Thursday, December 3, 2015

Marital & Family Law: Difficulties in Imputation of Income

By Paul E. Riffel

        Four recent appellate cases make it clear that it is difficult to impute income to an unemployed or underemployed parent under section 61.30(2)(b), Florida Statutes. In each of the four cases, the appellate court reversed the trial court’s imputation of income. Thompson v. Malicki, 169 So. 3d 271, 272 (Fla. 2d DCA 2015); Dottaviano v. Dottaviano, 170 So. 3d 98, 99 (Fla. 5th DCA 2015); Heard v. Perales, 2015 WL 3609104, at *2 (Fla. 4th DCA June 10, 2015); Broga v. Broga, 166 So. 3d 183, 185-86 (Fla. 1st DCA 2015). How can you present a case for imputed income that will withstand appellate scrutiny?

        The child support statute provides a two-step analysis for imputing income. First, the court will impute income if it is determined that the parent’s underemployment or unemployment was voluntary, unless the court finds a "physical or mental incapacity or other circumstances over which the parent has no control.”§ 61.30(2)(b), Fla. Stat. (2015). Second, if the parent’s underemployment or unemployment is found to be voluntary, the court must move to the much more difficult step of calculating the amount of imputed income. The statute gives some guidance for this step: “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.” The appellate cases make it clear that detailed findings of fact are required in each area.

        Because of that, be advised that showing past work history and income alone is insufficient to impute income. Broga, 166 So. 3d at 185; Thompson, 169 So. 3d at 272. You must also prove the occupational qualifications of the parent and the prevailing earnings level in the community. The word “community” refers to the area where the parent currently lives, so evidence of jobs outside the area would not meet the statutory criteria. Broga, 166 So. 3d at 186. Also keep in mind that because section 61.30(2)(b)(1)(b) requires that due consideration be given to the parties’ time-sharing schedule, Id. at 187, requiring a parent to relocate for employment will not stand.

        When imputing income for purposes of child support, make sure that you do more than simply show a parent’s work history and income. You also need detailed findings of fact showing the following: (1) the occupational qualifications of the parent (this shows employability); and (2) the fact that there are jobs available in the local community (along with information about what those jobs pay). Providing detailed findings of these facts will help your case withstand appellate scrutiny.