Posted by Nydia Streets of Streets Law in Florida Divorce

A self-employed party in a Florida divorce will need to show evidence of income and business expenses when it comes to determining alimony and child support. In the case Carter v. Carter, 4D19-351 (Fla. 4th DCA April 15, 2020), the former husband appealed a final judgment which imputed income to him for purposes of determining his support obligations.

The parties were married for 15 years before their separation. Two years later, the former husband filed for divorce. The former wife sought alimony, child support and equitable distribution. The former husband contended he did not have the ability to pay alimony. The evidence presented at trial showed the former husband worked at a hospital earning $30,000 annually. He also worked as a massage therapist earning an additional $10,000 per year and made additional money doing lawn service. At the time of the parties’ separation, the former husband quit his job at the hospital and pursued his spa business full time. He also continued his lawn maintenance services.

The trial court found the former husband voluntarily left his employment with the hospital and therefore was underemployed. An income of $55,000 annually was imputed to him considering all sources of income, including barter income. The former wife was awarded $1,000 per month in permanent alimony in addition to child support. The former husband appealed, arguing the imputation of income was error and the court abused its discretion in awarding retroactive support prior to the date of filing the petition for divorce. He also contended that even if the court could award retroactive support, it failed to consider payments he made to offset the retroactive amount.

The appellate court affirmed, holding there was no error in imputing income to the former husband. The court held “Because appellant voluntarily terminated his employment with the hospital, the court could impute income to him. In this case, however, the court was not so much imputing income but trying to ascertain the amount of income appellant received from various sources. To the extent that the court imputed income to appellant from his new business, the trial court discredited some of appellant's testimony with respect to how much he made from tips as well as full-paying clients. ‘Witness credibility, like all disputed issues of fact, is a determination left to the finder of fact.’ Rodriguez v. Reyes, 112 So. 3d 671, 674 (Fla. 3d DCA 2013). The trial court provided a logical explanation of how it arrived at the amount of income, and competent substantial evidence supports its findings with respect to the business income, the additional spa income, the barter income, and the in-kind payments from the brother.”

Next, the appellate court held there was no error in awarding retroactive support since it is allowable by statute to award support back to the date of separation. However, the appellate court did find error with the trial court’s failure to award credit for support payments previously made. The court held “The court did err, however, in failing to give credit to appellant for amounts he paid to appellee for the children's benefits during the entire retroactive period. It concluded that because appellant was paying routine marital expenses, he should get no credit. Section 61.30(17)(b), Florida Statutes requires the court to consider all actual payments made to the other parent for the benefit of the child. Appellant was providing $900 per month to cover the expenses of both the wife and children during this period, including mortgage payments. The court should have allowed credit for these amounts.”

If you are facing a Florida divorce, contact a Miami divorce lawyer to go over your case. It is important to understand how the law may apply to your situation so you get an idea of what to expect in moving forward.