KATHRYN CARLSON, APPELLANT,
v.
RYAN CARLSON, APPELLEE
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The court held that the magistrate erred in imputing gift income and a daycare discount to the wife without sufficient evidence and in failing to rule on a request for a daycare expense income deduction order.
[1] Voluntary underemployment can constitute a substantial change in circumstances warranting a modification in child support.
[2] Gift income may be imputed for child support purposes only if the gifts are continuing and ongoing, not sporadic, and the evidence shows they will continue in the future.
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Join FLexlaw to unlock all legal intelligenceFollowing dissolution, the wife appealed orders modifying child support, ratifying a magistrate's report, and denying her exceptions. The magistrate i…
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In this post-dissolution proceeding, the wife appeals the trial court’s orders granting in part the husband’s petition for modification of child support, ratifying a general magistrate’s report, and denying the wife’s exceptions to the report.1 We affirm in part and reverse in part.
We conclude, without further comment, that: (1) the magistrate did not abuse her discretion in concluding that the wife’s voluntary' underemployment was a substantial change in circumstances warranting a modification in child support; (2) the magistrate did not abuse her discretion in refusing to dismiss the husband’s petition under the “unclean hands” doctrine; (3) the magistrate’s delay in issuing her report does not warrant reversal; and (4) competent, substantial evidence supports the imputation of a $38,000 salary to the wife. We also affirm as to any other issues or sub-issues not specifically addressed in this opinion.
We find, however, that there was insufficient evidence to support the magistrate’s inclusion of gift income to the wife. Income may be “imputed based on gifts if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” Rogers v. Rogers, 824 So.2d 902, 903 (Fla. 3d DCA 2002); see also Vorcheimer v. Vorcheimer, 780 So.2d 1018, 1019 (Fla. 4th DCA 2001) (error to impute gift income “absent evidence that the payment would continue in the future”); Ordini v. Ordini, 701 So.2d 663, 666 (Fla. 4th DCA 1997) (“[T]he provisions of chapter 61 are broad enough to include regular gifts in determining income for purposes of child support.”).
Here, the magistrate imputed monthly gift income to the wife, consisting of the wife’s $1,594 mortgage payment, $69 air conditioning payment, and $173 car payment, all of which the magistrate found were paid by the wife’s family. However, *458we conclude there was insufficient evidence that the wife’s family would regularly pay the entire amount of these expenses, Moreover, the husband elicited no evidence that the wife’s family would continue to assist her with paying these expenses in the future. Accordingly, we reverse on this issue and remand for the trial court to exclude gifts from the wife’s income and to recalculate child support accordingly.
We also find that the magistrate should have ruled on the wife’s request to require daycare expenses to be paid through an income deduction order. This request was presented in the wife’s pleadings, in the joint pre-trial statement, and at the modification trial. The magistrate’s report, however, reflects that the magistrate never ruled on this issue. Additionally, in the wife’s exceptions to the magistrate’s report, the wife pointed out the magistrate’s failure to rule on this issue. Therefore, we reverse and remand for the trial court to address this request in the first instance. See Harbin v. Harbin, 762 So.2d 561, 563 (Fla. 5th DCA 2000) (the trial court erred in failing to rule on the former wife’s request for attorney’s fees where the request was made in her pleadings, in her pretrial statement, at the modification trial, and in a motion for rehearing).
The wife also correctly argues that the magistrate should have included child care costs in the child support calculation. See § 61.80(7), Fla. Stat. (2014) (“Child care costs incurred due to employment, job search, or education calculated to result in employment- or to enhance income of current employment of either parent shall be added to the basic obligation.”).
Additionally, the magistrate erred by including all of the $400-per-month daycare discount—a 50% discount that the wife receives by working at her child’s daycare facility—as income to the wife. Because the magistrate already imputed a full-time salary to the wife due to the magistrate’s finding that the wife was underemployed by working at a daycare facility, it logically follows that the daycare discount should not. have; been included in the wife’s income.2 We reverse and remand for the trial court to correct the error by eliminating the $400 discount from the wife’s income altogether.
- Finally, because we are reversing for a recalculation of the Wife’s income, the trial court should reconsider the issue of attorney’s fees. See, e.g., Bower v. Hansman, 161 So.3d 512, 512 (Fla. 5th DCA 2014) (“Because a redetermination of Bower’s net income will result in an increased disparity in the parties’ respective net incomes, the trial court is also directed to reconsider its denial of Bower’s request for attorney’s fees.”).
Affirmed in pari, Reversed in pari, and Remanded.
CIKLIN, C.J., and KLINGENSMITH, J., concur.
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Callwood v. Toleatha Callwood, 221 So. 3d 1198 (Fla. 4th DCA 2017)…a v. Garcia, 560 So. 2d 403, 404 (Fla. 3d DCA 1990). A party’s income may also include gift income “if the gifts are continuing and ongoing, not sporadic, and where the evidence shows that the gifts will continue in the future.” Carlson v. Carlson, 204 So. 3d 456, 457 (Fla. 4th DCA 2016) (citation and internal quotation marks omitted). Here, competent substantial evidence did not ■ support the trial. court’s [*1203] finding that the husband received additional income from his family, his girlfriend, or anot…
Authorities Cited
- Rogers v. Rogers, 824 So. 2d 902 (Fla. 3d DCA 2002)
- Ordini v. Ordini, 701 So. 2d 663 (Fla. 4th DCA 1997)
- Grisselle T. Harbin v. Harbin, 762 So. 2d 561 (Fla. 5th DCA 2000)
- Nazir Jamaloodeen v. Jamaloodeen, 780 So. 2d 1018 (Fla. 4th DCA 2001)
- Vorcheimer v. Vorcheimer, 780 So. 2d 1018 (Fla. 4th DCA 2001)
- Trista Anne Bower v. Hansman, 161 So. 3d 512 (Fla. 5th DCA 2014)