GERALDINE LEANN GERTHE, APPELLANT,
v.
CHRIS ALLEN GERTHE, APPELLEE
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A former wife appeals a modification order regarding child support and visitation following a change in primary custody of the parties' two minor children. The appellate court affirmed the rigid visitation schedule established by the trial court but reversed the imputation of income used to calculate child support, finding insufficient evidentiary basis for the trial court's determination that the former wife could work part-time.
The appellate court held that the trial court abused its discretion by imputing income to the former wife without competent, substantial evidentiary support, and therefore reversed that portion of the child support award. However, the court affirmed the trial court's establishment of a rigid visitation schedule, finding no abuse of discretion.
[1] A trial court has broad discretion in establishing a child visitation schedule.
[2] A trial court may impute income to an unemployed or underemployed parent only when the unemployment or underemployment is voluntary and not due to physical or mental inca…
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Join FLexlaw to unlock all legal intelligence“Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment 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.”
States the statutory standard governing imputation of income for child support purposes under Florida law
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced in 1991. In May 2001, primary residence of their two minor sons was changed from the former wife to the former husband. The …
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SALCINES, Judge.
Geraldine Leann Gerthe, the former wife, appeals the “Order Modifying Final Judgment of Dissolution of Marriage (Child Support and Specified Visitation).” We agree that the trial court erred when it imputed income to the former wife and reverse that portion of the trial court’s ruling. In all other respects we affirm the trial court’s order. The parties were divorced in 1991. An order was entered in May 2001 which changed the primary residence of the parties’ two minor sons from the former wife to the former husband, Chris Allen Gerthe. In August 2001, the former husband filed a motion in which he requested that the trial court establish a new visitation schedule for the boys and award child support from the former wife.
At the hearing on the former husband’s motion, the trial court properly restricted the testimony presented to only those matters which were then pending before the court. After hearing testimony regarding the extreme difficulties encountered by the parties due to the liberal visitation schedule instituted upon the dissolution of the marriage, the trial court established a rigid schedule.
A trial court has great discretion in creating a visitation schedule. Keitel v. Keitel, 724 So. 2d 1255, 1257 (Fla. 4th DCA 1999). We hold that the trial court, in the present case, did not abuse its discretion in setting the visitation schedule and in eliminating the flexibility which created problems for the parties.
With regard to the former wife’s ability to pay child support and the imputation of income, the evidence presented at the hearing demonstrated that she was unemployed at the time of the hearing. She had a high school education but had not been employed since 1994. In February 2000, the former wife was injured when she was struck by a large branch from a tree that was being cut down. She testified that she had difficulty walking, sitting, and standing, and that she had migraine headaches as well. Two letters from doctors were admitted into evidence to support the former wife’s statements concerning her physical condition. The former wife had been prescribed narcotic analgesics which she took regularly to relieve pain. The former wife indicated that she had applied for social security disability insurance (SSDI), but those benefits had been denied. However, she testified that she was continuing to pursue SSDI benefits and was attempting to obtain job training.
The trial court order states that the former wife “may have some physical limitation on her ability to work, however, the Court finds that she is able to be employed on at least a part-time basis.” Based upon that finding, it imputed income of fifty percent of minimum wage.
The issue of the imputation of income to a parent is governed by section 61.30(2)(b), Florida Statutes (2001), which states:
Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment 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 standard of review for a trial court’s imputation of income for purposes of determining a parent’s child support obligation is whether there is competent, substantial evidence to support it. Wendel v. Wendel, 805 So. 2d 913, 913 (Fla. 2d DCA 2001); Artuso v. Dick, 843 So. 2d 942, 945 (Fla. 4th DCA 2003).
After reviewing the record in the present case, we are unable to find an evidentiary basis to support the trial court’s determination. Accordingly, we reverse that portion of the trial court order which directed the former wife to pay the sum of $146.30 per month to the former husband.
We note that the child support issue may be revisited should the former wife’s physical condition improve or should she obtain employment at some time in the future.
Affirmed in part, reversed in part, and remanded for further proceedings.
FULMER and VILLANTI, JJ., concur.
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Andrews v. Andrews, 867 So. 2d 476 (Fla. 5th DCA 2004)…ted by BellSouth for cause, there was no as [*479] surance she would ever be rehired by Bell-South. As noted above, there must be substantial competent evidence in the record to support the level of income imputed to a spouse. See Gerthe v. Gerthe, 857 So. 2d 306, 307 (Fla. 2d DCA 2003); LaFlam v. LaFlam, 854 So. 2d 809 (Fla. 2d DCA 2003). In this case, the only evidence regarding Rebecca’s income was her prior salary of $75,466 earned in 2000, and a past earnings history record averaging $50,000 per year, b…
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Brown v. Cannady-Brown, 954 So. 2d 1206 (Fla. 4th DCA 2007)…gs to establish a level of imputed income supported by com [*1209] petent, substantial evidence, the court found: [T]here must be substantial competent evidence in the record to support the level of income imputed to a spouse. See Gerthe v. Gerthe, 857 So. 2d 306, 307 (Fla. 2d DCA 2003); LaFlam v. LaFlam, 854 So. 2d 809 (Fla. 2d DCA 2003). In this case, the only evidence regarding [the former wife’s] income was her prior salary of $75,466 earned in 2000, and a past earnings history record averaging $50,000 p…
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Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005)…y failed to provide expert testimony is similarly unavailing. Courts have not required expert testimony to hold that lower courts did not have sufficient evidentiary bases for imputing income against partially disabled spouses. See Gerthe v. Gerthe, 857 So. 2d 306, 307-308 (Fla. 2d DCA 2003) (reversing the trial court’s finding that the wife could work at least part-time, though she suffered migraines and difficulty walking or sitting, because the finding was not supported by evidence); Tarnawski v. Tarnawski…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Artuso v. Dick, 843 So. 2d 942 (Fla. 4th DCA 2003)
- Wendel v. Wendel, 805 So. 2d 913 (Fla. 2d DCA 2001)
- Keitel v. Keitel, 724 So. 2d 1255 (Fla. 4th DCA 1999)