Opinion
No. 2D20-3429
01-19-2022
Jerra N. GILLESPIE, f/n/a Jerra N. Holdsworth, Appellant, v. Scott HOLDSWORTH, Appellee.
Michael M. Shemkus of Long, Murphy & Zung, P.A., Naples, for Appellant. No appearance for Appellee.
Michael M. Shemkus of Long, Murphy & Zung, P.A., Naples, for Appellant.
No appearance for Appellee.
LaROSE, Judge.
After Jerra N. Gillespie (Former Wife) moved from Florida to Missouri, the trial court entered a supplemental final judgment of dissolution modifying her timesharing and child support obligations. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(c)(iii)(a), (b). The trial court imputed to Former Wife annual income of $78,000. Competent substantial evidence does not support this amount. Therefore, we reverse as to that issue.
We affirm the supplemental final judgment in all other respects.
Background
In 2010, the trial court dissolved Former Wife's marriage to Scott Holdsworth (Former Husband). They have two children. The final judgment required Former Husband to pay $1,700 per month in child support. The trial court awarded Former Wife majority timesharing; Former Husband was in the merchant marine and was at sea for months at a time.
Their elder child attained majority during the pendency of this appeal.
Former Wife repeatedly, albeit unsuccessfully, moved the trial court to allow her to move to Missouri with the children. Most recently, in September 2018, Former Wife filed a "Verified Supplemental Petition for Relocation," requesting permission to relocate with the children to Missouri. The trial court denied the petition in a June 2019 order. By the time of that order, Former Wife had already quit her teaching job in Marco Island, pulled up stakes, and moved to Missouri. She secured a full-time substitute teaching position in Fairgrove, Missouri, earning $57,600 per year. While teaching in Marco Island, Former Wife earned as much as $78,000 annually.
Several months after relocating, Former Wife petitioned to modify the parenting plan. She requested a long-distance parenting plan. In his counterpetition, Former Husband, who remained in Florida, sought "the bulk of parenting time," termination of his ongoing child support obligation, and establishment of a child support obligation for Former Wife. Through mediation, the parties agreed to a parenting schedule. They left the issue of child support to the trial court.
The trial court held an evidentiary hearing in June 2020. Former Husband asked the trial court to find that Former Wife was voluntarily underemployed and impute to her an annual income of $78,000. Former Wife acknowledged that she voluntarily resigned her Marco Island teaching position. At the time of the hearing, Former Wife had contracted for a teaching position in Springfield, Missouri. The position paid roughly $57,600 annually. Former Wife detailed her unsuccessful efforts to secure a more lucrative teaching position.
The hearing was consolidated; the trial court received identical argument and evidence concerning Former Wife's second marriage. On appeal, we reversed the trial court's imputation of income to Former Wife. See Gillespie v. Minning , 330 So.3d 981 (Fla. 2d DCA Nov. 3, 2021).
At the conclusion of the hearing, the trial court announced that it was imputing $78,000 of income to Former Wife. In doing so, the trial court observed
that the relevant factual context is not Missouri, because to find that way would allow former spouses and parents to just move anywhere they wanted to regardless of what their abilities to earn in those places were. That is exactly what has occurred here. From the beginning of the case ... [Former Wife] has evidenced a pattern of wanting to move and not really that much regard for what the consequences to the children are. Child support is for the children.
Analysis
I. The Lack of Available-Jobs Evidence
Former Wife asserts that the trial court improperly imputed income "without receiving evidence of jobs currently available" in her new community. We agree.
We begin with the relevant statutory authority:
Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.
§ 61.30(2)(b), Fla. Stat. (2019). "Imputing income is 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.’ " Cash v. Cash , 122 So. 3d 430, 434 (Fla. 2d DCA 2013) (quoting Bator v. Osborne , 983 So. 2d 1198, 1200 (Fla. 2d DCA 2008) ).
Former Wife voluntarily resigned her Marco Island teaching position. See generally Crespo v. Watts , 301 So. 3d 1110, 1111-12 (Fla. 1st DCA 2020) ("In order to determine whether a parent's unemployment is voluntary, the court applies a two-step process: (1) whether the termination of employment was voluntary, and (2) whether the unemployment resulted from the parent's pursuit of her own interests or through the less-than diligent and bona fide efforts to find employment at or higher than her former employment." (citing Wood v. Wood , 162 So. 3d 133, 136 (Fla. 1st DCA 2014) )). But that fact, alone, does not mandate imputation of income. See Wood , 162 So. 3d at 136 ("The trial court abused its discretion by imputing income to the former wife solely because she voluntarily left her new employment after only one month.").
