Stebbins v. Stebbins

• Decision Date: 25 April 2000
• Docket Number: No. 1D99-786.,1D99-786.
• Citation: 754 So.2d 903
• Parties: Lloyd H. STEBBINS, Appellant, v. Donna J. STEBBINS, Appellee.
• Court: Florida District Court of Appeals

754 So.2d 903

Lloyd H. STEBBINS, Appellant, v. Donna J. STEBBINS, Appellee.

No. 1D99-786.

District Court of Appeal of Florida, First District.

April 25, 2000.

Lawrence C. Datz of Datz, Jacobson, Lembcke & Wright, P.A., Jacksonville, for Appellant.

Charles E. Willmott, Jacksonville, for Appellee.

BROWNING, J.

Lloyd H. Stebbins (Appellant), the former husband, appeals the trial court's final judgment entered upon petitions filed by Appellant and his former wife, Donna J. Stebbins (Appellee), n/k/a Donna Allen, seeking modification of a supplemental final judgment of dissolution of marriage; he appeals also the court's order holding him in contempt and ordering him to pay a purge amount or else report to jail. Appellant contends that the lower court reversibly erred 1) by finding that he was voluntarily unemployed, thereby justifying the imputation of income, based on his failure to search for work in other states; 2) by imputing income to him also based on the finding that he had refused to look for work outside his narrow field of employment; 3) by holding him in contempt for failure to comply fully with his child-support obligation; 4) by ordering him to pay a purge amount or else go to jail for contempt, without making an affirmative finding of his present ability to pay the purge amount; and 5) by ordering him to contribute to Appellee's attorney's fees. Given the need for the trial court to reconsider the factors and make findings pertinent to the threshold issue of whether Appellant was voluntarily unemployed or underemployed—a determination that will affect whether income can be imputed to him—we reverse the final judgment on the parties' petitions for modification of the supplemental final judgment of dissolution of marriage, and remand for further proceedings consistent with this opinion. As the trial court's findings on remand regarding the question of voluntariness will impact the determination of whether Appellant was in contempt for failure to make full payments of child support, we reverse the order of contempt and the purge provision, with instructions that the lower tribunal make the necessary findings pursuant to Bowen v. Bowen, 471 So.2d 1274 (Fla.1985), and Scapin v. Scapin, 553 So.2d 319, 320 (Fla. 1st DCA 1989).

The parties' 14-year marriage was dissolved by a July 1996 final judgment. They stipulated that Appellee would be the primary residential parent of their daughter, who is now 16 years old. Pursuant to the parties' written agreement, the trial court entered a February 1998 consent supplemental final judgment of dissolution of marriage modifying the final judgment and increasing Appellant's biweekly child support obligation to $420. Only a month later, Appellant filed a supplemental petition for modification of the consent judgment on the grounds that during the interim period, his ability to pay the agreed amount of support was substantially diminished due to forced 50 per cent reductions in his work hours and earnings arising from his employer's financial problems. Less than a month later, he amended his petition to allege that he had been involuntarily terminated from his employment and anticipated his reduced earnings to continue indefinitely. Without court authorization, Appellant began pro-rating the amount of his child support payments in direct proportion to his significantly reduced earnings.

Appellee responded with allegations that Appellant continuously and purposely had remained underemployed outside his area of expertise as the parties' child's support needs increased. Appellee counter-petitioned for an increase in child support.

After Appellant's part-time teaching work ended his entitlement to unemployment compensation, Appellee filed a motion for contempt alleging that Appellant was in willful contempt of court for failing to comply fully with the requirement to pay $420 biweekly for child support, and that he owed more than $4,000 in support. Both parties moved for attorney's fees and costs. For the trial court's benefit, we shall discuss the issues of imputation of income, the finding of contempt, and the responsibility for contributing to Appellee's attorney's fees separately, although the lower court's initial decision to impute income bears upon the other rulings.

