DAVID J. MCCALL, APPELLANT,
v.
SALLY H. MCCALL, APPELLEE
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In this family law appeal, the Florida District Court of Appeal addressed whether a trial court properly imputed income to a former husband based on his live-in companion's contributions to household expenses when determining alimony obligations. The court held that while a roommate's actual contributions to living expenses may be considered as evidence of the payor's true expenses, imputing the roommate's income as the payor's own income is improper.
A trial court may not treat a roommate's income as though it were the former spouse's income when determining ability to pay support. However, a trial court may consider a roommate's actual contribution to living expenses as evidence of the former spouse's true expenses. The imputation of income must be based on evidence of what the roommate actually contributes, not on speculation or assumptions about what should be contributed.
[1] A trial court may not impute a live-in companion's income to a former spouse when determining the former spouse's ability to pay support.
[2] A trial court may consider a roommate's contributions to living expenses as evidence of a former spouse's actual expenses.
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Join FLexlaw to unlock all legal intelligence“it is improper for a trial court to treat the former spouse's roommate's income as though it were the former spouse's”
States the core legal principle that roommate income cannot be attributed to the payor spouse
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Join FLexlaw to unlock all legal intelligenceThe former wife filed a motion for contempt for failure to pay alimony, and the former husband filed a petition to reduce alimony. At the evidentiary …
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THREADGILL, Judge.
The former husband appeals from an order modifying a final judgment of dissolution of marriage. He raises three issues on appeal, however, we find merit in only one. We agree that the trial court erred in imputing income to the former husband from his live-in companion.
This action was commenced in the court below by the former wife filing a motion for contempt for failure to pay alimony and the former husband filing a petition to terminate alimony. Following an evidentiary hearing, the trial judge entered the order now on appeal, which adjudged the former husband to be in contempt and entered a money judgment against him for the alimony arrearage. Further, the court interpreted the former husband’s petition to terminate alimony as a petition to reduce alimony and accordingly reduced the alimony payments from $250.00 per week to $600.00 per month.
In announcing his decision following the hearing, the trial judge imputed to the former husband $528.50 per month additional income. This amount was based upon contributions which the court found the live-in companion should be making toward their living expenses. The trial court added this imputed income to the $1,007.00 per month the former husband was receiving in social security disability benefits, thus attributing to the former husband a monthly income of $1,535.50.
Initially, we note that in determining a former spouse’s ability to pay domestic support, it is improper for a trial court to treat the former spouse’s roommate’s income as though it were the former spouse’s. See Sullivan v. Sullivan, 593 So. 2d 1153, 1154 (Fla. 4th DCA 1992). A trial court may, however, consider a roommate’s contribution to living expenses as evidence of a former spouse’s true expenses. 593 So. 2d at 1155 (Stone, J., concurring specially). In the instant case, there was no evidence presented to establish what amount, if any, the live-in companion contributes to the former husband’s living expenses. Instead, the trial court determined the amount of income to be imputed by dividing in half the living expenses claimed by the former husband. Because there is insufficient evidence in the record to support the trial court’s finding, we reverse the award of alimony which was based upon imputed income and remand for the trial court to reconsider the husband’s ability to pay. On remand, the trial court should consider any contributions to living expenses made by the live-in companion as evidence of the former husband’s true expenses and not as income. See Harman v. Harman, 523 So. 2d 187 (Fla. 2d DCA 1988); Montgomery v. Montgomery, 426 So. 2d 1255 (Fla. 1st DCA 1983). In all other respects the order appealed from is affirmed.
Affirmed in part; reversed in part and remanded.
CAMPBELL, A.C.J., and SCHOONOVER, J., concur.
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Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993)…ould impute income from the live-in companion to the wife. There can be no modification of the support provision based on the companion’s contributions because there was no evidence to show that they offset the wife’s expenses. See McCall v. McCall, 616 So. 2d 607, 608 (Fla. 2d DCA 1993). The wife’s uncontradicted testimony was that the companion’s monetary contributions barely cover his own groceries and share of the utilities. There was no evidence that the wife’s expenses were reduced by the companion’s ma…
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Arouza v. Goldin C. Arouza, 670 So. 2d 69 (Fla. 3d DCA 1995)…me when determining the former wife’s ability to pay. It is well established that a court may not impute an ability to pay based upon the income of a former spouse’s cohabitant. See Long v. Long, 622 So. 2d 622 (Fla. 2d DCA 1993); McCall v. McCall, 616 So. 2d 607 (Fla. 2d DCA 1993); Sullivan v. Sullivan, 593 So. 2d 1153 (Fla. 4th DCA 1992). However, attorney’s fees may be assessed in domestic cases against a party who initiates a baseless cause of action which results in meritless litigation and the unnecess…
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Singleton v. Singleton, 696 So. 2d 1338 (Fla. 4th DCA 1997)…oss income “shall include ... Reimbursed expenses or in Mnd payments ... to the extent that they reduce living expenses.” See Cooper v. Kahn, 696 So. 2d 1186 (Fla. 3d DCA 1997); Long v. Long, 622 So. 2d 622, 624 (Fla. 2d DCA 1993); McCall v. McCall, 616 So. 2d 607, 608 (Fla. 2d DCA 1993); Thalgott v. Thalgott, 571 So. 2d 1368, 1370 n. 2 (Fla. 1st DCA 1990). Nothing in this record demonstrates that the girlfriend made any contributions to reduce the husband’s expenses such that his income should be increased f…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harman v. Harman, 523 So. 2d 187 (Fla. 2d DCA 1988)
- Sullivan v. Sullivan, 593 So. 2d 1153 (Fla. 4th DCA 1992)
- Montgomery v. Daty L. Montgomery, 426 So. 2d 1255 (Fla. 1st DCA 1983)