MARIANN C. HUDSON-MCCANN, APPELLANT,
v.
LAURENCE L. MCCANN, APPELLEE
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In this dissolution of marriage case, the Fifth District Court of Appeal affirmed the trial court's award of primary residential responsibility to the husband but reversed the imputation of income to the wife, the resulting child support calculation, and the attorney's fees award, finding these determinations lacked sufficient evidentiary support.
The Court affirmed the award of primary residential responsibility to the husband as supported by competent, substantial evidence, but reversed the imputation of income to the wife, the resulting child support calculation, and the attorney's fees award, finding that none of these were adequately supported by the record.
[1] A trial court's determination of primary parental responsibility is reviewed for an abuse of discretion and must be supported by competent, substantial evidence.
[2] Imputation of income to a party in a dissolution proceeding requires competent, substantial evidence of the party's earning potential, work history, qualifications, and p…
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Join FLexlaw to unlock all legal intelligence“The finding that it was in the best interest of the child for the father to be designated the primary residential parent is supported by competent, substantial evidence, and therefore must be affirmed.”
Establishes the standard for reviewing custody determinations and supports affirmance of the primary residence award to the husband.
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Join FLexlaw to unlock all legal intelligenceThe wife appealed a Final Judgment in a dissolution of marriage proceeding. The trial court awarded primary residence of the child to the husband, imp…
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In this dissolution of marriage proceeding, the wife challenges provisions of the Final Judgment awarding primary residence of the child to the husband, imputing income to the wife, establishing child support based upon the imputed income and requiring each party to bear his or her own attorney’s fees and costs. For the reasons set forth herein, we affirm the award of primary residence to the husband, but reverse as to the remaining issues.
The standard of review for the trial court’s findings and determination regarding primary parental responsibility is abuse of discretion. The trial court’s findings regarding the best interest of the child must be supported by competent, substantial evidence. Knifley v. Knifley, 944 So.2d 1136 (Fla. 5th DCA 2006). The trial court heard testimony of the parties, the expert witnesses and other witnesses at several temporary hearings and finally at the trial. The trial court appears to have considered the many statutory factors contained in Chapter 61.13, Florida Statutes (2004). As the trial court has made the appropriate finding, we will not re-weigh the factual evidence so long as it is supported by the record. Lahodik v. Lahodik, 969 So.2d 533 (Fla. 1st DCA 2007). The finding that it was in the best interest of the child for the father to be *1230designated the primary residential parent is supported by competent, substantial evidence, and therefore must be affirmed. Cadle v. Norris, 817 So.2d 1075 (Fla. 5th DCA 2002).
Next, the wife challenges the trial court’s imputation of income to her in the amount of $2,000 per month. We conclude after a review of the record that the court’s imputation of income to the wife is not supported by competent, substantial evidence. There was no evidence presented that the wife had ever earned $2,000 per month. Roth v. Roth, 973 So.2d 580 (Fla. 2d DCA 2008). There was also no evidence presented by either party regarding the wife’s employment potential and probable earnings, based upon her work history and qualifications. Schram v. Schram, 932 So.2d 245 (Fla. 4th DCA 2005). Likewise, neither party presented any evidence regarding the prevailing wages in the community for someone with the wife’s qualifications and background. Guard v. Guard, 993 So.2d 1086 (Fla. 5th DCA 2008). The imputation of income to the wife cannot be sustained and, accordingly, must be reversed.
The wife also appeals the trial court’s ruling regarding child support. Because child support is a creature of the combined income of the parents, actual or imputed, our reversal of the imputed income requires the trial court to revisit and recalculate the child support to be awarded. Hotaling v. Hotaling, 962 So.2d 1048 (Fla. 2d DCA 2007).
To sustain the attorney’s fees ruling, the court must make findings and the record must support the comparative needs and abilities of the parties to pay attorney’s fees. The trial court’s ruling, which required each party to pay his or her own attorney’s fees, does not contain any findings. In the absence of such findings, we reverse the award and remand on this issue as well. Fulmer v. Fulmer, 961 So.2d 1081 (Fla. 1st DCA 2007).
AFFIRMED in part, REVERSED in part and REMANDED.
MONACO and COHEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Abbott v. Abbott, 98 So. 3d 616 (Fla. 2d DCA 2012)…ental responsibility carries a presumption of correctness and will not be disturbed absent an abuse of discretion. Wade v. Hirschman, 903 So. 2d 928, 935 (Fla.2005) (citing In re Gregory, 313 So. 2d 735, 738 (Fla.1975)); see Hudson-McCann v. McCann, 8 So. 3d 1228, 1229 (Fla. 5th DCA 2009). “In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings.” Nabinger v. Nabinger, 82 So. 3d 1075, 1076 (Fla. 1st DCA 2011). To grant unrequested relie…
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Smith v. Smith, 39 So. 3d 458 (Fla. 2d DCA 2010)…However, there is nothing in the record establishing that this amended schedule had been filed or that the child support had been corrected. Thus we direct the trial court to address this error on remand as well. See, e.g., Hudson-McCann v. McCann, 8 So. 3d 1228, 1230 (Fla. 5th DCA 2009) (finding that an error regarding a spouse’s income “requires the trial court to revisit and recalculate the child support to be awarded”). Finally, Mrs. Smith contends that the trial court did not properly consider the bes…
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Mariann C. Hudson-McCANN v. Laurence L. McCANN, 50 So. 3d 735 (Fla. 5th DCA 2010)…n-McCann appeals from an amended final judgment ordering her to pay child support and denying her request for attorney’s fees. The amended final judgment was entered after this court reversed the original final judgment. See Hudson-McCann v. McCann, 8 So. 3d 1228 (Fla. 5th DCA 2009). Unfortunately, we must also reverse the amended final judgment and remand for further proceedings. The parties were married for eleven years prior to the filing of the petition for dissolution of marriage. One child was born of…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008)
- Schram v. Schram, 932 So. 2d 245 (Fla. 4th DCA 2005)
- Hotaling v. Hotaling, 962 So. 2d 1048 (Fla. 2d DCA 2007)
- Fulmer v. Hobson Fulmer, 961 So. 2d 1081 (Fla. 1st DCA 2007)
- Lahodik v. Lahodik, 969 So. 2d 533 (Fla. 1st DCA 2007)
- Guard v. Guard, 993 So. 2d 1086 (Fla. 5th DCA 2008)
- Knifley v. Wally Knifley, 944 So. 2d 1136 (Fla. 5th DCA 2006)
- Cadle v. Norris, 817 So. 2d 1075 (Fla. 5th DCA 2002)