ANDREA K. GILLETTE n/k/a ANDREA ECONOMUS v. JOSEPH GILLETTE

226 So. 3d 958, 2017 WL 3888760, 2017 Fla. App. LEXIS 12918
CourtDistrict Court of Appeal of Florida
DecidedSeptember 6, 2017
Docket4D16-1010
StatusPublished
Cited by4 cases

This text of 226 So. 3d 958 (ANDREA K. GILLETTE n/k/a ANDREA ECONOMUS v. JOSEPH GILLETTE) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ANDREA K. GILLETTE n/k/a ANDREA ECONOMUS v. JOSEPH GILLETTE, 226 So. 3d 958, 2017 WL 3888760, 2017 Fla. App. LEXIS 12918 (Fla. Ct. App. 2017).

Opinion

Kuntz, J.

The Former Wife appeals the circuit court’s final judgment of dissolution of marriage. We address three of the issues raised by the Former Wife in this opinion *960 and affirm the remaining issues raised on appeal -without further discussion.

First, we hold that the court did not abuse its discretion when it concluded the Former Husband was not voluntarily underemployed. Second, we affirm in part and reverse in part the court’s calculation of the Former Wife’s child support obligation. Third, we reverse the court’s conclusion that the Former Husband’s IRA was a non-marital asset.

Background

After twelve years of marriage, the Former Husband filed a petition for dissolution of marriage and sought sole parental responsibility and to be designated the primary residential parent of the parties’ only child. After a three-day trial, the court issued a twenty-five page Final Judgment of Dissolution of Marriage.

The court found that the Former Wife had a bachelor’s degree in communications from Loyola Marymount University in Los Angeles, California, and the Former Husband had a master’s degree in mechanical engineering from the University of Florida in Gainesville, Florida.

Prior to the marriage, both parties worked outside the home. The Former Wife quit her job in 2001, and remained unemployed until the petition for dissolution was filed. The Former Husband was employed as an engineer working with cellular phone technology at a technology company, earning approximately $90,000 per year until 2004. The court found that the Former Husband’s “experience is with cellular phone technology as it existed in 2004—which was before the release of the first iPhone and the other smart phones that are popular today,”

In 2001, with the encouragement of the Former Wife, the Former Husband started a cloud computing storage business, Shadow Storage. He operated Shadow Storage simultaneously with his employment at the technology company until 2004. The court found that “the parties mutually decided in 2004, that the [Former] Husband would resign from [the technology company] where he worked with cellular phones to devote himself full-time to working with Shadow Storage, Inc., the family business, as well as raise the parties’ son.” Since 2004, the Former Husband has worked full-time for Shadow Storage.

The Former Husband testified that from the time he began working full-time at Shadow Storage until the filing of the petition, the Former Wife did not ask him to give up his work at Shadow Storage or demand that he find work outside the home. Importantly, for purposes of this appeal, the court found this testimony to be credible.-

While the Former Wife agreed to the Former Husband’s working at Shadow Storage during the marriage, her consent dissolved with the marriage. As a result, the Former Wife argued to the circuit court that the Former Husband is voluntarily underemployed. Although he testified that he works between forty and fifty hours per week at Shadow Storage, the highest amount of gross income he made in any year from the company was $13,000. The Former Wife presented a vocational expert who testified the Former Husband could be employed in various fields and earn significantly more than he earned at Shadow Storage. The court, however, found the expert had “little credibility” and noted various deficiencies in the testimony and methodology presented by the expert.

The court also found the Former Husband’s flexible work schedule was a benefit to the couple and the minor child. The flexible schedule allowed the Former Husband to care for the child when he was ill, *961 volunteer at school and with extracurricular activities, and allowed the Former Husband “to be highly involved in the minor child’s education at a level that would have been highly unlikely had the Husband not resigned his position in 2004 with [the technology company] and committed himself to being a work from home father.”

Based upon these findings, the court found the Former Wife had failed to meet her burden to establish the Former Husband was voluntarily underemployed. The Former Wife timely sought rehearing'and, after the motion for rehearing was denied, appealed the court’s judgment.

Analysis

A, The Court Did Not Abuse its Discretion in Determining the Former Husband Was Not Voluntarily Underemployed

We first address the Former Wife’s argument that the court erred in its conclusion that the Former Husband is not voluntarily underemployed for purposes of calculating child support.

Our “standard of review is whether the trial court’s determination is supported by competent, substantial evidence,” Heard v. Perales, 189 So.3d 834, 836 (Fla. 4th DCA 2015) (internal citation omitted), and we will not reverse unless the court abused its discretion. Guard v. Guard, 993 So.2d 1086, 1089 (Fla. 5th DCA 2008); see also Stanton v. Stanton, 648 So.2d 1233, 1234 (Fla. 4th DCA 1995) (“A child support determination is within the sound discretion of the trial court, subject to the- statutory guidelines and the reasonableness test.”).

The governing statute, section 61.30(2)(b), Florida Statutes (2015), provides that a court “shall” impute income to a parent it finds to be voluntarily underemployed. To determine whether to impute income as a result of voluntary underemployment, the court engages in a two-step process. Heard, 189 So.3d at 836. First, the court must conclude the termination of income was voluntary. Second, “the court must determine whether, the subsequent unemployment ‘resulted from the spouse’s pursuit of his own interests or through less .than, diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’” Id. (quoting Schram v. Schram, 932 So.2d 245, 249-50 (Fla. 4th DCA 2005)). The burden is on the party asserting that the other spouse is voluntarily unemployed or underemployed. Andrews v. Andrews, 867 So.2d 476, 478 (Fla. 5th DCA 2004). (citing Blanchard v. Blanchard, 793 So.2d 989, 992 (Fla. 2d DCA 2001)).

Generally, the Former Wife asserts the court failed to sufficiently conduct the two-part test. She relies upon the evidence regarding the Formér Husband’s income after he left his employment' at the technology ’ company, arguing his testimony that he intended to remain self-employed “should have been a shock to the conscience of the trial court.”

We acknowledge that a person can become “underemployed” by- leaving a more lucrative position in order to pursue - an interest in a family business. Guard, 993 So.2d at 1090. In Guard, the wife filed a motion for temporary alimony and child support. During the marriage, the husband had been forced to resign from his job in Georgia and the parties moved to Florida to start a family business. Similar to the business in this ease, the family business in Guard was not profitable. Due to the lack of income, the wife could not work because she could not afford child care for their children. The.

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Bluebook (online)
226 So. 3d 958, 2017 WL 3888760, 2017 Fla. App. LEXIS 12918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/andrea-k-gillette-nka-andrea-economus-v-joseph-gillette-fladistctapp-2017.