Rather, we must analyze Former Wife's job-seeking efforts as well as her "employment potential and probable earnings level ... based upon ... her recent work history, occupational qualifications, and prevailing earnings level in the community." § 61.30(2)(b) ; See Wood , 162 So. 3d at 136 ("[W]hile a parent's motive in voluntarily quitting a job is relevant, it is but one factor in the determination of whether income should be imputed. Even if the parent leaves a job unwisely, ill-advisedly, or motivated by frustration or spite, the voluntary nature of her continued unemployment must be shown with proof that she is not making diligent, bona fide efforts to obtain reemployment." (first citing Brown v. Cannady-Brown , 954 So. 2d 1206, 1207-08 (Fla. 4th DCA 2007) ; and then citing Ensley v. Ensley , 578 So. 2d 497, 499 (Fla. 5th DCA 1991) )). Former Husband, as the one seeking imputation of income, carried the burden of proof. See Torres v. Torres , 98 So. 3d 1171, 1172 (Fla. 2d DCA 2011) ("The Wife, as the party asserting that the Husband was voluntarily unemployed and that income should be imputed to him, had the burden of proof." (citing Burkley v. Burkley , 911 So. 2d 262, 268 (Fla. 5th DCA 2005) )).
Our careful review of the record shows that Former Husband dropped the ball. See Roth v. Roth , 973 So. 2d 580, 590 (Fla. 2d DCA 2008) ("The decision to impute income and the determination of the amount of income to be imputed must be based on competent, substantial evidence presented at an evidentiary hearing." (first citing Wendel v. Wendel , 852 So. 2d 277, 283 (Fla. 2d DCA 2003) ; and then citing Ritter v. Ritter , 690 So. 2d 1372, 1374 (Fla. 2d DCA 1997) )). Courts "have required particularized findings regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal." Broga v. Broga , 166 So. 3d 183, 185 (Fla. 1st DCA 2015) (citing Griffin v. Griffin , 993 So. 2d 1066, 1068 (Fla. 1st DCA 2008) ). There are no such findings in our record. See, e.g. , Heard v. Perales , 189 So. 3d 834, 836 (Fla. 4th DCA 2015) (reversing the imputation of income where "the trial court did not make any findings regarding the mother's diligence or lack thereof in seeking employment. Findings as to both steps are necessary in imputing income"). Former Husband limited his evidence to Former Wife's work history in Marco Island. Too little. See Thompson v. Malicki , 169 So. 3d 271, 273 (Fla. 2d DCA 2015) ("Reliance on past work history alone is insufficient to support imputation of income." (citing Broga , 166 So. 3d at 187 )).
Implicit in the burden borne by Former Husband is the requirement that he present evidence that there are, indeed, available jobs. See Jorgensen v. Tagarelli , 312 So. 3d 505, 507 (Fla. 5th DCA 2020) ("As the party seeking to impute income, Former Husband bears the burden to show ‘both employability and that jobs are available.’ " (quoting Dottaviano v. Dottaviano , 170 So. 3d 98, 100 (Fla. 5th DCA 2015) )); Durand v. Durand , 16 So. 3d 982, 985 (Fla. 4th DCA 2009) ("The spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available ." (emphasis added)). A lack of job prospects does not serve the purpose underlying imputation of income. See Durand , 16 So. 3d at 985 ("A court may impute income when one spouse has failed to use his best efforts to obtain income, perhaps by arranging his financial affairs and employment to shortchange the payee." (citing Leonard v. Leonard , 971 So. 2d 263, 265 (Fla. 1st DCA 2008) )); see also Swain v. Swain , 932 So. 2d 1214, 1215 (Fla. 1st DCA 2006) ("For the purpose of determining child support and alimony, the trial court may impute income to the former spouse upon a finding that he or she is voluntarily unemployed or underemployed due to the pursuit of his or her own interests, or a less than diligent effort to find employment paying at a level equal to that formerly enjoyed." (first citing Andrews v. Andrews , 867 So. 2d 476, 478 (Fla. 5th DCA 2004) ; and then citing § 61.30(2)(b), Fla. Stat. (2003) )).
