ALLAN ZUBKIN, APPELLANT,
v.
JOY GRACE ZUBKIN, APPELLEE
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A physician who lost his surgical privileges and medical income appealed a child support modification order in which the trial court imputed an additional $24,000 to his $96,000 salary. The court reversed because the imputation lacked specific findings of fact and was not supported by evidence that the obligor had the opportunity to earn additional income.
The court held that the imputation of income was improper because it lacked specific findings of fact and was unsupported by evidence that Zubkin had the opportunity to work an additional day per week or find other employment. The court also held that while the decision not to make the modification retroactive is discretionary, the trial court should have stated reasons for that decision.
[1] A trial court may only impute income to a party who is voluntarily unemployed or underemployed.
[2] The imputation of income must be supported by specific findings of fact indicating the amount and source of the imputed income.
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Join FLexlaw to unlock all legal intelligence“A trial court may only impute income to a party who is voluntarily unemployed or under-employed.”
Establishes the legal standard for when income imputation is permissible in child support cases.
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Join FLexlaw to unlock all legal intelligenceAllan Zubkin, a physician, permanently lost his surgery privileges at two hospitals and was registered as suspended in the National Practitioner's Dat…
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PETERSON, J.
Allan Zubkin appeals an order modifying child support in which the trial court imputed an additional $24,000 to Zubkin’s $96,000 salary and made the modification effective on the date of the order. Zubkin is a physician who permanently lost his surgery privileges at the two hospitals where he performed surgery. When he lost his privileges, he was also registered as a suspended surgeon with the National Practitioner’s Database. The loss of privileges at two hospitals and the registration in the database effectively eliminated his surgical practice from which he previously generated income of $150,000 to $180,000 per year. His subsequent efforts to gain employment as a physician resulted in his appointment as a medical director of a Wellness Center four days per week at an annual salary of $96,000.
The trial court reduced Zubkin’s child support obligation from $2,400 per month to $1,700 per month based upon his change of circumstances and an income of $120,000 per year. The trial court refused to further reduce the child support based upon the $96,000 current salary and imputed income at an additional $24,000 per year because Zubkin worked only four days per week for the Wellness Center; Zubkin formerly worked at least five days per week before the surgery privileges were revoked.
A trial court may only impute income to a party who is voluntarily unemployed or under-employed. See Walker v. Walker, 719 So. 2d 977, 980 (Fla. 5th DCA 1998); § 61.30(2)(b), Fla. Stat. (2001). The imputation must be supported by specific findings of fact indicating the amount and source of the imputed income. See Woodard v. Woodard, 634 So. 2d 782, 783 (Fla. 5th DCA 1994). There is an absence of specific findings of fact in the order rendered in the instant case. The imputation of income in the order is supported only by the trial court’s comments that it was not convinced that Zubkin could not make more than $96,000 per year, perhaps by working an extra day of the week. No testimony was presented that Zubkin had the opportunity to work an additional day with his current employer or that he could find work for just one day with any employer. Zubkin also complains that the trial court erred by failing to modify his child support obligations retroactive to the date that he filed his petition for modification. Whether the trial court considered the issue is not reflected by the order. A decision not to make the modification retroactive is discretionary, but reasons for not doing so should be stated. See King v. King, 734 So. 2d 542 (Fla. 5th DCA 1999). We vacate the order modifying child support and remand. The trial court is instructed to:
1. Recalculate child support without imputing income.
2. Reconsider retroactive modification and state the reason for not doing so if that is the result.1
ORDER VACATED; REMANDED.
HARRIS and GRIFFIN, JJ„ concur. . The trial court found that Zubkin had recently opened his own private practice and perhaps that was the reason for its conclusion that an extra day per week of earning was available. The record does not support the finding.
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Woolf v. Woolf, 901 So. 2d 905 (Fla. 4th DCA 2005)…le and the loss of his rainmaking partner and many of the firm’s clients. This critical failure of proof requires reversal of the modification denial which was predicated on the former husband’s deliberate underemployment. See also Zubkin v. Zubkin, 823 So. 2d 870 (Fla. 5th DCA 2002) (reversing modification decree which imputed excessive income). This court’s decision in Florida Dept. of Revenue ex. rel. Kaiser v. Kaiser, 890 So. 2d 364 (Fla. 4th DCA 2004), is distin [*913] guishable. The former husband in t…
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Andrews v. Andrews, 867 So. 2d 476 (Fla. 5th DCA 2004)…However, where, as here, the court imputes income in an amount which is not apparent from the record, the court must specifically indicate the amount and source. Zanone v. Clause, 848 So. 2d 1268, 1271 (Fla. 5th DCA 2003). See also Zubkin v. Zubkin, 823 So. 2d 870 (Fla. 5th DCA 2002); Batson v. Batson, 821 So. 2d 1141 (Fla. 5th DCA 2002); Vitek v. Vitek, 661 So. 2d 965 (Fla. 5th DCA 1995); Strickland v. Strickland, 639 So. 2d 149 (Fla. 5th DCA 1994). In determining the amount of income to impute, the court mu…
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Zanone v. Clause, 848 So. 2d 1268 (Fla. 5th DCA 2003)…findings as to any amount it was imputing to Zanone and without finding that Zanone was underemployed, the court imposed the fee order, presumably imputing some additional income to Zanone that was not evidenced at the hearing. In Zubkin v. Zubkin, 823 So. 2d 870 (Fla. 5th DCA 2002), this court described what was necessary to properly impute income: A trial court may only impute income to a party who is voluntarily unemployed or under-employed. See Walker v. Walker, 719 So. 2d 977, 980 (Fla. 5th DCA 1998);…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Woodard v. Jaymie Sands Woodard, 634 So. 2d 782 (Fla. 5th DCA 1994)
- Walker v. Walker, 719 So. 2d 977 (Fla. 5th DCA 1998)
- King v. King, 734 So. 2d 542 (Fla. 5th DCA 1999)