MEMO TO:
Alexsei Demo US
RESEARCH ID:
#40008790fbfb91
JURISDICTION:
State
STATE/FORUM:
Florida, United States of America
ANSWERED ON:
October 25, 2022
CLASSIFICATION:
Family law

Issue:

Under what circumstances will a court impute income to a custodial parent when determining child support?

Conclusion:

Fla. Stat. § 61.30(2)(b) provides that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. However, a court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation. (Fla. Stat. § 61.30 (2022), Meighen v. Meighen, 813 So. 2d 173, 2002 Fla. App. LEXIS 3587, 27 Fla. L. Weekly D 641 (Fla. Dist. Ct. App. 2d Dist. March 20, 2002))

In Mitchell v. Mitchell, 841 So.2d 564 (Fla. App. 2003), the husband argued that the court erred in failing to impute income to the wife. The Florida Second District Court of Appeal explained that, despite the fact that a court may refuse to impute income to a primary residential parent under Fla. Stat. § 61.30(2)(b) if it finds that it is necessary for the parent to stay home with the children, now that the children were school-aged, the wife's perceived ability to bill merely ten hours weekly was no longer justified. Accordingly, the Court held that the wife must exercise her best efforts to work and bill additional hours while maintaining the flexibility that she needed as the primary residential parent. The Court of Appeal remanded the case and directed the trial court to carefully examine the wife's situation to determine whether she continued to be voluntarily underemployed and whether her underemployment was justified under section 61.30(2)(b). The Court of Appeal ordered the trial court to impute income to her if her underemployment was not justified.

In Young v. Taubman, 855 So.2d 184 (Fla. App. 2003), the former wife was employed part-time. She argued that part-time employment was necessitated by the demands of the modelling/acting career of the couple's daughter. The Florida Fourth District Court of Appeal held that even if the court had determined that the former wife could not work full-time due to the child's career, the wife could certainly work more than the 34 hours per month that she was working since the child was attending school. Accordingly, the Court of Appeal reversed the child support award and remanded the matter for the trial court to recalculate the amount of support owed by each parent after imputing additional income to the former wife.

In Garone v. Goller, 878 So. 2d 430, 2004 Fla. App. LEXIS 9972, 29 Fla. L. Weekly D 1583 (Fla. Dist. Ct. App. 3d Dist. July 7, 2004), the trial court found that the former wife was underemployed, that she chose to continue to remain underemployed, and that she had the ability to earn more income. However, the record failed to show that the court imputed income to the former wife. The Florida Third District Court of Appeal reversed and remanded the case back to the trial court and directed the trial court to determine whether the record supported imputing income to the former wife considering the parties' settlement agreement, which envisioned that the former wife would work part-time during the children's minority.

Law:

Fla. Stat. § 61.30(2)(b) provides that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. However, a court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation:

§ 61.30. Child support guidelines; retroactive child support

[...]

(2) Income shall be determined on a monthly basis for each parent as follows:

(a) Gross income shall include, but is not limited to, the following:

1. Salary or wages.

2. Bonuses, commissions, allowances, overtime, tips, and other similar payments.

3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts. “Business income” means gross receipts minus ordinary and necessary expenses required to produce income.

4. Disability benefits.

5. All workers’ compensation benefits and settlements.

6. Reemployment assistance or unemployment compensation.

7. Pension, retirement, or annuity payments.

8. Social security benefits.

9. Spousal support received from a previous marriage or court ordered in the marriage before the court.

10. Interest and dividends.

11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income.

12. Income from royalties, trusts, or estates.

13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses.

