JACKIE R. CAMERON, HUSBAND, APPELLANT,
v.
CHRISTINE S. CAMERON, WIFE, APPELLEE

Fla. 1st DCA | 2015-01-23
No. 1D14-1161
ROBERTS, RAY, and MAKAR, JJ., concur.
154 So. 3d 1230 Florida District Court of Appeal, First District (2015)

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Synopsis

In a divorce case between two attorneys, the Florida First District Court of Appeal reversed the trial court's decision to delay imputing income to the former wife for six months, holding that no competent, substantial evidence supported the delay where the former wife's underemployment was voluntary rather than due to circumstances beyond her control.


Holding

The court held that no competent, substantial evidence supported delaying imputed income to the former wife for six months. Where a parent is underemployed, income must be imputed unless the lack of employment results from physical or mental incapacity or other circumstances beyond the parent's control, and the former wife's decision to serve as pro se counsel in her own divorce was a voluntary choice not falling within the statutory exceptions.


Headnotes

[1] A trial court's decision to impute income to a party in a dissolution of marriage proceeding must be supported by competent, substantial evidence.

[2] In Florida, a court is required to impute income to an underemployed parent unless the lack of employment is due to physical or mental incapacity or other circumstances b…

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Key Quotes

“Where a parent is underemployed, the court is required to impute income to that parent unless the lack of employment [is] the result of the parent's physical or mental incapacity or other circumstances beyond the parent's control.”

Statement of the legal standard governing income imputation in family law matters under Florida Statute § 61.30(2)(b).

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Facts & Procedural History

Both parties were attorneys married for just over 400 days and had one minor child. The former wife did not work during the marriage but worked for fo…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

The Former Husband appeals the final judgment dissolving his marriage. In part, he challenges the trial court’s ruling delaying imputed income to the Former Wife for six months. As to this issue, we agree with the Former Husband that no competent, substantial evidence exists to support the trial court’s decision. We reverse on this point and affirm without comment the remainder of the final judgment.

The former spouses, both attorneys, were married just over 400 days, and the marriage produced one minor child. As to the Former Wife’s income, while she did not work during the marriage, she worked during the divorce litigation for four months at an annual income of $70,000. The trial court accepted her testimony that she quit this employment because of professional concerns involving her employer, and determined that the termination was reasonable under the circumstances.

By the time of trial, the Former Wife had found part-time legal work as an attorney on a per-case basis, only getting paid when she made appearances in court or mediation. The trial court attributed the delay in her return to full-time employment to the extensive amount of time she devoted to representing herself in her divorce proceeding. In its final written judgment, the court concluded:

Considering the [Former Wife’s] history of employment, her earning potential, and the fact that she will have substantially more time available to work now that this dissolution proceeding is concluded, the Court finds the [Former Wife’s] income is going to increase, and after a period of six months, the Court imputes income to the [Former Wife] in the amount of $60,000.00 annually.

The Former Husband contends that the trial court’s decision to withhold imputed income to the Former Wife for six months is erroneous given the evidence that the Former Wife was voluntarily underemployed.

“In a dissolution of marriage proceeding, each party’s sources of income and ability to pay are factors to be considered in. determining whether alimony, child support, or attorney’s fees are appropriate, and if so, in what amounts.” Smith v. Smith, 737 So.2d 641, 642 (Fla. 1st DCA 1999). Where a parent is underemployed, the court is required to impute income to that parent unless the lack of employment *1232is the result of the parent’s physical or mental incapacity or other circumstances beyond the parent’s control. § 61.30(2)(b), Fla. Stat. (2011); Hentze v. Denys, 88 So.3d 307, 311 (Fla. 1st DCA 2012). The decision of whether to impute income must be supported by competent, substantial evidence. See Gray v. Gray, 103 So.3d 962, 966 (Fla. 1st DCA 2012).

Here, the record contains no evidence of involuntary únderemployment by the Former Wife for the relevant time period. To the extent that her underemployment was due to her status as a pro se litigant in her own divorce proceeding, there is no evidence that this decision was anything other than a voluntary one on her part, and one that was not due to “physical or mental incapacity or other circumstances” beyond her control. § 61.30(2)(b). Accordingly, we reverse on this point and remand with instructions to impute to the Former Wife income consistent with the guidelines set forth in section 61.30(2)(b), Florida Statutes, and to recalculate the Former Husband’s child support and alimony obligations as necessary.

AFFIRMED in part; REVERSED in part; REMANDED.

ROBERTS, RAY, and MAKAR, JJ., concur.


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