ANEMEY K. HUERTAS DEL PINO v. CARLOS E. HUERTAS DEL PINO

229 So. 3d 838
CourtDistrict Court of Appeal of Florida
DecidedNovember 1, 2017
Docket4D16-3736
StatusPublished
Cited by4 cases

This text of 229 So. 3d 838 (ANEMEY K. HUERTAS DEL PINO v. CARLOS E. HUERTAS DEL PINO) 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
ANEMEY K. HUERTAS DEL PINO v. CARLOS E. HUERTAS DEL PINO, 229 So. 3d 838 (Fla. Ct. App. 2017).

Opinion

Klingensmith, J.

Anemey K. .Huertas Del Pino (“Wife”) appeals a final judgment of dissolution that ended her long-term marriage to Carlos E. Huertas Del Pino (“Husband”). Wife argues the trial court erred in holding that, for the purposes of awarding alimony, income should be imputed to her based on her eligibility for Social Security retirement benefits she had not yet applied to receive. We agree. Because of error in the trial court’s determination regarding the imputation of Social Security income to Wife, and the effect of that imputation on the award of alimony to her, we reverse.

For alimony purposes, trial courts may impute income to a voluntarily unemployed or underemployed spouse in determining the parties’ earning capacities, sources of income, and financial circumstances. See § 61.08(2)(e), (i), (j), Fla. Stat. (2016); Rabbath v. Farid, 4 So.3d 778, 781-82 (Fla. 1st DCA 2009); Freilich v. Freilich, 897 So.2d 537, 540 (Fla. 5th DCA 2005). The burden of proof is on the party seeking to impute income to the other spouse. Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005). Where a court imputes income to a spouse, the reviewing court must determine whether competent, substantial evidence supports imputation. Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008).

The final judgment detailed Wife’s employment and education history throughout the marriage, which was minimal because she was a stay-at-home mother during most of that time. When the Petition for Dissolution was filed, Wife was sixty-two years old and had earned a GED. In her last employment, she worked for a,. California cosmetics company, and earned $12 per hour. Two months prior to the filing of the Petition for Dissolution, she voluntarily left her job and came to Florida to expedite the divorce and avoid the high cost of' California living. Wife’s testimony established that she desired to work full-time and intended to do so, but had not- received a single response to ' any job applications. Even though her last job paid $12 per hour, Wife testified that she did not believe she could make $12 an hour in Florida due to her age, and because the minimum wage in Florida was between $8 and $9 per hour. 1 The trial court found that Wife was voluntarily unemployed or underemployed-because according to the final judgment “[t]he Wife admitted she is able to work, and should be able to earn- $10/hour, working 40 hours a week.”

Additional testimony revealed that, although she was eligible to receive, $640 per month in Social Security income, Wife chose to defer receipt of those benefits so that she might receive $900 per month in Social Security income after her sixty-fifth, birthday. From this evidence, the. trial court added an additional $640 per month to Wife’s monthly imputed income for the purposes of calculating alimony. The trial court’s final judgment stated, “[T]he Wife’s gross income is $1,907.33. However, if the Wife takes her Social Security income in the amount of $640.00, per month, her gross income will be $2,647.33, per month.” After imputing this income to her, the trial court also concluded that “[t]he Wife has the ability to support herself to earn income in the total amount of $2,647.33 per month', which provides enough of a surplus for the Wife to find suitable housing.” Thus, the record is' clear that the trial court improperly considered Wife’s potential monthly Social Security benefits in its alimony computation.

' Wife argues that her Social Security benefits may not be included as income unless she receives payments from the Social Security Administration (“SSA”). Under section 61,08(2):

In determining whether to award alimony or maintenance, the court shall first make a specific factual determination ns to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. If the court finds that a party has a need for alimony or maintenance and that the other party has the ability to pay'alimony or maintenance, then in determining the proper type and amount of alimony or maintenance under subsections (5)-(8), the court shall consider all relevant factors, including, but riot limited to:
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(e) The earning capacities, educational levels,'vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
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(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.
(j) Any other factor necessary to do equity and justice between the parties;

The monthly income a person receives once he or she applies for Social Security benefits depends on several factors, including the person’s age when applying for benefits, the person’s full retirement age, how long the person worked, and how much the person earned. See 42 U.S.C. §§ 402-415. However,. an individual who elects to receive benefits before full retirement age will suffer a permanent reduction in benefits. See 42 U.S.C. § 402(q)(l) (2015).

It is well-established that Social Security benefits a party receives can be properly considered as income in awarding alimony. See Lamont v. Lamont, 851 So.2d 898, 899 (Fla. 4th DCA 2003). However, the question here is different: whether Social Security benefits should be ’imputed as income where a person is eligible to receive benefits, but has not yet applied for or received them.

Here, Wife was not receiving Social Security benefits from the SSA when the trial court decided alimony. The evidence instead shows that Wife chose not to receive her Social Security benefits because she determined that the economic value of receiving the benefits early was outweighed by the benefit of electing to receive them later. Because Wife was not receiving payments from the SSA, these deferred benefits were not currently available income to Wife. Only those benefits that are paid from the SSA and delivered to the recipient may be considered part of a party’s income for purposes of calculating alimony under section 61.08.

Although there are no Florida cases directly on- point, the rationale of Moore v. Moore, 242 Mich.App. 652, 619 N.W.2d 723 (2000), supports our conclusion. In Moore, the wife requested that the trial court increase her alimony award, but the husband objected because the wife had not exercised her ability to collect payments from her pension. Id. at 724. The husband argued that the potential pension benefits should be imputed as part of the wife’s income. Id. The trial court refused to impute the potential pension income, and stated that it would not consider the pension benefits as income to either, party until that party began receiving the pension benefits. Id. The Michigan. Court of Appeals held:

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Bluebook (online)
229 So. 3d 838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anemey-k-huertas-del-pino-v-carlos-e-huertas-del-pino-fladistctapp-2017.