14. Gains derived from dealings in property, unless the gain is nonrecurring.

(b) Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. If the information concerning a parent’s income is unavailable, a parent fails to participate in a child support proceeding, or a parent fails to supply adequate financial information in a child support proceeding, income shall be automatically imputed to the parent and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census. However, the court may refuse to impute income to a parent if the court finds it necessary for that parent to stay home with the child who is the subject of a child support calculation or as set forth below: 1. In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census, the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

2. Except as set forth in subparagraph 1., income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

(c) Except for incarceration for willful nonpayment of child support or for an offense against a child or person who is owed child support, incarceration may not be treated as voluntary unemployment in establishing or modifying a support order. However, the court may deviate from the child support guideline amount as provided in paragraph (1)(a).

(d) Social security benefits received by a minor child due to the retirement or disability of the child’s parent shall be included in the parent’s gross income.

(e) Public assistance as defined in s. 409.2554 shall be excluded from gross income.

In Meighen v. Meighen, 813 So. 2d 173, 2002 Fla. App. LEXIS 3587, 27 Fla. L. Weekly D 641 (Fla. Dist. Ct. App. 2d Dist. March 20, 2002), the Florida Second District Court of Appeal noted that Fla. Stat. § 61.30(2)(b) provides that income shall be imputed to an unemployed parent if the trial court determines that the unemployment is voluntary. However, section 61.03(2)(b) gives the trial court discretion to refuse to impute income to a voluntarily unemployed parent if that parent is the primary custodial parent and the court finds it necessary for that parent to stay at home (at 175-176):

The wife next contends that the trial court abused its discretion when it imputed income to her. HN3 Section 61.30(2)(b) provides that income "shall" be imputed to an unemployed parent if the trial court determines that the unemployment is voluntary. Although the final judgment contains no [*176]  such determination, the trial judge's comments at the final hearing indicate that he had concluded that the wife was voluntarily unemployed. Section 61.03(2)(b) gives the trial court discretion to refuse to impute income to a voluntarily unemployed parent if that parent is the primary custodial parent and the court finds it necessary for that parent to stay at home.

In Department of Revenue ex rel. Young v. Sumblin, 675 So. 2d 691, 1996 Fla. App. LEXIS 6661, 21 Fla. L. Weekly D 1500 (Fla. Dist. Ct. App. 1st Dist. June 25, 1996), the Florida First District Court of Appeal reversed and remanded the case back to the trial court after concluding that the trial court should have determined whether it was appropriate to impute income to the primary residential parent. In doing so, the trial court should have considered whether it was necessary for the primary residential parent to be at home with the child (at 692-693):

HN1 The child support guidelines are applicable to modification proceedings. See State, Department of Health and Rehabilitative Services v. Norman, 646 So. 2d 846 (Fla. 1st DCA 1994)Jones v. Jones, 636 So. 2d 867 (Fla. 4th DCA 1994). The guidelines may provide the basis for finding a substantial change in circumstances, and the guidelines amount is presumptively the amount the trier of fact shall order in either an initial or modification proceeding.  [**3]  See §§ 61.30(1)(a)61.30(1)(b), Fla.Stat.Matthews v. Matthews, 21 Fla. Law W. D1010 (Fla. 1st DCA, April 23, 1996)HN2 The existence of a settlement agreement does not result in the placement of a heavier burden of proof on the party moving for modification, at least not when an increase is sought. See Section 61.14(7), Fla.Stat.Matthews.

Rather than simply denying modification, the trial court should have determined whether it was appropriate to impute income to Young. In doing so, the trial court should have considered whether it was necessary for Young, as the primary residential parent, to be at home with the child, see section 61.30(2)(b). Apparently the trial court did  [*693]  not do so, as there are no specific findings on that issue. See Harrison v. Harrison, 573 So. 2d 1018 (Fla. 1st DCA 1991). If the court finds it appropriate to impute income, it should then calculate the respective guidelines obligations based on the imputed income.

