ALBERTO TORRES, APPELLANT,
v.
SHANNON D. TORRES, APPELLEE
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In this family law appeal, the Florida Second District Court of Appeal affirmed a divorce decree dissolving the marriage between Alberto and Shannon Torres, but reversed the trial court's imputation of income to the husband for child support arrears calculation because the magistrate's findings were insufficient under Florida law.
The trial court erred in adopting the magistrate's recommendation to impute income to the husband because the magistrate's findings were insufficient as a matter of law. The findings must reflect consideration of the party's recent work history, occupational qualifications, and prevailing earnings level in the community, supported by competent, substantial evidence.
[1] A trial court errs in confirming a general magistrate's report when the report contains plain errors on its face.
[2] Imputing income for child support requires specific findings regarding a party's recent work history, occupational qualifications, and prevailing local earnings for avail…
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Join FLexlaw to unlock all legal intelligence“[M]ere allegations of employability do not constitute competent, substantial evidence for imputing income.”
Establishes the legal standard that bare assertions of ability to work are insufficient; courts must have competent, substantial evidence of actual income imputation potential.
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Join FLexlaw to unlock all legal intelligenceAlberto Torres was employed for approximately fourteen years and earned at least $50,000 annually according to his November 2008 financial affidavit. …
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Alberto Torres appeals the order denying his exceptions and adopting the magistrate’s recommended final judgment of dissolution of his marriage to Shannon Torres. We affirm in part and reverse in part.
The Husband raises several issues on appeal, but we only find merit in his argument that the trial court erred in imputing income to him for the computation of child support arrears without providing adequate supporting findings. Although the Husband did not raise this issue in his exceptions to the magistrate’s recom*1172mended final judgment, the error is plain on the face of the magistrate’s report. Consequently, the trial court erred in confirming that report. See French v. French, 12 So.3d 278, 280 (Fla. 5th DCA 2009) (“Because the errors in the general magistrate’s findings of fact ... were clear on the face of its report, the trial court erred in confirming the report.”).
The magistrate found that the Husband is physically able to work and that he willfully terminated his employment and moved to Mexico. The magistrate concluded that the Husband is capable of earning the same amount that is reflected on his November 2008 financial affidavit filed while he was employed at the job he had for approximately fourteen years. This was the extent of the magistrate’s findings in support of the imputation of income to the Husband.
“[Mjere allegations of employability do not constitute competent, substantial evidence for imputing income.” Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005).
[Sjection 61.30(2)(b) requires a court to consider the party’s recent work history, occupational qualifications, and the prevailing level of earnings in the community for the appropriate class of available jobs. If the trial court does not make the required findings, the record must reveal competent, substantial evidence supporting the trial court’s decision.
Id. at 268 (citations omitted); see also Roth v. Roth, 973 So.2d 580, 590 (Fla. 2d DCA 2008).
The Wife, as the party asserting that the Husband was voluntarily unemployed and that income should be imputed to him, had the burden of proof. Burkley, 911 So.2d at 268. But she merely testified that it was possible that the Husband could work for his previous employer again and he had been paid at least $50,000 by that employer before he quit. The Husband testified upon questioning by the Wife that he had worked his way up from laborer to supervisor before he left his job due to depression.
Because it is clear on the face of the magistrate’s recommended final judgment that his findings were insufficient to support the imputation of income to the Husband, the trial court erred in adopting that judgment. Accordingly, we affirm the final judgment of dissolution in all respects except regarding the imputation of income to the Husband. We reverse and remand for further proceedings at which the Wife may present additional evidence on this issue if she so desires. See Roth, 973 So.2d at 591.
Affirmed in part, reversed in part, and remanded.
KHOUZAM and BLACK, JJ., Concur.
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Eroga v. Eroga, 166 So. 3d 183 (Fla. 1st DCA 2015)…st DCA 2008). Here, while there is no dispute concerning the former husband’s past work history, reliance on this factor alone is insufficient to impute income. Freilich v. Freilich, 897 So. 2d 537, 544 (Fla. 5th [*186] DCA 2005); Torres v. Torres, 98 So. 3d 1171, 1172 (Fla. 2d DCA 2011). The evidence of (1) the former husband’s occupational qualifications and (2) the prevailing earning level in the community is somewhat sparse and conflicting. Without these factual findings, we do not know how the trial cou…
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Cash v. Cash, 122 So. 3d 430 (Fla. 2d DCA 2013)…ed income.” Bator v. Osborne, 983 So. 2d 1198, 1200 (Fla. 2d DCA 2008). The former husband had the burden of proof as the party asserting that the former wife was voluntarily unemployed and that income should be imputed to her. See Torres v. Torres, 98 So. 3d 1171, 1172 (Fla. 2d DCA 2011). “The decision to impute income and the determination of the amount of income to be imputed must be based on competent, substantial evidence presented at an evidentiary hearing.” Roth v. Roth, 973 So. 2d 580, 590 (Fla. 2d DC…
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Mills v. Johnson, 147 So. 3d 1023 (Fla. 2d DCA 2014)…disputed that the Former Husband failed to raise this issue in his exceptions to the magistrate’s report. Nonetheless, if the errors in the magistrate’s report are clear on its face, the trial court errs in adopting the report. See Torres v. Torres, 98 So. 3d 1171, 1171-72 (Fla. 2d DCA 2011). Such is the case here. Cf Crittenden v. Davis, 89 So. 3d 1098, 1101 (Fla. 4th DCA 2012) (“ ‘[W]here visitation is ordered, the non-custodial parent’s right to the child on rotating holidays has become so routine and nece…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Roth v. Roth, 973 So. 2d 580 (Fla. 2d DCA 2008)
- Burkley v. Burkley, 911 So. 2d 262 (Fla. 5th DCA 2005)
- French v. French, 12 So. 3d 278 (Fla. 5th DCA 2009)