Posted by Nydia Streets of Streets Law in Florida Child Support

When it comes to imputing income to a parent who is alleged to be voluntarily unemployed or underemployed for purposes of calculating child support, the burden of proof is important. The parent alleging underemployment has the burden of proving it. This was an issue in the case Allison v. Allison, 2D21-3677 (Fla. 2d DCA June 21, 2023).

This was a post-judgment case in which the former husband sought modification of time-sharing and child support. He sought equal time-sharing and an imputation of income to the former wife. After a hearing, the court modified the time-sharing and imputed income to the former wife. The former wife filed exceptions to the general magistrate’s recommendations which were granted as to imputation of income. At the rehearing before the general magistrate on this issue, the former wife presented evidence that it was difficult, if not impossible to change her work schedule as a flight attendant due to complications from rules involving seniority and where she was based. The former wife also testified that her mother with whom she lived was experiencing health issues and therefore was unable to help care for the children as she did previously. The former husband did not rebut much of this testimony and instead insisted the burden was on the former wife to show income should not be imputed to her. The general magistrate entered a recommended order which imputed full time income to the former wife. The former wife filed exceptions which were denied, and she appealed.

The appellate court reversed, holding “Viewed in context, the magistrate's findings and analysis make clear that the burden was placed upon the Former Wife below to avoid imputation of income. Indeed, that is precisely what the Former Husband's counsel had proposed. Because Florida law places the burden of proof squarely upon the party requesting imputation, we reverse this determination made under an incorrect legal standard.” The court further held “It is clear that the magistrate did not give much weight to the Former Wife's testimony about the restrictions on her schedule or the inability to resolve them by transferring to a Florida base. But even so, the Former Husband offered no opposing evidence to rebut the Former Wife's considerable substantive testimony in this regard. To the extent the trial court accepted the finding that the Former Wife was voluntarily underemployed because she failed to prove that she could not relocate or pick up additional shifts, the court erred.”

Last as it related to the former wife’s mother’s ability to provide childcare, the appellate court held “But the mere fact that the maternal grandmother has helped in limited, unquantified ways in the past is not competent, substantial evidence to support the conclusion that she would regularly be available to care for the children if the Former Wife began working full time. At most, the evidence supported that she had helped from time to time, without any quantification or material context. For whatever reason, at the hearings below the Former Husband did not materially explore the issue of the grandmother's availability. But because the Former Husband bore the burden to establish underemployment, the trial court reversibly erred to the extent it accepted the magistrate's imputation of income on the basis that the Former Wife failed to prove the negative of her mother's unavailability.”

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