In Mitchell v. Mitchell, 841 So.2d 564 (Fla. App. 2003), the husband argued that the court erred in failing to impute income to the wife. The Florida Second District Court of Appeal explained that, despite the fact that a court may refuse to impute income to a primary residential parent under Fla. Stat. § 61.30(2)(b) if it finds that it is necessary for the parent to stay home with the children, now that the children were school-age, the wife's perceived ability to bill merely ten hours weekly was no longer justified. Accordingly, the Court held that the wife must exercise her best efforts to work and bill additional hours while maintaining the flexibility that she needed as the primary residential parent. The Court of Appeal remanded the case and directed the trial court to carefully examine the wife's situation to determine whether she continued to be voluntarily underemployed and whether her underemployment was justified under section 61.30(2)(b). The Court of Appeal ordered the trial court to comply with the statute by imputing income to her if her underemployment was not justified (at 569-570):

Mr. Mitchell maintains that the court understated Ms. Mitchell's income and erred in failing to impute income to her. The court found that Ms. Mitchell was physically and emotionally able to work full time. Since the youngest child was born, however, she had been working only part-time. While the divorce was pending, she returned to school to become a legal nurse consultant, a position that she is able to perform from her home. At the time of the divorce she was billing only about ten hours a week at $50 per hour. She also earned about $300 monthly in a nursing position she kept to maintain her skills. Her 1999 gross income was $21,607, but she reported monthly income in 2000 that would produce an annual income of $27,312, and testified that she was

[841 So.2d 570]

attempting to obtain additional contract work from other law firms. At the time of the dissolution the parties' youngest child was not yet six years of age, but all of the children have now reached school age and presumably are enrolled in school.
Notwithstanding that Ms. Mitchell's income was rising at the time of the final hearing in 2000, the circuit court used her outdated 1999 gross income figure. This was error. See Hanley v. Hanley, 734 So.2d 529 (Fla. 4th DCA 1999).

Further, section 61.30(2)(b) requires the court to impute income to a voluntarily underemployed parent, although it may refuse to impute income to a primary residential parent if it finds that it is necessary for the parent to stay home with the children. Now that the children are school-age, Ms. Mitchell's perceived ability to bill merely ten hours weekly is no longer justified. If she were to bill just twenty hours a week, her gross income would exceed $50,000. "[P]ublic policy favors imposing on parents an obligation to contribute to the child's support." Williams v. Beagle ex rel. Beagle, 777 So.2d 1213, 1214 (Fla. 5th DCA 2001). Accordingly, Ms. Mitchell must exercise her best efforts to work and bill additional hours while maintaining the flexibility that she needs as the primary residential parent. On remand, the court shall carefully examine Ms. Mitchell's situation to determine whether she continues to be voluntarily underemployed. If so, and if her underemployment is not justified under section 61.30(2)(b), the court shall comply with the statute by imputing income to her.

In Young v. Taubman, 855 So.2d 184 (Fla. App. 2003), the former wife was employed part-time. She argued that part-time employment was necessitated by the demands of the modeling/acting career of the couple's daughter. The Florida Fourth District Court of Appeal held that even if the court had determined that the former wife could not work full-time due to the child's career, the wife could certainly work more than the 34 hours per month that she was working since the child was attending school. Accordingly, the Court of Appeal reversed the child support award and remanded the matter for the trial court to recalculate the amount of support owed by each parent after imputing additional income to the former wife (at 185-186):

The former husband challenges the upward modification of his child support obligation on a number of grounds. We find merit in his claim that the trial judge erred in failing to impute income to the former wife and reverse the upward modification of the former husband's child support obligation on this basis.

With respect to the former wife's income and ability to earn, the evidence before the lower court was that Melinda Taubman holds a bachelor's degree in sociology and was employed as a social worker briefly while residing in New York in 1984. According to the former wife, without a master's degree she is not qualified to do social work in Florida. Since residing in Florida, the former wife has held a number of jobs, most of which were part-time: she was a partner in a modeling agency; she obtained a real estate license; she worked at her daughter's school; and she worked as a marketing representative with the Boca Raton Museum of Cartoon Art. As for her current income, the former wife testified that she was employed part-time. According

[855 So.2d 186]

to the former wife, part-time employment is necessitated by the demands of their daughter's career. The former wife's financial affidavit reflects that she is employed by American Greeting Cards, earns $7.05 per hour, and has gross monthly earnings of $240.00. Additionally, since the former wife and the child were residing with the former wife's parents, she also included $1200 in income to represent the rent and utilities paid on their behalf. On this evidence, the trial court refused to impute income to the former wife.

