Posted by Nydia Streets of Streets Law in Florida Child Support
When imputing income to a parent who is underemployed or unemployed, what factors must a Florida child support court consider? This was an issue in the case Campbell v. Jara, 2D2023-1795 (Fla. 2d DCA August 23, 2024).
The father in this child support case was accused of being underemployed because he worked 25 to 30 hours per week rather than full-time. The father testified that he was “building” his position with his company, and that a 40-hour schedule was never offered to him. There was evidence that he took a second part-time job delivering food, but the income was minimal so he stopped doing it. He testified that he could not work 40 hours per week because of matters related to the parties’ child and his own medical appointments. The trial court imputed income to him and he appealed.
The appellate court noted “The application of section 61.30(2)(b) requires a two-step analysis: ‘(1) the determination of whether the parent's [unemployment or] underemployment was voluntary, and (2) if so, the calculation of imputed income.’ [. . .] ‘Florida law is well settled that the burden of proof rests with the party asserting underemployment and seeking imputation.’ [internal citations omitted.” Using this standard, the appellate court held “Even if the trial court declined to believe the Father's explanation as to why he does not pursue additional work, it did not make any findings or explanations supporting that conclusion. The Father was not questioned further about what the "accommodations" for the minor child entailed, the frequency of his physician appointments and whether they, for example, required significant travel. The Father was not asked about any other extenuating circumstances that may restrain his time to pursue additional employment. ‘[M]ere allegations of employability do not constitute competent, substantial evidence for imputing income.’ Torres v. Torres, 98 So. 3d 1171, 1172 (Fla. 2d DCA 2011) [. . .] Thus, the trial court's conclusion that the Father "could be" employed at forty hours a week is not supported by competent, substantial evidence.”
The court also noted “The second prong of the analysis—the calculation of the income to be imputed—was also error. ‘Before imputing income, the trial court must consider evidence concerning the party's recent work history, occupational qualifications, and the prevailing earnings in the industry in which the party works.’ [. . .] ‘Moreover, 'income may not be imputed at a level which the former spouse has never earned, absent special circumstances.’ [. . .] Here, the trial court imputed an additional $15,000 of income—for a total of just over $76,000—to the Father for 2023, when the record evidence reflects that his highest earned income was just over $58,000. There was no evidence presented nor findings made by the trial court regarding ‘special circumstances’ that would justify the additional income imputed.”
Contact a Miami family law attorney to understand your rights and remedies in your case.