Posted by Nydia Streets of Streets Law in Florida Divorce
When a party is self-employed, income can fluctuate which may make it difficult to assign a fair or consistent income amount to the party. This affects child support and alimony calculations, along with rulings on a request for attorneys’ fees and costs. At issue in the case Waldera v. Waldera, 3D18-1546 (Fla. 3d DCA August 5, 2020) was the former wife’s complaint that the trial court did not correctly calculate the former husband’s income for purposes of calculating his support obligations.
During the parties’ marriage, the former wife worked at the former’s husband law firm where he worked as an attorney. When the parties’ child was born, the parties agreed the former wife would stop working full-time in order to care for and home school the child. The former wife did home school the child and worked part-time at the firm until 2011. Since that time, she worked sporadically as a book keeper for some clients a few hours a week. The husband continued to work as an attorney.
At the parties’ divorce trial in 2017, the former husband presented evidence regarding his self-employment income which varied over the years. The court ultimately found the former husband’s monthly net income was just under $5,000.00 per month. The former wife was awarded $1,803.00 per month in durational alimony which would end upon the parties’ child reaching the age of majority. Her request for attorney’s fees and costs was denied. Income was imputed to the former wife by the trial court based on its belief that home schooling the parties’ child was unnecessary and that the former wife was voluntarily underemployed. The former wife appealed, taking issue with the income findings (or lack thereof) concerning both the former husband and the former wife.
The appellate court agreed with the former wife that the income findings were insufficient. Regarding the former husband’s income, the court held “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. [. . .] Instead, we simply hold that, since the former husband's historical annual income gave rise to the presumption that he could continue to earn an amount higher than what was ultimately determined by the court, and no explanation or competent, substantial evidence sufficiently rebutted that inference, the trial court necessarily abused its discretion in making a contrary finding. On remand, it is within the lower court's discretion to give the former husband's past earnings the proper consideration they deserve.”
Regarding the former wife’s income, the court held “The finding that the former wife had twenty hours of available time to work per week rested on nothing but the trial judge's suspicion that the child's homeschooling was unnecessary. The former husband opposed the child's testimony being taken, convincing the court below that it was cumulative and redundant. In agreeing with the former husband, the trial judge tellingly commented that it did not doubt what the former wife did, or the time she spent, where it concerned the child's homeschooling, but questioned instead its necessity. However, ‘[g]reat deference should be accorded the joint decision of the parties that the wife should stay home to care for the children,’ especially where ‘a course of conduct’ has taken place and ‘notwithstanding any personal feelings the trial court or this court may have concerning the ultimate wisdom of that decision.’ Zeigler v. Zeigler, 635 So. 2d 50, 54 (Fla. 1st DCA 1994). The trial court's finding that homeschooling was unnecessary and that, accordingly, the former wife had at least twenty hours of available time to work per week was unsupported by competent, substantial evidence. Unrebutted evidence was presented that an agreement had existed between the parties to homeschool the child full time, a course of conduct of over a decade transpired, and the only relevant testimony on the need and adequacy of the conduct admittedly came from the former wife.”
Imputing income to either party in a Florida family law case requires careful steps and considerations. Schedule a consultation with a Miami divorce lawyer to go over the specifics of your case.