Section 61.30(2)(b), Florida Statutes, governs the imputation of income to an unemployed or underemployed spouse and requires imputation of income to a voluntarily unemployed or underemployed parent unless the parent suffers from a "physical or mental incapacity or other circumstance over which the parent has no control" or the court finds that it is necessary for the primary residential parent to stay home with the child. See also Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999); Stebbins v. Stebbins, 754 So.2d 903, 905 (Fla. 1st DCA 2000). As to the first of the exceptions to the imputation of income, there was no evidence that the former wife is incapacitated in any way. As to the latter, the trial court never made any finding that it was necessary for the former wife to stay home with the child. Moreover, even if the court had determined that the former wife could not work full-time due to the child's modeling/acting career, certainly she could work more than thirty-four hours per month or an average of 8.5 hours per week ($240.00 divided by $7.05 per hour) since the record established that the child was attending school. Accordingly, we reverse the child support award and remand so that the trial court may recalculate the amount of support owed by each parent after imputing additional income to the former wife.1

In Garone v. Goller, 878 So. 2d 430, 2004 Fla. App. LEXIS 9972, 29 Fla. L. Weekly D 1583 (Fla. Dist. Ct. App. 3d Dist. July 7, 2004), the trial court found that the former wife was underemployed, that she chose to continue to remain underemployed, and that she had the ability to earn more income. However, the record failed to show that the court imputed income to the former wife. The Florida Third District Court of Appeal reversed and remanded the case back to the trial court and directed the trial court to determine whether the record supported imputing income to the former wife considering the parties' settlement agreement, which envisioned that the former wife would work part-time during the children's minority (at 432):

 [*432]  In State Department of Revenue by and on Behalf of Young v. Sumblin, the Court found that the denial of [**6]  a request for modification of child support by a custodial parent, based upon a finding of underemployment of the custodial parent, was error. The Court held that the trial court should have determined whether it was appropriate to impute income to custodial parent. Id. at 692.

In the instant case, the trial court found that the former wife was underemployed, that she chose to continue to remain underemployed and that she had the ability to earn more income. However, the Record fails to show that the court imputed income to the former wife. Instead, it appears that the court simply denied the former wife's Petition for Modification of Support without considering the support guidelines as required by section 61.14, Florida Statutes. Accordingly, the Order on review must be reversed and remanded for the trial court to determine whether the Record supports imputing income to the former wife, 1 considering the parties' Settlement Agreement which envisions that the former wife will work part-time during the children's minority, and for a determination of the merits of modification pursuant to the support guidelines.

Authorities:
Fla. Stat. § 61.30 (2022)
Meighen v. Meighen, 813 So. 2d 173, 2002 Fla. App. LEXIS 3587, 27 Fla. L. Weekly D 641 (Fla. Dist. Ct. App. 2d Dist. March 20, 2002)
Department of Revenue ex rel. Young v. Sumblin, 675 So. 2d 691, 1996 Fla. App. LEXIS 6661, 21 Fla. L. Weekly D 1500 (Fla. Dist. Ct. App. 1st Dist. June 25, 1996)
Mitchell v. Mitchell, 841 So.2d 564 (Fla. App. 2003)
Young v. Taubman, 855 So.2d 184 (Fla. App. 2003)
Garone v. Goller, 878 So. 2d 430, 2004 Fla. App. LEXIS 9972, 29 Fla. L. Weekly D 1583 (Fla. Dist. Ct. App. 3d Dist. July 7, 2004)