JODY R. YOUNG, APPELLANT,
v.
MELINDA TAUBMAN, APPELLEE

Fla. 4th DCA | 2003-09-10
No. 4D02-1457
WARNER and HAZOURI, JJ., concur.
855 So. 2d 184 Florida District Court of Appeal, Fourth District (2003) Positive Treatment
Cited by 7 cases

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Synopsis

In this family law appeal, the Fourth District Court of Appeal reversed a trial court's upward modification of child support and attorney's fees award, finding the trial court erred by failing to impute income to the former wife and by making insufficient findings regarding the reasonableness of attorney's fees. The court affirmed all other aspects of the trial court's orders regarding dissolution of marriage issues.


Holding

The court reversed the upward modification of child support because the trial court failed to impute income to the former wife as required by statute. The court also reversed the attorney's fees award and remanded because the trial court made insufficient findings regarding the number of hours expended and failed to include essential evidentiary support regarding how the attorney hours were spent.


Headnotes

[1] A trial court errs in modifying child support by failing to impute income to an unemployed or underemployed parent without a finding of incapacity, lack of control over c…

[2] A trial court must make specific findings regarding the number of hours expended and the reasonable hourly rate when awarding attorney's fees.

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Key Quotes

“Section 61.30(2)(b), Florida Statutes, governs the imputation of income to an unemployed or underemployed spouse and requires imputation of income to a voluntarily unemployed or underemployed parent unless the parent suffers from a "physical or mental incapacity or other circumstance over which the parent has no control" or the court finds that it is necessary for the primary residential parent to stay home with the child.”

Establishes the legal standard for when income must be imputed to an underemployed parent in child support calculations.

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Facts & Procedural History

Young and Taubman were divorced in 1994. Beginning in April 2000, Taubman sought to enforce and modify the dissolution judgment. The former wife held …

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Opinion of the Court
STEVENSON, J.

STEVENSON, J.

The parties to this appeal, Jody Robert Young and Melinda Taubman, were divorced in 1994. Commencing April 2000, Taubman sought to both enforce and modify the terms of the final judgment of dissolution. Ultimately, the trial court entered an order that (1) gave the former wife authority to make decisions regarding their daughter’s acting/modeling career, (2) directed the former husband to comply with the provision in the marital settlement agreement, wherein he agreed to obtain a “get” (a divorce under Jewish law), (3) directed the former husband to reimburse the former wife for camp, day care expenses and certain medical bills and (4) increased the former husband’s child support obligation. Thereafter, the court entered a second order, requiring the former husband to pay some $95,000 in attorney’s fees and costs incurred by the former wife. The former husband has appealed and challenges virtually every aspect of both orders. We write to address only two issues — the upward modification of child support and the attorney’s fees and costs award. As to all other issues, we find no error and affirm without further discussion.

Child Support

The former husband challenges the upward modification of his child support obligation on a number of grounds. We find merit in his claim that the trial judge erred in failing to impute income to the former wife and reverse the upward modification of the former husband’s child support obligation on this basis.

With respect to the former wife’s income and ability to earn, the evidence before the lower court was that Melinda Taubman holds a bachelor’s degree in sociology and was employed as a social worker briefly while residing in New York in 1984. According to the former wife, without a master’s degree she is not qualified to do social work in Florida. Since residing in Florida, the former wife has held a number of jobs, most of which were part-time: she was a partner in a modeling agency; she obtained a real estate license; she worked at her daughter’s school; and she worked as a marketing representative with the Boca Raton Museum of Cartoon Art. As for her current income, the former wife testified that she was employed part-time. Accord ing to the former wife, part-time employment is necessitated by the demands of their daughter’s career. The former wife’s financial affidavit reflects that she is employed by American Greeting Cards, earns $7.05 per hour, and has gross monthly earnings of $240.00. Additionally, since the former wife and the child were residing with the former wife’s parents, she also included $1200 in income to represent the rent and utilities paid on their behalf. On this evidence, the trial court refused to impute income to the former wife.

