JOHN L. PICCININI

v.

JESSICA A. WAXER

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

JOHN L. PICCININI,

Appellant,

v. Case No. 5D20-528

JESSICA A. WAXER,

Appellee.

________________________________/

Opinion filed May 14, 2021

Appeal from the Circuit Court for Orange County, Donald A. Myers, Jr., Judge.

Elizabeth Siano Harris, of Harris Appellate Law Office, Mims, for Appellant.

Shannon L. Akins, of Law Office of Shannon L. Akins, P.A., Orlando, and David T. Roberts, of The Roberts Family Law Firm, P.A., Orlando, for Appellee.

LAMBERT, J.

2

John L. Piccinini (“Father”) appeals the amended final judgment of paternity entered following trial regarding the then-two-year-old son he has with Jessica A. Waxer (“Mother”). Father raises seven issues here for reversal. His first argument is that the judgment must be reversed because of the combined effect of the trial court’s allegedly-unreasonable delay in entering the judgment and the alleged errors in the court’s factual findings that Father contends are not supported by the record. We affirm, without further discussion, on this issue, as well as on Father’s second and third arguments that the trial court erred in awarding Mother sole parental responsibility of the minor child and also in allowing her to relocate with the child from Orlando to Jacksonville.

Father next argues that the trial court reversibly erred when it awarded him only supervised timesharing with the minor child. Based upon the evidence presented at trial and in consideration of the broad discretion given to trial courts in formulating a timesharing plan, see Schwieterman v. Schwieterman, 114 So. 3d 984, 987 (Fla. 5th DCA 2012), we conclude that the trial court did not abuse its discretion in ordering the supervised timesharing.

Father’s fifth argument is that the court erred in failing to set forth in its amended final judgment the specific steps that he needs to take to be able

Father next argues that the trial court erred regarding his award of holiday timesharing with his son. On this point, we agree. The amended judgment merely provides that “if the father should want time with the minor child during any specific holiday, the father shall obtain the consent of the mother at least two (2) weeks in advance of the holiday.” We see this

1 We note that the parties’ child is now five years old. Whether the present circumstances of the parties and child have sufficiently changed over the ensuing years to support Father having additional or unsupervised timesharing with the minor child would be a matter to be first brought back before the trial court upon the filing of a proper petition for modification to allow the court to assess the evidence under the “applicable statutory requirements.” See C.N., 291 So. 3d at 207–08.

Lastly, Father contends that the trial court erred in imputing income to him at a level greater than his current income and thereafter using the imputed income figure when determining both his current and retroactive child support obligations. Father is correct. The trial evidence showed that one week before the minor child was born, Father voluntarily left a job at which he was earning $68,378.91 per year. Five days after the child’s birth, Father filed the instant paternity action. Trial was held in this case approximately twenty-six months later. At that time, Father was working in a business owned by his parents earning an annual salary of $30,000. In calculating Father’s child support obligation, the trial court imputed income to Father at his aforementioned greater income. In doing so, the

To properly impute income to an unemployed or underemployed spouse or parent under section 61.30(2)(b), Florida Statutes (2018), our court has held that a trial court must first find that “any ‘termination of income was voluntary’; and second, that the spouse’s underemployment was owing to ‘less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’” Frerking v. Stacy, 266 So. 3d 273, 276 (Fla. 5th DCA 2019) (quoting Schram v. Schram, 932 So. 2d 245, 249–50 (Fla. 4th DCA 2005)).

The trial court here essentially determined that Father was underemployed at his $30,000-per-year job. While the trial evidence supported the required finding made by the court as to the first prong for

2 Father was convicted of two felonies related to the injury and later death of the family dog. He served a fifty-one week jail sentence that was followed by community control and then probation. However, Father had left his prior, higher-paying job several months before being arrested on these felonies, and he had finished serving his jail sentence approximately fifteen months before the instant paternity trial.

3 See Frerking, 266 So. 3d at 276 (“The burden of proving underemployment rests with the party moving for imputation.” (citing Andrews v. Andrews, 867 So. 2d 476, 478 n.2 (Fla. 5th DCA 2004))).

AFFIRMED, in part; REVERSED, in part; REMANDED for further proceedings consistent with this opinion.

WALLIS and EDWARDS, JJ., concur.