RONALD G. WENDEL, APPELLANT,
v.
CINDY H. WENDEL, APPELLEE

Fla. 2d DCA | 2001-10-24
No. 2D00-1906
ALTENBERND, A.C.J., and . SALCINES, J., Concur.
805 So. 2d 913 Florida District Court of Appeal, Second District (2001) Positive Treatment
Cited by 18 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Ronald Wendel challenged a modification judgment transferring primary residential custody of the parties' two minor children to his former wife, Cindy Wendel, and sought reversal of the child support award based on imputed income. The Florida District Court of Appeal affirmed the custody modification but reversed the child support award, finding the imputed income of $79,159 lacked adequate evidentiary support.


Holding

The court affirmed the custody modification, finding the former wife met her burden of demonstrating a substantial change in circumstances and that the change was in the best interest of the children. However, the court reversed the child support award, holding that the imputed income of $79,159 lacked competent, substantial evidence because the expert testimony did not establish prevailing earnings in the local community and was unsupported by the former husband's actual earnings history.


Headnotes

[1] A party seeking a modification of child custody must demonstrate a substantial change in circumstances that negatively impacts the children and justifies a change in cust…

[2] The imputation of income to an unemployed or underemployed parent requires a finding that the unemployment or underemployment is voluntary, absent incapacity or circumsta…

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Key Quotes

“the former wife has met her extraordinary burden. Thus, the trial court was justified in changing custody of the parties' minor children.”

Establishes that the trial court properly satisfied the high burden required to modify custody arrangements.

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Facts & Procedural History

Ronald Wendel, age 53 with a master's degree in tax law, had not been employed full time as an attorney since 1994. At the modification hearing, he ha…

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Opinion of the Court
STRINGER, Judge.

STRINGER, Judge.

The former husband, Ronald G. Wendel, challenges a final judgment of modification which transferred the primary residential care of the parties’ two minor children from the former husband to the former wife, Cindy H. Wendel. We affirm the final judgment in all aspects except for the amount of income imputed to the former husband for the purposes of child support.

The former husband argues that the former wife failed to satisfy her burden of demonstrating a substantial change in circumstances since the final judgment of dissolution of marriage and also failed to demonstrate that the change had a negative impact on the children such that a change in custody was justified and in the best interest of the children. See Gibbs v. Gibbs, 686 So. 2d 639, 641 (Fla. 2d DCA 1997). Based upon the extensive record before us and the trial court’s thorough and careful analysis of the evidence, we find that the former wife has met her extraordinary burden. Thus, the trial court was justified in changing custody of the parties’ minor children.

We find, however, that the trial court erred in imputing $79,159 of gross annual income to the former husband. The standard of review for a trial court’s imputation of income is whether there is competent, substantial evidence to support it. Hinton v. Smith, 725 So. 2d 1154 (Fla. 2d DCA 1999).

Section 61.30(2)(b), Florida Statutes (1999), provides:

(b) Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such [unemployment 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 upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for the parent to stay home with the child.

The evidence established that the former husband, who was fifty-three years of age at the time of the hearing, has a master’s degree in tax law but has not been employed full time as an attorney since 1994. At the time of the modification hearing, the former husband had been employed full time as a real estate sales person for two to three months. In the year before the hearing, the former husband worked part time with a law firm doing estate work and earned only $10,300.

The former wife presented testimony from an economist, Dr. Hartley Mellish, who testified that based on 1995 Florida Bar statistics, United States Department of Labor statistics, and his own knowledge, the average annual earnings in Florida for attorneys with eight or more years of experience was $79,159. Mellish had not conducted a survey of, nor did he have information concerning, actual employment availability in the local area.

The court erred by imputing this level of income to the former husband for two reasons. First, the opinion testimony did not establish the prevailing earning level in the local community. Second, the record indicates that in spite of his advanced degrees, the most the former husband has ever earned was $65,000. Therefore, the trial court’s decision to impute $79,159 of income is not supported by competent, substantial evidence. Expert testimony establishing the prevailing earnings level for holders of a particular degree does not constitute evidence sufficient to impute that amount of income to a party. Hinton, 725 So. 2d at 1157. Accordingly, we reverse the child support award and remand this case for an evidentiary hearing at which the trial court may further consider evidence of the former husband’s earning capacity.

Affirmed in part, reversed in part, and remanded for further proceedings.

ALTENBERND, A.C.J., and . SALCINES, J., Concur.


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Citator

Cited By

  • Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008)
    …ecurities licenses. However, this court has held that even expert testimony concerning the earnings levels for persons who hold a particular degree does not constitute evidence sufficient to impute that amount of income to a party. Wendel v. Wendel, 805 So. 2d 913, 914 (Fla. 2d DCA 2001); Hinton, 725 So. 2d at 1157. Given this case law, certainly the Wife’s testimony that the Husband “should be able to earn more” is insufficient. At oral argument, counsel for the Wife contended that the trial court was permi…
  • Rabbath v. Hala M. Farid, 4 So. 3d 778 (Fla. 1st DCA 2009)
    …to the former wife in the 2003 final judgment of dissolution in Florida based on her 1992 salary earned in California, without conducting a proper inquiry and making appropriate findings regarding her current employment prospects); Wendel v. Wendel, 805 So. 2d 913, 914 (Fla. 2d DCA 2001); Smith, 737 So. 2d at 645; Cushman v. Cushman, 585 So. 2d 485, 486 (Fla. 2d DCA 1991). “In considering the imputation of income, the trial court’s findings must be supported by competent substantial evidence.” Vazquez v. Vazq…
  • Wendel v. Wendel, 852 So. 2d 277 (Fla. 2d DCA 2003)
    …t. The Former Husband appealed the trial court’s order. Both parties sought attorney’s fees on appeal pursuant to the terms of the MSA. This court affirmed the change in residential custody and the award of past due child support. Wendel v. Wendel, 805 So. 2d 913 (Fla. 2d DCA 2001) (Wendel I). However, this court reversed the imputation of income to the Former Husband, finding that the evidence did not support the amount of income imputed. This court remanded the case to the trial court for a new hearing on…

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