Thоmas Joseph SMITH, Appellant, v. Julie Ann SMITH, Appellee.
No. 98-3798.
District Court of Appeal of Florida, First District.
August 3, 1999.
737 So. 2d 641
E. Jane Brehany, Pensacola, for Appellee.
BROWNING, J.
Thomas J. Smith, the former husband, appeals a final judgment dissolving his nearly 18-year marriage to Julie A. Smith. The former husband сontends that the trial court erred by imputing income to him “to the extent of his financial ability as it existed at the time of final hearing.” Because the awards for child support ($2,088 monthly), permanent alimony ($712 monthly), and attorney‘s fees and costs ($31,214.62) all were based partly on the lеvel of income imputed to the former husband, he seeks reversal of the provisions in the final judgment addressing these awards, and remand of the case for further proceedings. Finding no abuse of discretion in the lower tribunal‘s imputation of income, we affirm.
In a dissolution of mаrriage proceeding, each party‘s sources of income and ability to pay are factors to be considered in determining whether alimony, child support, or attorney‘s fees are appropriate, and if so, in what amounts. In the final judgment, the trial cоurt found that “[t]he only sources of income available to either party are their respective salaries, passive
The statute addressing child support guidelines mandates the imputatiоn of income under certain enumerated circumstances:
Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such unemployment or underemployment is found to be voluntary on that parent‘s part, absent 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; however, the court may refuse to impute income to a primary residential parent if the court finds it necessary for a parent to stay home with the child.
“It is error for a trial court to impute income to a supporting spouse without setting forth the amounts imputed and the sources of this income.” Wendroff v. Wendroff, 614 So. 2d 590, 595 (Fla. 1st DCA 1993); Cortez-Williams v. Douglass, 659 So. 2d 1250 (Fla. 1st DCA 1995); Wood v. Wood, 632 So. 2d 720 (Fla. 1st DCA 1994). During the marriage, the former husband was well-employed and, in 1987, he became a “master of thе vessel” (captain) in the Merchant Marine, which provided him with an average gross monthly income of $9,025.00. His federal income tax returns reflected his gross earnings of approximately $106,000 (1994); $120,000 (1995); $107,000 (1996); and $109,000 (1997). He was receiving a pay raise in 1998. The final judgment expressly states that the formеr husband‘s net monthly income was $6,702.00, or 77.96 per cent of the parties’ combined net monthly income
A trial court can impute income where a spouse has failed to use his or her best efforts to earn income. Edwards v. Sanders, 622 So. 2d 587 (Fla. 1st DCA 1993). A claim that a payor spouse has arranged his financial affairs or employment situation so as to shortchange the рayee spouse is a valid matter to be explored in determining the payor‘s real ability to pay. Gallant v. Gallant, 468 So. 2d 479 (Fla. 2d DCA 1985). When the obligor spouse voluntarily becomes unemployed or underemployed, the income that he or she is capable of earning may be imputed for purposes of determining an appropriate award of support. Kovar v. Kovar, 648 So. 2d 177 (Fla. 4th DCA 1994); Work v. Provine, 632 So. 2d 1119 (Fla. 1st DCA 1994); Maddux v. Maddux, 495 So. 2d 863 (Fla. 4th DCA 1986).
For instance, the husband in Maddux originally had earned up to $38,000 annually as a registered landscape architect. In the last two years, he voluntarily lowered his weekly salary from $500 to $200 because of “business difficulties.” He sаid he could earn $12,000 to $18,000 a year if he returned to work for a small developer or a large landscape architecture firm. He anticipated a weekly salary of $250 to $350, and perhaps more, but thought he would have a better chance if self-employed. The trial court found that Mr. Maddux had the expertise and skill to reestablish himself as a landscape architect able to support his child and to pay two years’ rehabilitative alimony. Affirming the award of child support and alimony in an amount constituting 108 per cent оf Mr. Maddux‘s claimed present income, the Fourth District Court stated:
Where a former husband has an ability to earn if he so desires, the trial judge may impute an income to the husband according to what he could earn by the use of his best efforts to gain employment equal to his capabilities, and on that basis enter an award of alimony as if the husband were in fact earning the income so imputed.
495 So. 2d at 864; Desilets v. Desilets, 377 So. 2d 761 (Fla. 2d DCA 1979).
The result in Maddux is very similar to the instant ruling. At the dissolution hearings, the former wife claimed that her husband‘s decision to leave the ship or to retire during the course of the dissolution proceedings was motivated primarily by his wish to reduce his financial obligations to her and to their children. At the first of two final hearings, the former husband testified that he had been on a rotation schedule of four months’ work followed by two months’ vacation. He indicated that this work schedule would not be in effect anymore because he was eligible for retirement, that he had mutually agreed with the former wife to retire so that he could return home as “Mr. Mom” to assist in the care of the parties’ children, and that he had already turned in his retirement papers. He acknowledged that he could return to his employment despite his announced decision to retire. He stated that he would go back to work if necessary to satisfy any court order to pay support and to avoid being held in contempt.
At the second final hearing, the former husband testified that he was retired and had come home to take care of the children. He indicated that his maritime employer
“[A]bsent physical or mental incapacity or other circumstances over which the parent has nо control,” unemployment or underemployment is voluntary.
Irrespective of whether the former wife did or did not originally agrеe to the former husband‘s plan to retire when he left the maritime industry, his unemployment at the time of the final hearing clearly was “voluntary” for purposes of imputing income. Either the parties mutually agreed that he would leave his prior position, or the former husband unilatеrally and volitionally terminated his job aboard a particular ship in order to come home to his family or to reduce his financial obligations. So long as the individual‘s recent work history and occupational qualifications, and the prevailing earnings level in the рertinent community, are properly taken into account, as they were in the case at bar, a trial court has discretion to impute income in the amount the person was earning before voluntarily reducing his or her income. Stelk v. Stelk, 699 So. 2d 811 (Fla. 1st DCA 1997); Kovar, 648 So. 2d at 178-79; Stodtko v. Stodtko, 636 So. 2d 814 (Fla. 3d DCA 1994); Work, 632 So. 2d at 1119. Cf. Robinson v. Robinson, 713 So. 2d 437, 438-39 (Fla. 2d DCA 1998) (where trial court imputed incоme based solely on former husband‘s prior salary, without considering his occupational qualifications or the prevailing earnings level in the community for a plumber with his qualifications, dissolution judgment was reversed and remanded for further findings).
In reviewing such discretionary matters, we shаll not disturb any ruling that is supported by the evidence and satisfies the general test of reasonableness. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980); Kovar, 648 So. 2d at 178. At the time of the final hearing, the former husband had a clearly established history of successive annual incomes exceeding $100,000 in the maritime industry. He does not suggest, nor does the record indicate, that his prior salary or his previous employment as a captain on a particular ship was unique or unusual. The
AFFIRMED.
ERVIN and VAN NORTWICK, JJ., CONCUR.