MEMORANDUM OF LAW

Facts:

In the initial 2011 trial, the court made findings of fact that the Former Wife quit her job to have a baby with her new husband.  The court found that this was voluntary unemployment.  She had made $80,000 in 2007 and $68,000 in 2008.  At the time of trial, she stated that her position was being eliminated, but no evidence was presented that she couldn’t still work for the company and make money. Trial court did not impute her income.  On appeal, the appellate court found that income should have been imputed to her and remanded the case for determination of the amount. At the hearing on remand, the court imputed $68,000 per year to the Former Wife.  The Wife has filed a Motion for Relief from Judgment and a Motion for Rehearing on the issue.

Issue:    Was imputing income based on 2008 earnings proper?

The Former Wife’s motion cited several cases regarding specific findings a trial court needs to make before imputing income to an unemployed or underemployed spouse.  These cases are all distinguishable from the case at hand because they were not before the trial court on remand after an appeal.  In this case the appellate court’s mandate stated,  “Accordingly, we must reverse on this point, and remand with instructions to impute to the former wife income consistent with the guidelines set out in section 61.30(2)(b).Young v. Taubman, 855 So. 2d 184, 186 (Fla. 4th DCA 2003) (reversing child support award and remanding so that trial court could recalculate the amount of support owed by each parent after imputing additional income to the former wife).”  Opinion at 9.  The purpose of imputing income is to require those who are able to do so to contribute to supporting their children. Freilich v. Freilich, 897 So. 2d 537, 540 (Fla. 5^th DCA 2005). The appellate court found the Former Wife was able to contribute to the support of her children. Thus, the Former Wife was not entitled to a de novo hearing on child support, but rather was limited to the record already established and findings consistent with the opinion of the First District Court of Appeals.

The trial court’s parameters on remand are set forth in the mandate from the First DCA.  It is proper for trial courts to rely on the same resources when a trial is before them on remand as they did at the original trial. Pinder v. Pinder, 911 So. 2d 870, 872 (Fla. 2^nd DCA 2005).  On remand, the trial court is instructed by the court of appeals on how they should have handled the original trial.  The original trial is essentially retried consistent with the district court’s opinion.  Thus, evidence that would have been appropriately entered at the original trial should be appropriate to enter in the remanded trial.  The Former Wife was imputed income at a level she earned in 2008.  Evidence of this income was within the statutory five year limitation period under Florida Statutes 61.30(2)(b)(2)(a)  at the time of the original trial in 2011. It would be inequitable to allow the passage of time due to an appeal to create a victory for the Former Wife.   If the Wife believes the child support should be modified based on her current circumstances, her proper recourse is to file a supplemental petition to modify child support.

The Former Wife also argues that trial court failed to make the requisite findings to impute herincome of $68,000.00 annually.  However, if the trial court does not include specific findings in the final judgment, the court’s decision can be supported by competent substantial evidence in the record.  Freilich v. Freilich 897 So. 2d 537, 543 (Fla 5^th DCA 2005); Griffin v. Griffin, 993 So. 2d 1066 (Fla. 1^st DCA 2008).  The Former Wife argues that she was imputed income based only on that being her last earned salary with Nationwide Money Services.  However, the  transcript from the original 2010 trial established that the Former Wife was a Regional Sales Manager who was capable of earning substantial sales commissions before she voluntarily left her job.  Transcript at 211, 229.  Sales skills are transferrable, and, by her own testimony, the Former Wife has failed to seek full time employment outside her current husband’s companies that would pay a salary equivalent to her prior earnings.  Further, the Former Wife’s employment history is not in an obscure field with few job opportunities.  Sales positions are always available, and they do not require advanced degrees.  The record contains competent substantial evidence on which the court based its decision to impute income to the Former Wife.

By Kenny Leigh