Former Husband presented no evidence that there were "available employment opportunities," in Fairgrove, Missouri, "for which [Former Wife] was qualified," paying an annual salary of $78,000. Andrews , 867 So. 2d at 478 (reversing imputed income because former husband "failed to establish by testimony or evidence a range of salaries being paid for current and available employment opportunities in the [relevant geographical] area for which [former wife] was qualified"); See Holder v. Lopez , 274 So. 3d 518, 521 (Fla. 1st DCA 2019) ("[T]he trial court erred in failing to base imputation on specific evidence of available jobs appropriate to Former Husband's experience and physical limitations, how much they would pay, and other pertinent factors such as competition for such jobs in the relevant marketplace."); Stebbins v. Stebbins , 754 So. 2d 903, 909 (Fla. 1st DCA 2000) ("If community income is to be used in setting imputed income, then it seems only reasonable and logical that the test for an adequate job search should be limited to the area of the person's resident community.").
In Heard , 189 So. 3d at 835-36, for example, the Fourth District reversed an order denying child support, concluding that the trial court erred in imputing income to the mother. There, the evidence failed to indicate that "the mother's subsequent unemployment resulted from less than diligent and bona fide efforts to find employment. The father did not introduce any evidence as to the mother's employability and the availability of jobs ." Id. at 836 (emphasis added). Here, the crux of Former Husband's case rested upon the suggestion that Former Wife quit her Marco Island job, without any comparable employment lined up in Fairgrove, to pursue her self-interests in Missouri. This is legally insufficient.
As the above authorities make clear, the imputation of income under Florida law requires more than simply finding a party's unemployment or underemployment to be voluntary; it requires consideration of Former Wife's bona fide efforts to regain employment, and a finding that available jobs exist.
II. The Absence of Earnings Level Evidence
Former Wife asserts that the trial court incorrectly imputed income "without receiving the requisite evidence of the prevailing earnings level in her community ... Fairgrove, Missouri." Again, we agree.
As noted above, the trial court must consider "the employment potential and probable earnings level of the parent ... based upon ... her recent work history, occupational qualifications, and prevailing earnings level in the community ." § 61.30(2)(b) (emphasis added).
For purposes of section 61.30(2)(b), the relevant "community" is the one to which Former Wife relocated. See Stebbins , 754 So. 2d at 909. We see no evidence of jobs in Fairgrove, Missouri, for which Former Wife qualified, paying $78,000 per year.
Williams v. Gonzalez , 294 So. 3d 941 (Fla. 4th DCA 2020), is instructive. There, the father worked in Doral, Florida, earning $1,600 per month as a warehouse worker. Id. at 943. He moved to Charlotte, North Carolina, and, as of the trial date, worked for his family's business part-time earning $760 a month. Id. The trial court found that the father was underemployed and imputed a monthly income of $1,600, "rel[ying] upon the $1,600 per month that the [f]ather was making while working in Florida in 2018, rather than the $760 he was currently earning each month in North Carolina." Id. at 943.
The Fourth District reversed, concluding that once there has been a finding that a parent is voluntarily underemployed, the trial court must then assess the parent's employment potential and probable earnings "based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community." Id. at 944 (quoting Broga , 166 So. 3d at 186 ). Our sister district emphasized that "community" means "the community in which the [f]ather lives and works." Id. ; See Rabbath v. Farid , 4 So. 3d 778, 782 (Fla. 1st DCA 2009) ("Before the trial court could impute income to Appellant, it had to make particularized findings relating to the current job market, Appellant's more recent work history, his occupational qualifications, and the prevailing earnings level in the local community where he and his family live ." (emphasis added)). The Fourth District held that the trial court erred in "imput[ing] income of $1,600 per month ... as the relevant job market was Charlotte ... and no evidence was presented at trial establishing the [f]ather's earning potential in Charlotte." Williams , 294 So. 3d at 944.
The trial court committed the same error, here. It imputed income to Former Wife at the rate she previously earned in Florida, rather than imputing income based upon her earning potential in her new Missouri community.
Conclusion
The trial court's imputation of Former Wife's income is not supported by competent substantial evidence. We must reverse the child support award. On remand, the trial court shall hold an evidentiary hearing and take further evidence in order to make the necessary findings under section 61.30(2)(b). In all other respects, we affirm.
In reconsidering its child support award, the trial court shall include the child support guidelines worksheets, so as to enable "meaningful appellate review," should another appeal arise. J.A.D. v. K.M.A. , 264 So. 3d 1080, 1083 (Fla. 2d DCA 2019) ("Because the guidelines are based on the parents' combined net income and there is an absence of findings as to same in the appellate record, this court cannot conduct a meaningful appellate review of the child support award." (emphasis omitted)).
Affirmed in part, reversed in part, and remanded.
BLACK and STARGEL, JJ., Concur.