and so they gave me disability for that." She also testified that because she is deaf it was very difficult to look for a job. The Wife received $865 in disability income per month, and her daughter, Katrina, received $432 per month based on the Wife's disability. Katrina's disability income was used for household expenses, but her payments would end when she turned eighteen.
The Wife's updated financial affidavit reflects a monthly net income of $865 comprised of her Social Security disability benefits. The affidavit shows expenses of $4113.03 for a monthly deficit of $3248.03, and it values the marital home at $200,000 with a mortgage of $100,551.04. The monthly mortgage payment was $1192.33. The parties' affidavits reflect various credit card accounts and other liabilities.
The Wife testified that she was forty years old, that she had not worked outside the home from the time Jaron was born in 2004, and that she stays home and cares for Jaron. She graduated from high school in 1984 and completed a vocational computer data entry course in 1986.
The Wife stated that she could not afford to keep the house, to buy a vehicle, or to pay insurance without help from the Husband and that she also needed help for utilities and other bills.
The trial court found that the Wife could earn a net income amount of $100 per week, resulting in imputed income of $433 per month. Thus, with the Wife's disability income of $865 per month, the trial court determined her total monthly income to be $1298. The Wife contends, and we agree, that the trial court did not have competent, substantial evidence to support its finding concerning imputed income. See Gruber v. Gruber, 857 So.2d 329 (Fla. 2d DCA 2003); LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2d DCA 2003).
Gruber involved an alimony modification proceeding. The former husband's income consisted of only disability benefits, and a doctor testified that the former husband "was unable to do any kind of work, even sedentary work." 857 So.2d at 330. The former husband admitted that after his surgery "he had been on a riding lawnmower for about five minutes," that he had taken a trip by plane, and that he drove himself to the hearing. Id. The trial court determined that the former husband was Id. The trial court imputed an unspecified amount of income to the former husband when it ordered him to pay a reduced amount of $75 per week alimony. Id. at 331. This court reversed the reduced alimony award because the record contained no competent, substantial evidence to support an imputation of income. Id. This court pointed out that although the former wife had testified that the former husband "`should be able to sit behind a computer,' the record contains no evidence or testimony that the Former Husband was employable or capable of earning an income." Id.
Similarly, in LaFlam, we reversed the imputation of $4000 per month income to the former wife. We concluded that the imputed amount was not supported by the evidence and reiterated that "there must be competent, substantial evidence supporting the conclusion that the spouse could earn the imputed amount." 854 So.2d at 810.
Here, the Husband failed to put on any evidence that the Wife was employable. The Wife receives Social Security disability benefits as a result of back problems that began while she worked at Wal-Mart. However, there was no testimony regarding when she worked there, how much she earned, or what duties she performed. Although the Wife worked for the Husband from 1995 to 2004 doing paperwork, invoicing, and helping move furniture, she stopped working when their son was born in 2004. She stayed home to take care of their son, who was two years old at the time of the final hearing. She also explained that it was very difficult for her to look for a job because she is deaf.
The Husband had the burden to present evidence of the Wife's employability. See Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005) (). The record contains no evidence that there were positions available for the Wife. In addition, in imputing $100 of net income per week to the Wife, it is unclear whether the trial court took into account the cost of child care for the parties' young son. Based on the record before us, we reverse the court's determination that the Wife could earn $100 net income per week and remand for the trial court to reconsider the alimony provisions based on the Wife's income without the imputed income.
In the final judgment the trial court recognized that there was conflicting testimony regarding the Husband's income and stated that the Husband claimed his income was between $2000 and $2500 per month, while the Wife claimed that his income was over $9000 per month. The trial court then proceeded to find, without explanation, that the Husband's net monthly income was $4500. The Wife's counsel argues on appeal that the Husband's net income "is much greater than" the trial court's finding of $4500. However, the Wife's counsel does not suggest on appeal what finding the trial court should have made as to the amount of the Husband's net income.
In Rodriguez v. Rodriguez, 958 So.2d 436, 436 (Fla. 3d DCA 2007), the Third District reversed a determination that the husband's income was $80,000 when the evidence failed to support an imputation of income or that the husband actually earned that amount. The court remanded for the trial court to reconsider the husband's income and to reconsider the alimony and child support awards. Id. at 437; see also LaSala v. LaSala, 806 So.2d 602, 603-04 (Fla. 4th DCA 2002) (). The Third District in Rodriguez also noted that the trial court could change the equitable distribution, if appropriate. 958 So.2d at 437 n. 3.
Here, the Husband's 1099 forms, his financial affidavit, and his testimony reflect expenses and varying amounts of gross and net income. Subtracting...
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