STEVEN E. STEIN, APPELLANT,
v.
KAREN L. STEIN, APPELLEE
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A former husband appealed a dissolution judgment challenging both the imputation of income for child support purposes and the assignment of capital gains taxes from the sale of the marital residence. The court affirmed the tax ruling but reversed the income imputation, finding the trial court lacked sufficient evidence to support imputing $40,000 in annual income when the former husband had never earned that amount and was underemployed due to mental health issues.
The court reversed the imputation of $40,000 income because income cannot be imputed at a level the former spouse has never earned without special circumstances, and no such circumstances were present here.
[1] Income may not be imputed to a parent for child support purposes at a level that the parent has never earned, absent special circumstances.
[2] When imputing income to an underemployed parent, the determination of probable earnings must be based on the parent's recent work history, occupational qualifications, an…
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Join FLexlaw to unlock all legal intelligence“income may not be imputed at a level which the former spouse has never earned, absent special circumstances”
Establishes the legal standard for income imputation in child support cases
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Join FLexlaw to unlock all legal intelligenceThe former husband attempted suicide in mid-1993 and subsequently underwent psychological treatment. Following the suicide attempt, he worked part-tim…
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STEVENSON, Judge.
We have for review a final judgment of dissolution. The former husband takes issue with both the imputation of income to him for purposes of calculating his child support obligation and the trial court’s determination that the former husband is to be solely responsible for both federal and state capital gains taxes plus interest and penalties, which resulted from the sale of the former marital residence. We find no error in the trial court’s assessment of the capital gains tax liabilities and write only to address the imputation of income.
Florida Statutes section 61.30(2)(b) permits the trial court to impute income to an underemployed parent
when such employment or underemployment is found to be voluntary on that parent’s part, absent 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 on his or her recent work history, occupational qualifications, and prevailing earnings level in the community....
However, income may not be imputed at a level which the former spouse has never earned, absent special circumstances. See Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994).
The evidence presented below indicates that the former husband’s earnings in recent years have been minimal to non-existent. In mid-1993, the former husband attempted suicide, and since then, he has been undergoing psychological treatment. In the years following the suicide attempt, the former husband has either worked part time, not at all, or only on a volunteer basis. Additionally, the financial affidavits filed by the former husband indicate that he is presently earning no income. Despite this, the trial court imputed an annual income of $40,000 to the former husband. No source for the income was cited, and the amount was justified only by a statement to the effect that “through conscientious utilization of his accounting skills, training and experience” the former husband would be able to earn such amount.
The evidence before the trial court was that the greatest salary ever earned by the former husband was $85,000 annually, an amount that he earned in 1990 when the couple was still residing in New York. Moreover, the imputation of such amount is contrary not only to the testimony of the former husband’s expert to the effect that the former husband is capable of earning only an estimated $400.00 per week or $20,800 per year, but also to the testimony of the former wife’s expert that, although he does not believe the husband to suffer from chronic depression, reintroduction to the work place will have to be on a gradual basis.
Because this record fails to demonstrate any special circumstance which supports an imputation of $40,000 annual income to the former husband, an amount which he has never earned and which the record indicates he cannot presently earn, we reverse only as to this finding and its effect on the former husband’s child support obligation.
REVERSED IN PART and REMANDED.
FARMER, J., and JOHN A. FRUSCIANTE, Associate Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008)…o. 2d at 283; Ritter, 690 So. 2d at 1374. Moreover, “ ‘income may not be imputed at a level which the former spouse has never earned, absent special circumstances.’ ” Hinton v. Smith, 725 So. 2d 1154, 1157 (Fla. 2d DCA 1998) (quoting Stein v. Stein, 701 So. 2d 381, 381 (Fla. 4th DCA 1997)). In this case, the record is completely devoid of any evidence that would permit the trial court to impute income to the Husband in the amount of $150,000 per year. The only evidence of the Husband’s past earnings shows th…
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Lucinda Jean Hinton v. Smith, 725 So. 2d 1154 (Fla. 2d DCA 1998)…er the individual’s underemployment resulted through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” We agree with the Fourth District’s holding in Stein v. Stein, 701 So. 2d 381, 381 (Fla. 4th DCA 1997), that “income may not be imputed at a level which the former spouse has never earned, absent special circumstances.” Therefore, we hold that the trial court erred in imputing an income of $30,000 per year to the former wife…
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Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008)…stated, “As a general rule, where we have upheld the trial courts’ imputation of income, the spouse had a track record of having earned the imputed amount.” 725 So. 2d at 1157. This court agreed “with the Fourth District’s holding in Stein v. Stein, 701 So. 2d 381, 381 (Fla. 4th DCA 1997), that ‘income may not be imputed at a level which the former spouse has never earned, absent special circumstances.’ ” 725 So. 2d at 1157. Here, the trial court was aware that the Wife’s recent work history showed minimal ea…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994)