MARIANN C. HUDSON-MCCANN, APPELLANT,
v.
LAURENCE L. MCCANN, APPELLEE

Fla. 5th DCA | 2010-12-17
No. 5D09-4019
COHEN, J., and FLEMING, J.M., Associate Judge, concur.
50 So. 3d 735 Florida District Court of Appeal, Fifth District (2010) Positive Treatment
Cited by 7 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Mariann Hudson-McCann appeals from an amended final judgment ordering her to pay child support and denying attorney's fees. The court reverses and remands because the trial court improperly considered the father's alimony obligation—which had already terminated—when recalculating child support after the court's prior reversal.


Holding

The court affirmed the imputation of income to the mother as supported by competent, substantial evidence of her prior earnings and recovery from medical conditions. However, the court reversed because the trial court erred in considering the father's $1,200/month alimony obligation—which had terminated before the amended judgment—when calculating the parties' net incomes for child support.


Headnotes

[1] The imputation of income for child support purposes is within the trial court's discretion and will be affirmed if supported by competent, substantial evidence.

[2] A trial court abuses its discretion in imputing income if there is no competent, substantial evidence of the obligor's earning capacity or failure to test the job market.

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Key Quotes

“The imputation of income will be affirmed if supported by competent, substantial evidence.”

Establishes the standard of review for whether a trial court properly imputed income for child support calculation purposes.

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Facts & Procedural History

The parties were married eleven years and had one child. The original judgment awarded primary residential custody to the father and set the mother's …

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Opinion of the Court
EVANDER, J.

EVANDER, J.

Mariann Hudson-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 the marriage. In its original final judgment, the trial court awarded primary residential custody of the child to the father, ordered him to pay the former wife $1,200 per month alimony for one year, and set the former wife’s child support obligation at $589.48 per month. In calculating child support, the trial court imputed income of $2,000 per month to the former wife.

On appeal, this court affirmed the trial court’s designation of the father as the primary residential parent. However, we reversed the child support order, concluding that the imputed income amount was not supported by competent, substantial *737evidence. McCann, 8 So.3d at 1280. There was no evidence presented that the former wife had ever earned $2,000 per month, nor was there any evidence presented regarding the prevailing wages in the community for someone with the former wife’s qualifications and background. Id.

On remand, the trial court did not conduct a new evidentiary hearing. Rather, the trial court entered an amended final judgment, lowering the child support obligation to $471.23 per month. The reduced child support amount was based on an imputation of $1,368.50 per month income to the former wife. Because the child had resided primarily with the mother during the pendency of the appeal and the remand proceedings, the trial court ordered child support payments to commence as soon as the child began to reside with the former husband. The same day the trial court entered the amended final judgment, an order was entered requiring transfer of primary residential care of the child to the father.

The decision whether to impute income in determining a child support obligation is within the trial court’s discretion and will not be reversed absent an abuse of discretion. Guard v. Guard, 993 So.2d 1086, 1089 (Fla. 5th DCA 2008). The imputation of income will be affirmed if supported by competent, substantial evidence. Id. In the instant case, the evidence presented during the original trial reflected that the former wife had worked many years during the marriage as a certified nursing assistant or a home-health aide. The amount of income imputed to the former wife, after remand, was consistent with the income she earned in 2005—the year in which the petition for dissolution was filed. Furthermore, there was competent, substantial evidence to support the trial court’s findings (made in the amended final judgment) that the former wife had recovered from certain medical conditions that had arisen subsequent to the filing of the petition for dissolution of marriage and that she had failed to test the job market after her recovery. We find no error in the determination of the amount of income to be imputed to the former wife.

However, the amended final judgment still contains an error in the calculation of child support. In determining the parties’ respective net incomes, the trial court improperly took into consideration the former husband’s $1,200 per month alimony obligation. This alimony obligation 1 was to terminate in August 2008-long before the entry of the amended final judgment. While the record before us suggests that the former husband has not fully .complied with his alimony obligation, any failure to do so should be remedied by an order establishing an arrearage and providing for payment of same. The former husband’s alimony obligation should not have been considered in setting a revised child support amount after our prior remand.

Finally, we find no error in the trial court’s denial of the former wife’s request for attorney’s fees incurred at the trial level.

REVERSED and REMANDED.

COHEN, J., and FLEMING, J.M., Associate Judge, concur.


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Citator

Cited By

  • Saario v. Tiller, 333 So. 3d 315 (Fla. 5th DCA 2022)
  • Jorgensen v. Tagarelli, 312 So. 3d 505 (Fla. 5th DCA 2020)
  • Heard v. Perales, 247 So. 3d 533 (Fla. 4th DCA 2018)
    …eattie v. Beattie, 536 So. 2d 1078, 1079 (Fla. 4th DCA 1988); accord Alcenat v. Alcenat, 989 So. 2d 738, 739 (Fla. 4th DCA 2008). “The imputation of income will be affirmed if supported by competent, substantial evidence.” Hudson-McCann v. McCann, 50 So. 3d 735, 737 (Fla. 5th DCA 2010). Here, there was evidence to support the court’s rejection of the mother’s contention that she was unable to work. She had worked for ten years with her claimed disabilities, and her applications for employment showed that…

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