CINDY L. DOTTAVIANO, APPELLANT,
v.
MICHAEL A. DOTTAVIANO, APPELLEE
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On remand from a prior appeal, the Florida District Court of Appeal reversed the trial court's decision to impute income to the ex-wife in a divorce case, finding insufficient competent evidence to support the imputed amount. The court also found error in the calculation of the wife's monthly need and her equity share in the marital home, requiring recalculation on remand.
The trial court erred in imputing income to Cindy without substantial, competent evidence supporting the imputed amount. The trial court also erred in rejecting certain monthly expenses without explanation when computing her need. Additionally, the trial court erred in calculating her equity share based on prior assumptions rather than the actual selling price of the home.
[1] A trial court may impute income to a party only if there is competent, substantial evidence supporting the determination that the party could earn the imputed amount.
[2] A trial court must include a party's claimed expenses in computing their monthly need unless it provides a specific explanation for their exclusion.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“While a court may impute income to a spouse earning less than she could with the use of her best efforts, there must be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount.”
Establishes the legal standard requiring competent, substantial evidence for income imputation in alimony and child support calculations.
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Join FLexlaw to unlock all legal intelligenceCindy L. Dottaviano and Michael A. Dottaviano were parties to a divorce. The trial court imputed income to Cindy, finding her underemployed, and calcu…
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We remanded this cause to the trial court to reconsider the imputation of income to Appellant, alimony, and child support, as well as for partition of the marital home. Dottaviano v. Dottaviano, 170 So.3d 98 (Fla. 5th DCA 2015). Upon remand, the trial court again imputed income to Appellant; albeit in a slightly smaller amount. Appellant once again challenges this conclusion. We agree with Appellant that the trial court erred in imputing income to her. We also conclude that the trial court erred in calculating Appellant’s monthly need and in setting her equity share in the former marital home.
Pursuant to section 61.30(2)(b), Florida Statutes, once a trial court finds a party is underemployed, it must consider the party’s “employment potential and probable earnings level” based on “recent work history, occupational qualifications, and prevailing earnings level in the community if such information is - ayailable.” While a court may impute income to a spouse earning less than she could with the use of her best .efforts, there must be competent, substantial evidence supporting the determination that the spouse could earn the imputed amount. LaFlam v. LaFlam, 854 So.2d 809, 810 (Fla. 2d DCA 2003). The trial court’s imputation of income in this case was not supported by substantial, competent evidence. Accordingly, on remand, the trial court shall recalculate alimony and child support without imputing any income to Appellant.
In addition, the trial court erred, in rejecting some ,of Appellant’s monthly expenses in computing. her need. Without explanation, the trial court omitted the amounts Appellant listed for payments on her car, entertainment for her and the children, club dues and memberships, monthly gifts, religious contributions, education expenses, and tax liability on alimony. Conversely, the court allowed similar expenses for Appellee in computing his net income. On remand, the trial court shall re-compute Appellant’s monthly need, including these expenses, unless it provides a specific explanation for their exclusion.
Lastly, although the trial court complied with our instruction to order the partition of the marital home, it determined Appellant’s share of the equity based upon the assumptions made under its prior order granting Appellee possession of the home. On remand, the trial court shall compute Appellant’s equity share based upon the home’s actual selling price.
REVERSED AND REMANDED.
TORPY, EVANDER and WALLIS, JJ., concur.
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Citator
Authorities Cited
- LaFLAM v. LaFLAM, 854 So. 2d 809 (Fla. 2d DCA 2003)
- Dottaviano v. Dottaviano, 170 So. 3d 98 (Fla. 5th DCA 2015)