MICHAEL L. COCHRAN, APPELLANT,
v.
TRACY O. COCHRAN, APPELLEE
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In this family law appeal, the former husband challenges a dissolution of marriage judgment while the former wife cross-appeals. The court affirmed the award of permanent alimony based on imputed income from voluntary underemployment, but reversed the denial of prejudgment interest on temporary alimony arrearages and reversed the attorney's fees award because the property distribution left the parties in substantially equal financial positions.
The court affirmed the permanent alimony award and the imputation of income for voluntary underemployment as supported by competent substantial evidence. The court reversed the denial of prejudgment interest on the temporary alimony arrearage. The court reversed the attorney's fees award because the property distribution placed the parties in substantially equal financial positions.
[1] A trial court may impute income to a party found to be voluntarily underemployed based upon that party's demonstrated earning capacity.
[2] A party is entitled to prejudgment interest on temporary alimony arrearage.
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Join FLexlaw to unlock all legal intelligence“It is well settled that a trial court, who has made a finding that a party is voluntarily unemployed or underemployed, may properly impute income to that party based upon that party's demonstrated earning capacity.”
Establishes the legal standard allowing imputation of income when voluntary underemployment is found
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Join FLexlaw to unlock all legal intelligenceMichael and Tracy Cochran were parties to a dissolution of marriage proceeding. The trial court found that the former husband was voluntarily underemp…
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PER CURIAM.
Michael Cochran, the former husband, appeals from a final judgment of dissolution of marriage. Tracy Cochran, the former wife, cross appeals. For the following reasons, we affirm in part and reverse in part.
We affirm the award of permanent alimony. The trial court made the requisite findings under section 61.08, Florida Statutes (1997). Those findings are supported by competent substantial evidence in the record, including the finding that the husband is voluntarily underemployed. Accordingly, the trial court properly imputed income to the former husband. See, e.g., Arouza v. Arouza, 670 So. 2d 69, 71 (Fla. 3d DCA 1995) (“It is well settled that a trial court, who has made a finding that a party is voluntarily unemployed or underemployed, may properly impute income to that party based upon that party’s demonstrated earning capacity.”).
However, we agree with the former wife on cross appeal, and the former husband properly concedes, that the wife is entitled to prejudgment interest on the temporary alimony arrearage. See Warner v. Warner, 692 So. 2d 266, 270 (Fla. 5th DCA 1997). We therefore reverse the denial of the former wife’s request for prejudgment interest.
We also reverse the award of attorney’s fees to the former wife as the distribution leaves the parties on roughly equal financial footing. See Cortina v. Cortina, 461 So. 2d 964 (Fla. 3d DCA 1984) (“Because ... the effect of the final judgment is to place the wife in a financial position at least equal and likely superior to the appellant, it was error to assess any of her attorney’s fees against him.”); Golden v. Golden, 410 So. 2d 945 (Fla. 3d DCA 1982); Schiller v. Schiller, 625 So. 2d 856, 862 (Fla. 5th DCA 1993) (“[W]hen a dissolution decree leaves the parties in substantially equal financial circumstances, it is an abuse of discretion to award one party attorney’s fees against the other.”)
We find no merit in the parties’ remaining points on appeal. Accordingly, the final judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded.
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Ira Freilich v. Freilich, 897 So. 2d 537 (Fla. 5th DCA 2005)…ee Tarnawski v. Tarnawski, 851 So. 2d 239 (Fla. 4th DCA 2003); Bacon v. Bacon, 819 So. 2d 950 (Fla. 4th DCA 2002); Smith v. Smith, 737 So. 2d 641 (Fla. 1st DCA 1999); Shrove v. Shrove, 724 So. 2d 679 (Fla. 4th DCA 1999); see also Cochran v. Cochran, 819 So. 2d 863 (Fla. 3d DCA 2002); Warren v. Warren, 629 So. 2d 1079 (Fla. 3d DCA 1994). Other decisions, including decisions from this court, simply apply the often repeated general rule that “[a] court may impute income if a party is earning less than he could,…
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Hutchinson v. Hattie P. Hutchinson, 185 So. 3d 528 (Fla. 1st DCA 2015)…ll receive $3,500 per month in alimony” because “[a]fter the allocation of alimony from the former husband to the former wife, the former husband is in no better position to pay attorney’s fees than the former wife is”); see also Cochran v. Cochran, 819 So. 2d 863, 864 (Fla. 3d DCA 2002) (reversing the attorney’s fees award because the distribution left the parties “on roughly equal financial footing”); Lopez v. Lopez, 780 So. 2d 164, 166 (Fla. 2d DCA 2001) (reversing the award of attorney’s fees to the wife…
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Alvarez-Reyes v. Fernandez-Gil, 271 So. 3d 70 (Fla. 3d DCA 2019)…is marriage to Idia Fernandez-Gil. We affirm. The record contains competent substantial evidence to support the trial court’s determinations regarding Alvarez-Reyes’ voluntary underemployment and imputation of income. See Cochran v. Cochran, 819 So. 2d 863, 864 (Fla. 3d DCA 2002) (holding: “It is well settled that a trial court, who has made a finding that a party is voluntarily unemployed or underemployed, may properly impute income to that party based upon that party’s demonstrated earning capaci…
Authorities Cited
- Warner v. Warner, 692 So. 2d 266 (Fla. 5th DCA 1997)
- Golden v. Zina Golden, 410 So. 2d 945 (Fla. 3d DCA 1982)
- Schiller v. Schiller, 625 So. 2d 856 (Fla. 5th DCA 1993)
- Arouza v. Goldin C. Arouza, 670 So. 2d 69 (Fla. 3d DCA 1995)
- Cortina v. Leda M. Cortina, 461 So. 2d 964 (Fla. 3d DCA 1984)