FRED ALBRIGHT MCDOWELL, APPELLANT,
v.
KIM ELIZABETH MCDOWELL, APPELLEE
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Fred McDowell appeals a trial court order awarding child support and attorney's fees to his former wife. The appellate court reverses, holding that the trial court impermissibly imputed income to McDowell without finding voluntary unemployment and improperly awarded child support retroactively to a date before the modification motion was filed.
The trial court erred in imputing income without first finding that the former husband was voluntarily unemployed or underemployed. Additionally, awarding child support retroactively to a date before the modification motion was filed constitutes clear error, regardless of the court's jurisdiction on that earlier date.
[1] A trial court errs in imputing income to a party for child support purposes without first finding that the party is voluntarily unemployed or underemployed.
[2] A trial court cannot award child support retroactive to a date prior to the filing of a pleading seeking such support.
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Join FLexlaw to unlock all legal intelligence“The lower court did not find that this unemployment was voluntary. This was error. § 61.30(2)(b), Fla. Stat. (1999); see Brock v. Brock, 695 So.2d 744 (Fla. 1st DCA 1997).”
Establishes that imputation of income requires a finding of voluntary unemployment as a prerequisite.
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Join FLexlaw to unlock all legal intelligenceFred McDowell was unemployed at the time of the hearing on his former wife's motion for modification seeking child support. The trial court imputed in…
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Fred Albright McDowell, the former husband, appeals a final order on an emergency motion for relief and enforcement filed by appellee, Kim Elizabeth McDowell, the former wife. The former husband argues that the trial court erred in imputing income to the former husband for the purpose of setting his child support obligation without first finding that he was voluntarily unemployed or underemployed and in awarding child support payment retroactive to a date prior to the date of the filing of a pleading seeking such support. We agree and reverse.
It is undisputed that the former husband was not employed at the time of the hearing on the former wife’s motion for modification by which she sought child support. The lower court did not find that this unemployment was voluntary. This was error. § 61.30(2)(b), Fla. Stat. (1999); see Brock v. Brock, 695 So. 2d 744 (Fla. 1st DCA 1997). Moreover, there is no competent and substantial evidence in the record on which a finding that appellant was voluntarily unemployed could be based.
Further, awarding child support retroactive to a date before the date of a motion seeking such an award is clear error, see Wertheim v. Wertheim, 667 So. 2d 331 (Fla. 1st DCA 1995), and it matters not that the trial court may have had jurisdiction to award child support on the date to which the award was made retroactive. See Fayson v. Fayson, 482 So. 2d 523 (Fla. 5th DCA 1986)(even assuming the trial court had jurisdiction, the trial court can only modify child support payments prospectively from the time a petition for modification is filed).
We also reverse the award of attorney’s fees and costs without prejudice to the former wife’s entitlement to fees at a later date pursuant to the attorney’s fees provision of the parties’ marital settlement agreement, should a subsequent action enforcing that agreement successfully be prosecuted by the former wife, or pursuant to section 61.16, Florida Statutes (1999), .should an order requiring child support payments subsequently be entered against the former husband. By this appeal, we do not address those portions of the final order which do not affect attorney’s fees and child support. With respect to the award of attorney’s fees and costs and child support, the final order is REVERSED.
WOLF AND WEBSTER, JJ„ CONCUR.
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McDANIEL v. McDANIEL, 835 So. 2d 1265 (Fla. 1st DCA 2003)…e period of the award. Town v. Town, 801 So. 2d 324 (Fla. 1st DCA 2001) (holding that a retroactive increase in child support could not accrue earlier than the date the former wife first requested an increase in child support); McDowell v. McDowell, 770 So. 2d 1289 (Fla. 1st DCÁ 2000) (holding that it is clear error for the trial court to award child support retroactive to a date before the date of the motion seeking such an award); Wertheim v. Wertheim, 667 So. 2d 331 (Fla. 1st DCA 1995) (reversing and remand…
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Shlomit Galperin v. Boris Galperin, 862 So. 2d 10 (Fla. 2d DCA 2003)…Wertheim, 667 So. 2d 331, 332 (Fla. 1st DCA 1995); see also Snyder v. Linville, 659 So. 2d 1373 (Fla. 2d DCA 1995). This is true even if the trial court had jurisdiction over the matter prior to the filing of the petition. See McDowell v. McDowell, 770 So. 2d 1289, 1289 (Fla. 1st DCA 2000). The rationale behind this rule is that it is the filing of the petition that places the obligated party on notice of a potential increase in his or her support obligation. See Garrett v. Garrett, 707 So. 2d 382, 383 (Fla.…
Authorities Cited
- Brock v. Voncile Brock, 695 So. 2d 744 (Fla. 1st DCA 1997)
- Ned R. Fayson v. Fayson, 482 So. 2d 523 (Fla. 5th DCA 1986)
- Wertheim v. Wertheim, 667 So. 2d 331 (Fla. 1st DCA 1995)