Waldera v. Waldera

• Decision Date: 05 August 2020
• Docket Number: No. 3D18-1546,3D18-1546
• Citation: 306 So.3d 1037
• Parties: Carole Lynn WALDERA, Appellant, v. Christopher B. WALDERA, Appellee.
• Court: Florida District Court of Appeals

306 So.3d 1037

Carole Lynn WALDERA, Appellant,

v.Christopher B. WALDERA, Appellee.

No. 3D18-1546

District Court of Appeal of Florida, Third District.

Opinion filed August 5, 2020

Paul Morris ; Stok Kon + Braverman and Alan Jay Braverman (Fort Lauderdale), for appellant.

Birnbaum, Lippman & Gregoire, PLLC and Nancy W. Gregoire (Fort Lauderdale), for appellee.

Before SCALES, HENDON and LOBREE, JJ.

LOBREE, J.

Carole Lynn Waldera (the "former wife") appeals from a final judgment of dissolution of marriage from Christopher Waldera (the "former husband"). She challenges the trial court's calculation of the former husband's income, as well as her imputed income, as unsupported by competent, substantial evidence. We agree and reverse.¹

Facts and Procedural Background

The parties married in 1999. At the time, the former wife had a bachelor's degree in accounting and worked full time as a bookkeeper at the former husband's law firm, where he worked as an attorney. Three years later, as a result of their only child's birth, they agreed that she would stop full time work and focus on raising and homeschooling the child, which she has done to this day. She continued to work part time at the law firm until 2011. Since then, she has only worked as bookkeeper sporadically for some private clients a few hours per week. The former husband has continued to work as an attorney to this day. In 2015, however, the marriage became irretrievably broken and dissolution proceedings were initiated below.

At trial, in 2017, the court was presented with the former husband and wife's testimony, along with their respective expert witnesses, financial affidavits, and other supporting documentation regarding their assets and liabilities. The trial court asked the parties to submit post trial memoranda on key legal issues and relied on them in reaching its conclusions. A few months later, in early 2018, the lower court rendered its judgment, granting only $1,083 per month in durational alimony to the former wife until their child came of age, as well as denying her request for attorney's fees.

In calculating the alimony and child support awards, the trial court relied on its determination of the former husband's income, as well on its imputation of income to the former wife. As to the former husband's income, the order provides: "The Court accepts the Husband's analysis and numbers as to his income." The court found "that the Husband's net income is $4,592.46 per month for the complete year of 2016 as pursuant to analysis by ... the Husband's forensic accountant."

As to the former wife's income, the order observed: "The Court finds that the Wife's gross income is $3,250," explained as "20 hours imputed income at $25 per hour times 4.333 weeks per month equaling $2,166 per month in imputed income, plus $1,083 per month in durational alimony." It concluded that her "net income is thus $2,786.54 per month (net) inclusive of the alimony set forth herein." Separately, the court found that, given "her abilities and the market, and her available time, that 20 hours a week at a rate of $25.00 an hour is proper to impute that amount of income," the imputed income being "$2,166 per month (20 times $25 dollars per hour times 4.333 weeks per month)." The former wife unsuccessfully moved for rehearing, arguing in pertinent part that she was entitled to a higher amount of alimony, since the evidence at trial did not support the court's finding of such a low income for the former husband or its imputation of income to her.

Standards of Review

"A trial court's determination of a party's income for purposes of establishing support obligations must be supported by competent substantial evidence." Sallaberry v. Sallaberry, 27 So. 3d 234, 236 (Fla. 4th DCA 2010). "However, a trial court's legal conclusions ... are reviewed de novo for clear error." Valladares v. Junco-Valladares, 30 So. 3d 519, 523 (Fla. 3d DCA 2010). Additionally, whereas the trial court's decision to impute income is reviewed for abuse of discretion, Cura v. Cura, 45 Fla. L. Weekly D47, ––– So.3d ––––, ––––, 2020 WL 20625, at *2 (Fla. 3d DCA Jan. 2, 2020), "[t]he 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." Lafferty v. Lafferty, 134 So.3d 1142, 1144 (Fla. 2d DCA 2014).

