VIRGINIA HART STELK, APPELLANT/CROSS APPELLEE,
v.
RANDY EDWARD STELK, APPELLEE/CROSS APPELLANT
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The court held that the trial court erred in awarding sole parental responsibility without finding shared responsibility detrimental and in failing to impute income for child support when voluntary underemployment was found.
[1] A trial court must make a specific finding that shared parental responsibility would be detrimental to the child before awarding sole parental responsibility.
[2] A trial court errs by failing to impute income to a party found to have voluntarily committed themselves to no income, when calculating child support.
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PER CURIAM.
Appellant raises a number of issues on appeal, two of which require reversal. We determine that the trial court erred (as conceded by appellee) in awarding sole parental responsibility to the former husband without a specific finding that shared parental responsibility would be detrimental to the child. See § 61.13(2), Fla. Stat. (1995); Griffin v. Griffin, 665 So. 2d 352 (Fla. 1st DCA 1995). We reverse and remand as to this issue for the trial court to revisit the question of shared parental responsibility and to make appropriate findings.
We also determine that the trial court’s order is internally inconsistent as to child support. The court found that “the former husband has the ability to earn income and has voluntarily committed himself to no income”; however, the court failed to impute any income to the husband in calculating the child support obligation.
Section 61.30(2)(b), Florida Statutes (1995), requires imputation of income after making a finding of voluntary underemployment. See Thilem v. Thilem, 662 So. 2d 1314, 1316 (Fla. 3d DCA 1995). The statute requires that the level of income to be imputed shall be based on employment potential and probable earnings. See Neal v. Meek, 591 So. 2d 1044, 1046 (Fla. 1st DCA 1991).
Appellee argues that there was little or no evidence in the record to support the “probable earnings level” of the former husband.
We find, however, that the trial court could have imputed some level of income to the former husband based on the evidence presented of recent employment history and qualifications. See § 61.30(2)(b), Fla. Stat. (1995). It is impossible for us to determine the trial court’s reasons for failing to do this. We, therefore, reverse and remand as to this issue with instructions that the trial court revisit the issue and make appropriate findings.
We affirm as to all other issues.1
JOANOS, WOLF and VAN NORTWICK, JJ., concur. . The record on appeal indicates that a notice of cross appeal was filed; however, because no issue on cross appeal was pursued, we hereby dismiss the cross appeal.
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Smith v. Smith, 737 So. 2d 641 (Fla. 1st DCA 1999)…ngs level in the pertinent community, are properly taken into account, as they were in the case at bar, a trial court has discretion to impute income in the amount the person was earning before voluntarily reducing his or her income. Stelk v. Stelk, 699 So. 2d 811 (Fla. 1st DCA 1997); Kovar, 648 So. 2d at 178-79; Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994); Work, 632 So. 2d at 1119. Cf. Robinson v. Robinson, 713 So. 2d 437, 438-39 (Fla. 2d DCA 1998) (where trial court imputed income based solely on…
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Mohamed S. Rashid v. Shanta Rashid, 35 So. 3d 992 (Fla. 5th DCA 2010)…l to the child. § 61.13(2)(b)2., Fla. Stat. (2006).3 The courts have consistently held that without such a finding, an award of sole parental responsibility is inappropriate. Schram v. Schram, 932 So. 2d 245, 250 (Fla. 4th DCA 2005); Stelk v. Stelk, 699 So. 2d 811, 812 (Fla. 1st DCA 1997); Griffin v. Griffin, 665 So. 2d 352, 352-53, (Fla. 1st DCA 1995); Longo v. Longo, 576 So. 2d 402, 402 (Fla. 2d DCA 1991) (citing Hicks v. Hicks, 511 So. 2d 628 (Fla. 2d DCA 1987)); see also Maslow v. Edwards, 886 So. 2d 1027…
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Evans v. Lara Woodard, 898 So. 2d 230 (Fla. 2d DCA 2005)…ed. See Feger v. Feger, 850 So. 2d 611, 614 (Fla. 2d DCA 2003) (“Under section 61.13(2)(b)(2), a court is required to order shared parental responsibility unless it finds that such an arrangement would be detrimental to the child.”); Stelk v. Stelk, 699 So. 2d 811, 812 (Fla. 1st DCA 1997) (holding that trial court erred “in awarding sole parental responsibility to [one parent] without a specific finding that shared parental responsibility would be detrimental to .the child”). We, therefore, reverse on this…
Authorities Cited
- Neal v. Meek, 591 So. 2d 1044 (Fla. 1st DCA 1991)
- Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995)
- Griffin v. Griffin, 665 So. 2d 352 (Fla. 1st DCA 1995)