Smith v. Smith, 98-3798.

• Decision Date: 03 August 1999
• Docket Number: No. 98-3798.,98-3798.
• Citation: 737 So.2d 641
• Parties: Thomas Joseph SMITH, Appellant, v. Julie Ann SMITH, Appellee.
• Court: Florida District Court of Appeals

737 So.2d 641

Thomas Joseph SMITH, Appellant, v. Julie Ann SMITH, Appellee.

No. 98-3798.

District Court of Appeal of Florida, First District.

August 3, 1999.

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A.; and David H. Levin of Levin, Middlebrooks, Thomas, Mitchell, Greene, Echsner, Proctor, & Papantonio, P.A., Pensacola, for Appellant.

E. Jane Brehany, Pensacola, for Appellee.

BROWNING, J.

Thomas J. Smith, the former husband, appeals a final judgment dissolving his nearly 18-year marriage to Julie A. Smith. The former husband contends that the trial court erred by imputing income to him "to the extent of his financial ability as it existed at the time of final hearing." Because the awards for child support ($2,088 monthly), permanent alimony ($712 monthly), and attorney's fees and costs ($31,214.62) all were based partly on the level of income imputed to the former husband, he seeks reversal of the provisions in the final judgment addressing these awards, and remand of the case for further proceedings. Finding no abuse of discretion in the lower tribunal's imputation of income, we affirm.

In a dissolution of marriage proceeding, each party's sources of income and ability to pay are factors to be considered in determining whether alimony, child support, or attorney's fees are appropriate, and if so, in what amounts. In the final judgment, the trial court found that "[t]he only sources of income available to either party are their respective salaries, passive income generated from liquid assets and, eventually, retirement income."

The statute addressing child support guidelines mandates the imputation of income under certain enumerated circumstances:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such unemployment 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 underemployment, 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 a parent to stay home with the child.

§ 61.30(2)(b), Fla. Stat. (1997); Thilem v. Thilem, 662 So.2d 1314, 1316-17 (Fla. 3d DCA 1995). The statute governing the various options relating to alimony requires the trial court to include findings of fact relative to "all relevant economic factors," including "[a]ll sources of income available to either party" and "any other factor necessary to do equity and justice between the parties." § 61.08, Fla. Stat. (1997); Huntley v. Huntley, 578 So.2d 890 (Fla. 1st DCA 1991); Platt v. Platt, 103 So.2d 253, 255 (Fla. 1st DCA 1958) (payor spouse's earning capacity, and not just income alone, should be considered along with payee spouse's needs, in determining ability to pay alimony). In determining actual income for purposes of awarding alimony, the trial court must set forth factual findings regarding a spouse's probable and potential level of earnings, the source of actual and imputed income, and any adjustments to income. Jones v. Jones, 636 So.2d 867, 868 (Fla. 4th DCA 1994). While the basis for imputing income and the ability to pay obligations may be inferred from the circumstances of the case, Scapin v. Scapin, 547 So.2d 1012, 1013 (Fla. 1st DCA 1989), the source of income and the amount imputed must be supported by the evidence. Alon v. Alon, 665 So.2d 1110 (Fla. 4th DCA 1996). 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. The issue is whether the record provides a basis for imputing income.

"It is error for a trial court to impute income to a supporting spouse without setting forth the amounts imputed and the sources of this income." Wendroff v. Wendroff, 614 So.2d 590, 595 (Fla. 1st DCA 1993); Cortez-Williams v. Douglass, 659 So.2d 1250 (Fla. 1st DCA 1995); Wood v. Wood, 632 So.2d 720 (Fla. 1st DCA 1994). During the marriage, the former husband was well-employed and, in 1987, he became a "master of the vessel" (captain) in the Merchant Marine, which provided him with an average gross monthly income of $9,025.00. His federal income tax returns reflected his gross earnings of approximately $106,000 (1994); $120,000 (1995); $107,000 (1996); and $109,000 (1997). He was receiving a pay raise in 1998. The final judgment expressly states that the former husband's net monthly income was $6,702.00, or 77.96 per cent of the parties' combined net monthly income of $8,596.00, at the time of the final hearing. To support this finding, we need look no farther than the former husband's testimony (at the first of two final hearings) acknowledging that his financial affidavit correctly reflected a net monthly income of about $6,900.00, after deductions. Alternatively, the former husband testified that he had taken three examinations for postal employment and enjoyed a 10-point veteran's disability preference. He stated that a postal job would pay around $29,000 or $30,000 a year. Upon retirement from the maritime industry, he would be entitled to receive pre-tax monthly pay of $2,400 to $2,600. The former wife, who was employed as a school teacher with the Santa Rosa County School Board, earned substantially less than her husband.

A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. Edwards v. Sanders, 622 So.2d 587 (Fla. 1st DCA 1993). A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the payee spouse is a valid matter to be explored in determining the payor's real ability to pay. Gallant v. Gallant, 468 So.2d 479 (Fla. 2d DCA 1985). When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support. Kovar v. Kovar, 648 So.2d 177 (Fla. 4th DCA 1994); Work v. Provine, 632 So.2d 1119 (Fla. 1st DCA 1994); Maddux v. Maddux, 495 So.2d 863 (Fla. 4th DCA 1986).

For instance, the husband in Maddux originally had earned up to $38,000 annually as a registered landscape architect. In the last two years, he voluntarily lowered his weekly salary from $500 to $200 because of "business difficulties." He said he could earn $12,000 to $18,000 a year if he returned to work for a small developer or a large landscape architecture firm. He anticipated a weekly salary of $250 to $350, and perhaps more, but thought he would have a better chance if self-employed. The trial court found that Mr. Maddux had the expertise and skill to reestablish himself as a landscape architect able to support his child and to pay two years' rehabilitative alimony. Affirming the award of child support and alimony in an amount constituting 108 per cent of Mr. Maddux's claimed present income, the Fourth District Court stated:

Where a former husband has an ability to earn if he so desires, the trial judge may impute an income to the husband according to what he could earn by the use of his best efforts to gain employment equal to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed.

495 So.2d at 864; Desilets v. Desilets, 377 So.2d 761 (Fla. 2d DCA 1979).

The result in Maddux is very similar to the instant ruling. At the dissolution hearings, the former wife claimed that her husband's decision to leave the ship or to retire during the course of the dissolution proceedings was motivated primarily by his wish to reduce his financial obligations to her and to their children. At the first of two final hearings, the former husband testified that he had been on a rotation schedule of four months' work followed by two months' vacation. He indicated that this work schedule would not be in effect anymore because he was eligible for retirement, that he had mutually...