The Former Husband's Income

The former wife primarily argues that the trial court erred in finding the former husband's current net income to be only $4,592.46 per month, since it reached that conclusion by relying solely on his income for the year 2016. In determining alimony, the lower court was required to make findings on "[a]ll sources of income available to either party." § 61.08(2)(i), Fla. Stat. (2016). "Income" is defined as "any form of payment to an individual, regardless of source," including "wages, salary, commissions and bonuses," and "compensation as an independent contractor." § 61.046(8), Fla. Stat. (2016). Courts must consider "all relevant economic factors," including "[a]ll sources of income," " ‘net worth, past earnings, and the value of the parties’ capital assets.’ " Vega v. Vega, 877 So. 2d 882, 883 (Fla. 3d DCA 2004).

Here, the trial court was presented with unrebutted documentary evidence and witness testimony of the former husband's income from 2009 through 2016. At trial, the Husband's income tax returns for 2009-16 showed net annual incomes ranging from a lowest of $97,021 (2010) to a highest of $227,748 (2016). The net monthly income for these years appears to range between $9,426 and $18,979. The trial court, however, seized only upon the year 2016, during which the former husband's gross income was $268,755. Reasoning that almost $200,000 of that income came from awards in cases arising from an oil spill and were, thereby, non-recurring and to be excluded from consideration, it "accept[ed] the husband's analysis and numbers" as shown in his exhibit summary, which alleged an annual net income of $55,109.46 (and a monthly net income of $4,595.46). The court's sole reliance on the year 2016, however, was error.

"The 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." Mata v. Mata, 185 So. 3d 1271, 1272-73 (Fla. 3d DCA 2016). See Garfield v. Garfield, 58 So. 2d 166, 167-68 (Fla. 1952) (observing that historical ability to earn $350 net per week, "will be presumed to continue unless the contrary is shown," and holding that, if appellant's "ability to earn that amount of money had changed ... he was called upon to make an explanation or an answer" and "failed to do so"); Lascaibar v. Lascaibar, 658 So. 2d 170, 171 (Fla. 3d DCA 1995) (holding that "the amount attributed [to the former husband], $50,000.00 per annum, was far less than the sum indisputably shown to have been earned by the husband during the course of the marriage").

By the trial court's and the parties’ own admission, the former husband's income in 2016 was anomalous. The only explanation for the change or purported loss of ability to continue earning historical amounts of annual income was that a significant portion of 2016 income came from a non-recurring source. Even if this was the proper characterization of such income, it failed to rebut the presumption of continued ability to earn. Compare Mata v. Mata, 185 So. 3d 1271, 1272-73 (Fla. 3d DCA 2016), with LaSala v. LaSala, 806 So. 2d 602, 604 (Fla. 4th DCA 2002). If a court's determination of income is erroneous where "there was no evidence that the husband's income in 1997, which was substantially greater than his average income for the preceding three years, would continue," Lauro v. Lauro, 757 So. 2d 523, 526 (Fla. 4th DCA 2000), a determination is conversely erroneous where, as here, there is no evidence that the former husband's most recent and anomalous income either would continue, represented his current reality, or sufficiently rebutted the presumption of his continued ability to earn what he had historically earned.

The former wife contends that the trial court erred by failing to average the income from immediately preceding years. "Averaging income for purposes of assessing alimony and child support has been employed in determining the awards." Peetluk v. Huffstetler, 840 So. 2d 1175, 1177 (Fla. 5th DCA 2003) (reversing average income only because it failed to "realistically represent [former husband's] annual income"). Averaging can be required in some circumstances. See Dep't of Revenue ex rel. Shirer v. Shirer, 197 So. 3d 1260, 1264 (Fla. 2d DCA 2016) (reversing determination that relied solely on three quarters from one year, whereas "when we average the Father's prior five years of earnings ... we calculate that his average monthly gross income is [different]."); Shudlick v. Shudlick, 618 So. 2d 740, 741 (Fla. 4th DCA 1993) (affirming award because "there is evidence to support ... that the husband's average annual income is at least $90,000 ... [and] [t]his evidence appears to be ignored by the former husband in his contentions about support and alimony."); Lanzetta v. Lanzetta, 563 So. 2d 101, 102 (Fla. 3d DCA 1990) (reversing alimony award allocating only $18,000 per year to wife where husband's average income in the prior three years had been $196,000).

However, because "[p]ast average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay," Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994), it cannot be said that, here, the trial court could only have meaningfully considered past earnings by averaging them. We, therefore, decline to express any view of whether the trial court should have averaged the former husband's past earnings. Instead, we simply hold that, since the former husband's historical annual income gave rise to the...