IMPUTATION OF INCOME

The Florida child support guidelines statute mandates the imputation of income under the following 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 the parent to stay home with the child.

§ 61.30(2)(b), Fla. Stat. (Supp.1998); Smith v. Smith, 737 So.2d 641 (Fla. 1st DCA 1999).

Appellant, who is in his mid-fifties, has a B.S. degree in chemical engineering from Bucknell and 19 graduate-level credits (2/3 of the credit requirements for an M.A. degree) from Lehigh. He is a professional engineer with a field concentration in environmental issues such as industrial regulatory compliance. His employment history since 1989 includes extended periods with annual earnings generally ranging from $65,000 to just over $90,000 in positions such as division manager, environmental consulting manager, and corporate vicepresident, punctuated by several extended periods of unemployment or only part-time employment. He has worked for paper mills, chemical plants, pharmaceutical concerns, food and beverage plants, and heavy-duty manufacturers.

At the time of the dissolution hearing, Appellee was a part-time telephone service representative at Barnett Card Services earning $9.90 per hour for 20 hours a week and grossing $792.20 monthly. She testified to having received recent notice that the parent employer, Nations Bank, was moving a department to North Carolina in January 1999 and would terminate her job in Jacksonville and provide 4.2 weeks' pay. She was looking for another job.

In the challenged order, the trial court made the following findings to support its conclusion that Appellant's unemployment beginning in May 1998 initially was involuntary but subsequently became voluntary, thereby allowing income to be imputed to him for determining his child support obligation:

The Former Wife presented sufficient evidence through the testimony of an expert witness that the Former Husband failed to use his best efforts in attempting to obtain new employment and that the Former Husband acted unreasonably in limiting his job search to the immediate Jacksonville area and to the narrow field of engineering. The Former Husband presented evidence that during the initial 90 days following his termination ... he performed a diligent search for employment in his field limited to the Jacksonville area. However, the Court finds the Former Husband should have found adequate employment within 90 days and would have used his best efforts in obtaining employment had he conducted a broader job search of the southeast to include Georgia, Texas, Louisiana, and other parts of Florida if he wished to remain employed in the field of engineering which should have yielded a job with a salary between $60,000.00 and $65,000.00 based upon the testimony of the Wife's expert. He [Appellant] did not sufficiently consider other areas of full-time employment outside his chosen field in the Jacksonville area.

Former Husband testified that he voluntarily limited his search for employment to the Jacksonville area. The Former Husband further testified that the primary focus of his job search was in the field of engineering. The Former Husband's work history includes significant experience in the management field as well as engineering, but the Former Husband admitted that his job search within the management field was very limited. The Former Wife's expert witness testified that the Former Husband has also unreasonably limited his job search to the engineering field, and that the Former Husband's extensive management experience qualifies him for numerous positions outside of the engineering field. The Former Husband's employment opportunities would be greatly enhanced if he broadens his search to include the management field. In his own testimony, the Former Husband stated that "management is management" and his management experience would qualify him for similar positions outside the engineering field; namely, he has experience in general engineering, sales, marketing and general management, including executive management as a vice president, general manager, and director for various former employers. In limiting his search, the Former Husband has failed to utilize his best efforts in securing adequate employment. The Former Husband's initial unemployment was involuntary; however, the Former Husband's continued underemployment is voluntary since he could have secured adequate employment within 90 days if he had used his best efforts in his search for employment. See Desilets v. Desilets, 377 So.2d 761, 764 (Fla. 2d DCA 1979). Once it became apparent that full-time jobs in engineering in Jacksonville were not going to be available, other areas of full-time employment should have been explored.

Since the Former Husbands's [sic] continued unemployment is voluntary, the Court cannot find that a significant change of circumstances exists to support the Former Husband's Petition for Modification in order to reduce his child support payments. See Burdett[e] v. Burdette, 681 So.2d 862, 863 (Fla. 5th DCA 1996);

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