LISA H. OWEN, APPELLANT,
v.
ROBERT A. OWEN, APPELLEE

Fla. 5th DCA | 2004-03-12
No. 5D03-1900
SAWAYA, C.J., and GRIFFIN, J., concur.
867 So. 2d 1222 Florida District Court of Appeal, Fifth District (2004) Positive Treatment
Cited by 8 cases

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Holding

The court held that while imputing income to a voluntarily unemployed parent is permissible, the amount imputed must be supported by evidence of prevailing earnings in the local community, not just national statistics.


Headnotes

[1] Imputation of income to an unemployed or underemployed parent is permissible when the unemployment or underemployment is voluntary, absent incapacity or other uncontrolla…

[2] To impute income to a voluntarily unemployed or underemployed parent, the court must determine the parent's employment potential and probable earnings based on recent wor…

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Facts & Procedural History

The trial court imputed an annual income of $66,000 to the former wife, who had been out of the workforce raising children since 1995. The former husb…

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Opinion of the Court
PALMER, J.

PALMER, J.

Lisa H. Owen (the former wife) timely appeals the final dissolution judgment entered by the trial court in which (1) Robert A. Owen (the former husband) was awarded primary residential custody of the parties’ minor children, and (2) an annual income of $66,000 per year was imputed to the former wife. Finding no abuse of discretion in the trial court’s decision awarding primary residential custody to the former husband, we affirm as to that issue. However, finding that the former husband failed to meet the burden of proof necessary to impute income in the amount of $66,000 per year to the former wife, we reverse as to that issue.

With regard to the trial court’s imputation of income, the evidence showed that the former wife’s last full-time job was in 1995 and that she earned $33,000 per year at that time. Since that time, the former wife has earned a masters degree in electrical engineering, but has not been in the work force because she was the primary custodian of the parties’ minor children.

Section 61.30 of the Florida Statute (2000) provides the following with regard to imputed income:

61.30 Child support guidelines; retroactive child support:
* * *

(b) 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 ...

Since the evidence was undisputed that at the time of the dissolution hearing the former wife was voluntarily unemployed, the trial court’s imputation of income to her was appropriate. However, as the former wife aptly argues, it was error to impute income to her in an amount which exceeded the $33,000 she previously earned in the job market since the former husband failed to present evidence as to the availability in the community of jobs for the former wife and the salary which she could earn at those jobs. The only evidence presented by the former husband with regard to the imputation of income were two sets of statistics of which the trial court took judicial notice: (1) the U.S. Department of Labor Bureau of Labor Statistics Report that placed the 2000 national median annual earnings for electrical engineers at $64,910.00, and (2) the Career Center at Carnegie Mellon report for 2002 that placed the national median salary for masters prepared electrical and computer engineers at $66,000.00. Neither of these reports specifically address the availability of jobs in the area where the former wife resides nor the salary payable for jobs in the Central Florida area or, for that matter, in any community.

The Fourth District explained in Tarnawski v. Tarnawski, 851 So. 2d 239 (Fla. 4th DCA 2003), that the trial court’s finding regarding imputation of income must be supported by substantial competent evidence and it is error for the trial court to impute income to a spouse in an amount higher than the spouse has historically earned, absent special circumstances. The importance of determining income for the local community was shown in Stebbins v. Stebbins, 754 So. 2d 903 (Fla. 1st DCA 2000), where the court held that the prevailing income in the community in which the person was located, not income that could have been earned from relocation, must be used in establishing the amount of income to impute. Other courts have held evidence of the nature utilized in this case insufficient. For example, in Hinton v. Smith, 725 So. 2d 1154 (Fla. 2d DCA 1998), the court held that expert testimony establishing the prevailing earnings level for a particular degree does not constitute evidence sufficient to impute that amount of income for child support purposes. Similarly, in Iglesias v. Iglesias, 711 So. 2d 1316 (Fla. 2d DCA 1998), the court found insuf ficient for purposes of imputed income evidence of the employment section of the newspaper where the husband resided, reflecting multiple jobs opening, noting there was nothing to indicate that any of these jobs were available to the husband, or what the rate of pay was.

The evidence presented in this case was woefully inadequate to support a finding of an imputed income of $66,000 for the former wife. Although the former husband presented evidence as to the former wife’s work history (having earned $33,000 when last in the job market) and her occupational qualifications (having earned a masters degree in engineering), he presented absolutely no evidence regarding the “prevailing earnings level in the community.”

Accordingly, we reverse the trial court’s imputation of $66,000 in income to the former wife and remand this matter to the trial court to enter an amended order limiting imputed income to $33,000 per year. AFFIRMED in part, REVERSED in part, REMANDED.

SAWAYA, C.J., and GRIFFIN, J., concur.


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Cited By

  • Brown v. Cannady-Brown, 954 So. 2d 1206 (Fla. 4th DCA 2007)
    …ot obtain other employment at similar earnings as he has historically done” and “[h]e failed to present evidence of any good faith efforts to seek substitute employment.” See Andrews, 867 So. 2d at 478 n. 2 (citation omitted); see also Owen v. Owen, 867 So. 2d 1222, 1223 (Fla. 5th DCA 2004) (agreeing that “it was error to impute income to [former wife] in an amount which exceeded the $33,000 she previously earned in the job market since the former husband failed to present evidence as to the availability in th…
  • Eroga v. Eroga, 166 So. 3d 183 (Fla. 1st DCA 2015)
    …1st DCA 2000) (holding that the trial court’s determination that the former husband, an engineer, was underemployed because he did not expand his job search to include positions in Louisiana, Texas, and Georgia was improper); see also Owen v. Owen, 867 So. 2d 1222, 1223- [*187] 24 (Fla. 5th DCA 2004) (noting that expert testimony establishing the prevailing earnings level for a particular degree does not constitute evidence sufficient to impute that amount of income for child support purposes). Here, the for…
  • Saucier v. Nowak, 200 So. 3d 1298 (Fla. 5th DCA 2016)
    …lebo-tomist. In its final judgment, the trial court imputed income to Nowak based on full-time minimum wage employment. Florida trial courts may impute income to voluntarily unemployed parents when computing child support payments. See Owen v. Owen, 867 So. 2d 1222, 1223 (Fla. 5th DCA 2004). We remand to the trial court with instructions to amend the final judgment to reflect imputation of income to Nowak based on full-time employment as a phlebotomist. See Butler, 118 So. 3d at 992. The trial court did not a…

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