Posted by Nydia Streets of Streets Law in Florida Child Support

When parents separate, reshuffling of finances may occur since the parties may live in two separate households. If a parent is using assets to pay living expenses, can this be considered income for purposes of calculating a child support obligation? This was an issue in the case Delosreyes v. Delosreyes, 4D2023-1324 (Fla. 4th DCA July 24, 2024).

The mother in this case appealed the trial court’s determination concerning child support. Specifically, she took issue with imputation of income to her and the father, as well as retroactive support. The appellate court discussed these issues in detail.

With regard to the former wife’s issue with the former husband’s income, the court held “Here, as an initial matter, the former husband’s income was clearly identifiable, consisting only of his current $3,397.00 taxable pension payment, and his approximately $4,430.00 non-taxable disability payment. The former wife’s pleadings did not request the circuit court to impute income to the former husband, or to find the former husband was voluntarily unemployed. Accordingly, the former wife’s argument that the circuit court ‘should be required to make findings as to whether [the former husband’s] unemployment is voluntary or not’ lacks merit.”

The court found however, that imputation of income to the mother was improper where there was no finding that she was voluntarily unemployed or underemployed. The court went on “The circuit court also erred to the extent its final judgment imputed unrealized investment income to the former wife, or considered as recurring income her ‘one-time’ capital gains/stock sales. At trial, when the former wife was asked about her most recent financial affidavit, which listed her 2021 gross income as $238,421.00, the former wife testified she had liquidated those funds from her investment account ‘[t]o live … off of and pay … bills.’ The former wife later testified, while ‘the main purpose of each … sale[] [of her] stock was to purchase a home,’ she also “used that [money from the sale of her stocks] to live off of because [she] had no [recurring] income except for the rental money.’ In other words, after the parties had separated, the former wife had been liquidating stocks to help pay for her living expenses. Presumably, until the former wife’s circumstances change, she will continue to liquidate her remaining $1.3 million in stocks to help pay her living expenses, as the final judgment denied her request for alimony and, as she submits, her only other recurring income sources are her rental income and percentage of the former husband’s pension payments.”

The court noted the accountant’s testimony at trial regarding the amount she could receive as investment income, but held “However, unlike the alimony statute, which requires a court, when calculating alimony, to consider ‘all sources of income available to either party, including income available to either party through investments of any asset held by that party,’ § 61.08(2)(i), Fla. Stat. (2022), the child support statute contains no such language. Thus, as the former wife’s reply brief submits: ‘Elliott v. Elliott, 867 So. 2d 1198 (Fla. 5th DCA, 2004), [on] which [the former husband relies, is distinguishable, as it discusses] the determination of income under the alimony statute, not the child support guidelines.’” Holding the mother’s investment income was nominal anyway, and that her withdrawal from assets was not recurring, the court held “Based on the foregoing, we reverse and remand for the circuit court to determine the former wife’s income that is supported by the record and then to recalculate the child support award accordingly.”

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