Posted by Nydia Streets of Streets Law in Florida Divorce
When a party seeks to impute income to the other party in a Florida divorce, the court must consider relevant factors such as the party’s work history and realistic earning capacity. In the case Tutt v. Hudson, 2D19-1437 (Fla. 2d DCA June 24, 2020), the former husband appealed an order which imputed income of $500.00 per day to him.
The trial court imputed $500.00 per day or $125,000.00 per year to the former husband for retroactive support and child support going forward. The evidence showed the former husband was a stay-at-home parent, and the former wife worked as a physician. During the last year of the parties’ marriage, the former husband obtained his real estate license. After the divorce, he began driving for Uber and Lyft. The former husband testified that he hoped to open his own limousine business and estimated that he could earn $500.00 per day in this business. The former wife’s vocational expert opined that the former husband was underemployed and that he could earn in excess of $125,000 per year with his real estate license and his efforts to drive for Lyft and Uber. The trial court imputed income to the former husband of $500 per day based on his testimony of his estimated earnings from a limousine business, despite the former husband’s objection that he hoped to make that amount and he needed start up funds to begin this business. The former husband appealed.
The appellate court found there was insufficient evidence to support the imputation of income to the former husband. The court held “The former husband thought he could earn $500 per day, but it was clear he was referring to an indefinite, future point in time, after he had networked, built his business, and obtained ‘start-up cash.’ The former husband had never earned more than $60,000 per year, and although he had spent the last two years (2016 to 2018) networking in the area, there was no evidence that he could have earned $125,000 in 2017 operating a limousine or driving business.” The court further held “In further support of its ruling, the trial court noted the expert's testimony that the former husband could earn a higher salary as a realtor. But the expert testified that the former husband was capable of earning $109,000 in 2019 and $143,000 in 2020; thus, her testimony does not support the trial court's imputation of income in the amount of $125,000 for 2017. While the former husband may have been voluntarily underemployed in 2017 and may have been capable of earning more than $38,000 per year, there is no competent, substantial evidence to support a finding that he could have earned $125,000 per year starting in 2017.”
Turning to the issue of attorneys’ fees which was also appealed by the former husband, the appellate court examined the basis for the court’s order that the former husband be responsible for the former wife’s attorneys’ fees and costs based on his “contentiousness”. The court held “Where a trial court intends the fee award to be a sanction for a party's actions, the fee order must contain sufficient findings to support the trial court's decision. [. . .] Here, the trial court found that the former wife should pay the former husband's fees but then limited those fees based on the former husband's ‘contentiousness, which did make litigation longer and more difficult.’ However, the trial court did not make any findings, at the hearing or in its order, explaining what portion of the former husband's fees were occasioned by his misconduct. Accordingly, we must reverse on this issue.”
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