JAMES A. BIMONTE, APPELLANT/CROSS-APPELLEE,
v.
JEANNETTE MARTIN-BIMONTE, APPELLEE/CROSS-APPELLANT
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This appeal concerns a final order of dissolution where the former husband challenges the trial court's imputation of unreported income and the court's evidentiary rulings. The Fourth District Court of Appeal affirms the overall dissolution but remands for the trial court to make specific findings regarding imputed income.
The court affirmed the overall dissolution and the refusal to allow the former husband to recall his expert witness but remanded the case because the trial court failed to make the requisite specific findings regarding the imputation of income. The trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.
[1] A trial court must set forth specific factual findings regarding the probable and potential earnings level, source of imputed and actual income, and adjustments to income…
[2] When imputing net income, a trial court must first impute a gross income and then apply allowable deductions.
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Join FLexlaw to unlock all legal intelligence“When imputing additional income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.”
Establishes the legal standard for imputation of income that the trial court failed to meet
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Join FLexlaw to unlock all legal intelligenceThe former husband is a part owner of Southeast Pay Telephone Company and Video Games International, Inc. (VGI), which operate on a cash basis. Multip…
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SHAHOOD, Judge.
TMs is an appeal from a final order of dissolution. We affirm on all issues raised in the appeal and cross appeal, including both the equitable distribution scheme and the trial court’s refusal to allow the former husband to recall his expert witness to “rebut” the testimony of the former wife’s expert on the same issues that the former husband had already addressed in his case in chief. We do, however, remand to the trial court to make appropriate findings regarding income imputed to the former husband.
The former husband is part owner of Southeast Pay Telephone Company and Video Games International, Inc. (“VGI”), a video and vending machine company. Three witnesses, including the former husband testified as to the former husband’s income. Both the former husband and VGI’s accountant testified that the former husband earns approximately $80,000 annually between the two companies. The former husband’s partner in VGI testified that the former husband’s annual salary from the two companies is approximately $88,400.
Both of the companies operate almost entirely on a cash basis since income is generated by either pay telephones or coin operated vending machines. A highly contested issue at trial was the former wife’s allegations of unreported income. The record shows that there is a discrepancy between the amount of income reported on VGI’s federal tax return and that reported on its state tax return. An auditor for the state of Florida testified that VGI underreported its total receipts for state sales tax purposes resulting in approximately $150,000 in unpaid taxes. The wife’s expert testified that in 1992 alone, VGI had unreported sales receipts of $153,248.
With regard to the former husband’s income, the court found as follows:
Pursuant to the child support guidelines ... the Court finds that the direct ($5,200 per month) and imputed ($5,000 plus per month) net income of the husband totals $10,200 per month.
* * *
Here, the husband has imputed income of unreported cash plus economic benefits which would generate a net income substantially in excess of $100,000 per year. Here, the husband’s undisclosed income alone was $153,248 in 1992, $95,470 in 1991, and $89,653 in 1990.
The former husband takes issue with the trial court’s findings claiming that the judgment must be reversed because it does not contain specific findings to justify the imputation of income. We agree.
When imputing additional income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. Janes v. Jones, 636 So. 2d 867, 868 (Fla. 4th DCA 1994). This court recently reversed a final judgment with similar flaws, see Alon v. Alon, 665 So. 2d 1110 (Fla. 4th DCA 1996), finding as follows:
There are several problems with the trial court’s analysis. First, it fails to specifically set forth the source of appellant’s imputed income. The trial court obviously felt appellant had resources, but did not delineate them as the basis for imputed income. The reference to appellant’s income from his brief employment at Eden Foods was used by the trial court to support its figure, but the trial court compared gross income from that job to its imputed net income figure, which is like comparing apples and oranges. Second, the trial court imputed net income for appellant without first imputing a gross income. Moss v. Moss, 636 So. 2d 164 (Fla. 4th DCA 1994). The net income should have been imputed “only after taking the allowable deductions from an imputed gross income figure as provided in section 61.30(3), Florida Statutes (1991).” Id. at 165.
Id. at 1111.
It is apparent that the trial court in this case found that VGI had unreported income; therefore, the former husband necessarily had unreported personal income. The trial court’s findings of fact come to this court clothed with the presumption of cor- reetness and shall not be disturbed unless there was no competent evidence to sustain them. Nelson v. Spiegel, 529 So. 2d 311 (Fla. 4th DCA 1988). In this case, however, the final judgment does not include the requisite findings or any other findings to guide this court in assessing the propriety of the imputation of income to the husband. For the reasons set forth in Jones and Alón, we are compelled to reverse and remand with directions that the trial court make the requisite findings.
RAMIREZ, JUAN, JR., Associate Judge, concurs.
STONE, J., concurs specially with opinion.
STONE, Judge,
concurring specially.
It appears to me that the amount of imputed income may be in excess of any net amount supportable by the record. Therefore, absent findings demonstrating imputed additional income of $5,000 per month, a new trial may be necessary. In all other respects, I concur fully with the majority opinion.
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Cited By (12 total)
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Bart L. Segall v. Segall, 708 So. 2d 983 (Fla. 4th DCA 1998)…tributable to the Husband and the Wife, the amount and source of any imputed income, the probable and potential earnings level, and the adjustments to income, the trial court’s final judgment was deficient. See id.; accord Bimonte v. Martin-Bimonte, 679 So. 2d 18, 19 (Fla. 4th DCA 1996); Viscito v. Menditto, 644 So. 2d 135, 136 (Fla. 4th DCA 1994); Levine v. Best, 595 So. 2d 278, 279 (Fla. 3d DCA 1992). Without the requisite factual determinations, this court is unable to ascertain whether the trial court’s…
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Schram v. Schram, 932 So. 2d 245 (Fla. 4th DCA 2005)…143 (Fla. 5th DCA 2002). When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. See Bimonte v. Martin-Bimonte, 679 So. 2d 18, 19 (Fla. 4th DCA 1996). A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts. See Gruber, 857 So. 2d at 331. Although the trial court is free to determine the…
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Burkhardt v. Bass, 711 So. 2d 158 (Fla. 4th DCA 1998)…etermine how the trial court arrived at the amount of imputed income. The lack of findings to guide this court in assessing the propriety of the imputation of income to the husband likewise formed the basis for reversal in Bimonte v. Martin-Bimonte, 679 So. 2d 18, 19 (Fla. 4th DCA 1996). A sampling of recent appellate cases exemplifies the difference between when meaningful appellate review is possible in imputed income cases and when it is not. In Vaccaro, 677 So. 2d at 918, the fifth district explained th…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. Jones, 636 So. 2d 867 (Fla. 4th DCA 1994)
- Alon v. Dina Alon, 665 So. 2d 1110 (Fla. 4th DCA 1996)
- Mann Lattimore v. BEN Stern Constr. Co., Inc., 636 So. 2d 164 (Fla. 4th DCA 1994)
- Moss v. Moss, 636 So. 2d 164 (Fla. 4th DCA 1994)
- Nelson v. Spiegel, 529 So. 2d 311 (Fla. 4th DCA 1988)