MICHAEL W. ALICH, APPELLANT,
v.
KARA CLAPP, APPELLEE
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In this family law appeal, the Fourth District Court of Appeal affirmed the trial court's striking of the father's pleadings as a sanction but reversed on issues concerning imputation of income for child support calculations and denial of visitation rights, finding insufficient evidence and lack of required findings regarding the child's welfare.
The court affirmed the striking of pleadings as a discretionary sanction but reversed the income imputation as unsupported by competent, substantial evidence. The court also reversed the allocation of medical expenses and the visitation denial, finding no findings were made regarding the child's welfare or need for protection from the father.
[1] Striking a party's pleadings is a harsh sanction, but it is within the trial court's discretion.
[2] A trial court may deny a party the ability to present evidence on financial issues when striking that party's pleadings.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.”
Establishes the legal standard for imputing income in child support cases
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Join FLexlaw to unlock all legal intelligenceA family law dispute arose between Michael Alich (father) and Kara Clapp regarding child support, medical expenses, and visitation. The trial court st…
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REYES, ISRAEL U., Associate Judge.
The first issue for us to consider is whether the trial court erred in striking the father’s pleadings. Although it is a very harsh sanction, it was within the trial court’s discretion to strike the father’s pleadings. Hoffman v. Hoffman, 718 So. 2d 371 (Fla. 4th DCA 1998). It was also within the court’s discretion to deny the father the ability to present evidence on testimony at the trial with respect to financial issues. Id. Therefore, on this issue we affirm.
Next, the father is correct that the trial court erred in imputing income to him for purposes of determining his child support obligation. The trial court’s determination was not supported by competent, substantial evidence. See Schram v. Schram, No. 4D04-1622, — So. 2d -, 2005 WL 2138747 (Fla. 4th DCA Sept.7, 2005). The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. Konsoulas v. Konsoulas, 904 So. 2d 440, 443 (Fla. 4th DCA 2005). It is error to rely on outdated income figures when determining what level of income to impute to a parent. See § 61.30(2)(b), Fla. Stat. (2001); Wendel v. Wendel, 852 So. 2d 277, 284 (Fla. 2d DCA 2003); see also Mitchell v. Mitchell, 841 So. 2d 564, 569 (Fla. 2d DCA 2003). There was no evidence or findings as to the father’s earning potential, source of imputed and actual income, and adjusted income. On this issue, we reverse and remand for the court to make appropriate findings.
Because the trial court erred in imputing income to the father, the trial court also erred in determining that the father had the superior ability to pay seventy percent of the unreimbursed medical expenses. See Wilkinson v. Wilkinson, 714 So. 2d 524 (Fla. 5th DCA 1998). On remand, the trial court should reconsider the obligation to pay unreimbursed medical expenses based on the parties’ current incomes. See Martinez v. Martinez, 911 So. 2d 288, 289 (Fla. 2d DCA 2005); Cooper v. Cooper, 760 So. 2d 1048, 1050 (Fla. 2d DCA 2000).
Finally, as to the issue of visitation, we reverse and remand with directions that a visitation schedule be implemented in keeping with the standard visitation schedule utilized by the courts. No find ings were made that the welfare of the child was affected by visitation with the father or that there was a need to protect the child. See Damiani v. Damiani, 835 So. 2d 1168, 1169 (Fla. 4th DCA 2002) (the privilege of visiting the minor children of the parties to a divorce proceeding should never be denied either parent so long as the parents conduct themselves in a manner which will not adversely affect the morals or welfare of such children).
Accordingly, after the trial court recalculates the parties’ incomes and child support obligations, it should determine each party’s ability to pay the unreimbursed medical expenses and order payment based on the same percentage as the parties’ incomes.
Affirmed in Part, Reversed in Part, and Remanded with Directions.
STONE and KLEIN, JJ., concur.
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Authorities Cited
- Franz Edward Mitchell v. Mitchell, 841 So. 2d 564 (Fla. 2d DCA 2003)
- Stavros Konsoulas v. Konsoulas, 904 So. 2d 440 (Fla. 4th DCA 2005)
- Wendel v. Wendel, 852 So. 2d 277 (Fla. 2d DCA 2003)
- Cooper v. Cooper, 760 So. 2d 1048 (Fla. 2d DCA 2000)
- Damiani v. Rommel Damiani, 835 So. 2d 1168 (Fla. 4th DCA 2002)
- Wilkinson v. Wilkinson, 714 So. 2d 524 (Fla. 5th DCA 1998)
- Martinez v. Bonita Kay Martinez, 911 So. 2d 288 (Fla. 2d DCA 2005)
- Garnsey v. State, 718 So. 2d 371 (Fla. 4th DCA 1998)
- Hoffman v. Hoffman, 718 So. 2d 371 (Fla. 4th DCA 1998)