Posted by Nydia Streets of Streets Law in Florida Child Support

When a parent is fired from a job for misconduct, this may be considered voluntary unemployment for purposes of calculating child support in Florida. Imputation of income to a parent in Florida is a two-step consideration which involves presenting evidence that: (1) The unemployment or underemployment is voluntary; and (2) Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order. See Damask v. Ryabchenko, 4D20-2649 (Fla. 4th DCA October 27, 2021).

In the Damask case, child support was established in a final judgment of paternity. The parties entered a settlement agreement which imputed income of over $500,000 annually to the father. Later the father filed a petition for modification of child support, alleging he had been fired from his job as a commodity broker for violating his employment contract. He presented evidence to the trial court that he was unable to obtain a job in the same field because of the conditions surrounding his termination, and that he had moved to California and opened a business from which he was not yet receiving a salary. Relying on a report of a vocational expert hired by the mother over the father’s objection, the trial court denied the father’s petition for a decrease in support and ordered an upward modification. The father appealed.

The appellate court affirmed the trial court’s finding that the father was voluntarily under or unemployed. The court noted “A party’s loss of employment due to misconduct is sufficient to support a finding that the termination of income was voluntary. See Heard v. Perales, 189 So. 3d 834, 836 (Fla. 4th DCA 2015) [. . .] Here, the trial court’s finding that the father’s termination of income was voluntary is supported by competent, substantial evidence. The trial court found the father’s termination from employment as a commodity broker was voluntary because, as the father conceded during his testimony, it arose from his misappropriation of funds.”

However, the court found there was insufficient evidence to impute the level of increased income to the father ordered by the trial court. The appellate court held “In this case, the trial court’s findings that the father’s subsequent underemployment resulted from his pursuit of his own interests or a less than-good-faith effort to find comparable employment were not supported by competent, substantial evidence. Similar to Chipman, the father offered uncontradicted testimony that he could not return to work as a commodity broker in the same capacity as before. The father’s unrebutted testimony established that he had worked in a very small industry of oil-and-gas commodity brokering. After losing his job, the father conducted an extensive job search for six months. However, the father’s name was tarnished in the industry and those jobs were unavailable to him. It was only after his unsuccessful job search that the father started a cannabis company in an effort to increase his income back to its previous level. Notably, the father admitted that he was considering jobs that paid between $40,000 and $60,000. But the father realized this would be insufficient to provide for his child. Significantly, the trial court failed to make the requisite findings concerning the father’s recent work history, his occupational qualifications, and the prevailing earnings in the community for commodity brokers.” The appellate court also determined the former wife’s vocational expert report (admitted without the expert being present to testify) was inadmissible hearsay, and therefore she did not meet her burden to provide competent, substantial evidence.

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