Section 61.30(2)(b), Florida Statutes, governs the imputation of income to an unemployed or underemployed spouse and requires imputation of income to a voluntarily unemployed or underemployed parent unless the parent suffers from a “physical or mental incapacity or other circumstance over which the parent has no control” or the court finds that it is necessary for the primary residential parent to stay home with the child. See also Shrove v. Shrove, 724 So. 2d 679, 682 (Fla. 4th DCA 1999); Stebbins v. Stebbins, 754 So. 2d 903, 905 (Fla. 1st DCA 2000). As to the first of the exceptions to the imputation of income, there was no evidence that the former wife is incapacitated in any way. As to the latter, the trial court never made any finding that it was necessary for the former wife to stay home with the child. Moreover, even if the court had determined that the former wife could not work full-time due to the child’s modeling/acting career, certainly she could work more than thirty-four hours per month or an average of 8.5 hours per week ($240.00 divided by $7.05 per hour) since the record established that the child was attending school. Accordingly, we reverse the child support award and remand so that the trial court may recalculate the amount of support owed by each parent after imputing additional income to the former wife.1

Attorney’s Fees and Costs

Following entry of its order modifying the terms of the final judgment of dissolution, the court rendered a second order, requiring the former husband to pay $95,000 in attorney’s fees and costs incurred by the former wife. The fee award finds only that the fees charged “were both reasonable and necessary” and that the hourly rates were reasonable.

The former husband has sought review of the fee award, arguing, among other things, that reversal is required due to the trial court’s failure to make specific findings as to the number of hours expended and the amount of a reasonable hourly rate. The judge is indeed required to make these specific findings. See, e.g., Saporito v. Saporito, 831 So. 2d 697 (Fla. 5th DCA 2002). Moreover, a review of the transcript of the fee hearing reflects that, here, there was insufficient evidence on which the court could have predicated such a finding. While there was evidence as to the number of hours logged by the former wife’s attorneys and the rate each attorney charged, there was no evidence as to how these hours were spent.

Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand. However, when the record contains some competent substantial evidence supporting the fee or cost order, yet fails to include some essential evidentiary support such as testimony from the attorney performing the services, or testimony from additional expert witnesses, the appellate court will reverse and remand the order for additional findings or an additional hearing, if necessary.

Rodriguez v. Campbell, 720 So. 2d 266, 268 (Fla. 4th DCA 1998) (citations omitted). As the instant ease falls into this latter category, we reverse the fee award and remand for further proceedings.2

AFFIRMED in part, REVERSED in part and REMANDED.

WARNER and HAZOURI, JJ., concur. . Our conclusion in this regard will also require recalculation of the amount of the daycare and camp expenses that the former husband is required to reimburse the former wife as the parties' respective obligations are based upon their income.

. Effective October 1, 1993, the legislature amended section 61.16(1), Florida Statutes, to provide that ''[a]n application for attorney’s fees, suit money, or costs, whether temporary or otherwise, shall not require corroborating expert testimony in order to support an award under this chapter.” Ch. 93-188, §§ 6, 9, at 1696-97, Laws of Fla. Nevertheless, the addition of this language "did not alter the burden of the party seeking fees to prove with evidence [the] reasonableness and necessity of the fees sought.” Safford v. Safford, 656 So. 2d 485, 486 (Fla. 2d DCA 1994).


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Citator

Cited By

  • Hentze v. Cherolyn Janel Denys, 88 So. 3d 307 (Fla. 1st DCA 2012)
    …rt a finding of substantial change in circumstances”). Accordingly, we must reverse on this point, and remand with instructions to impute to the former wife income consistent with the guidelines set out in section 61.30(2)(b).2 See Young v. Taubman, 855 So. 2d 184, 186 (Fla. 4th DCA 2003) (reversing child support award and remanding so that trial court could recalculate the amount of support owed by each [*312] parent after imputing additional income to the former wife). Finally, the former husband argues th…
  • Faircloth v. Bliss, 917 So. 2d 1005 (Fla. 4th DCA 2006)
    …97); Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999). However, when there is some competent evidence in the record supporting the award, the appellate court will reverse and remand for additional findings or additional hearings. Young v. Taubman, 855 So. 2d 184, 186-87 (Fla. 4th DCA 2003). Here, the record is devoid of any competent evidence regarding the number of hours reasonably expended, the reasonable hourly rate or details of the services performed. We, therefore, reverse the fee award without remand…
  • Rakusin v. Christiansen & Jacknin, P.A., 863 So. 2d 442 (Fla. 4th DCA 2003)
    …dence of a reasonable hourly rate and reasonableness of the hours expended were offered at the hearing. We therefore conclude that the court erred in awarding fees without corroborating expert testimony of their reasonableness. In Young v. Taubman, 855 So. 2d 184 (Fla. 4th DCA 2003), in a similar situation, we permitted the court to take further evidence on remand to cure the defect, explaining: Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent subst…

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