George v. George

93 So. 3d 464, 2012 WL 2948549, 2012 Fla. App. LEXIS 11681
CourtDistrict Court of Appeal of Florida
DecidedJuly 18, 2012
DocketNo. 2D11-1388
StatusPublished
Cited by2 cases

This text of 93 So. 3d 464 (George v. George) 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
George v. George, 93 So. 3d 464, 2012 WL 2948549, 2012 Fla. App. LEXIS 11681 (Fla. Ct. App. 2012).

Opinion

VILLANTI, Judge.

Gregory George, the former husband, appeals the trial court’s final judgment awarding the former wife, Tammy George, $89,034.57 in attorney’s fees and costs. The court ordered the former husband to pay the award at the rate of $3200 per month. The former husband claims trial court error, inter alia, in finding entitlement to fees, the amount of fees, and the manner in which payment was ordered. We affirm on all issues, except one. Because we have been unable to corroborate the trial court’s calculations regarding the former husband’s net income and resulting ability to pay the award as ordered, we reverse in part and remand for further proceedings on this issue only.

The parties, both in their forties, were married fourteen years. Them marriage produced no children. The couple’s only major marital assets were a house — which was worth less than its mortgage and was in foreclosure — and the former husband’s retirement account, which the court found that he had improperly liquidated and spent. The only other issue was whether the former wife was entitled to some type of alimony. The trial court found that, but for the former husband’s obstreperous behavior, the parties should have been able to quickly resolve all issues and obtain a final judgment of dissolution. Yet, the case spiraled out of control, languished in the trial court since 2007, and has been the subject of four interlocutory appeals all filed by the former husband.1 The record contains competent, substantial evidence supporting the trial court’s conclusions except on two related issues. As explained below, this warrants a limited reversal for further fact finding.

I. Trial Court’s Tax Findings

The former husband argues that the trial court’s tax findings were not based on competent, substantial evidence. The former husband’s financial affidavit indicated that his gross monthly salary was $10,649, subject to the following deductions: $2631.42 (federal, state, and local income tax), $642.35 (FICA), and $150.24 (Medicare). The final judgment on fees concluded that the former husband’s taxes were exaggerated:

The Former Husband lists $2,631.42 for federal and state taxes, $642.35 for FICA and $150.24 for Medicare for a total of $3,424.01 when his total monthly deductions should be no more than $1,816 ($514 for federal taxes, $596.00 for state taxes, $552 for FICA, and $154 for Medicare). The Former Husband receives a substantial deduction in his taxes for his alimony payment. The Former Husband is manipulating his taxes to avoid payment of support obligations .... Without imputing the $2,200 in income for unpaid rental expenses to the Former Husband, the Former Hus[467]*467band has available income to him of $5,383 after the payment of his alimony obligation. Including the imputed rental income of $2,200 per month for which the Former Husband pays no taxes, the Former Husband has available income to him of $7,583 after the payment of his alimony obligation.

(Emphasis added.)2 The court then arrived at its own tax liability calculations but, unfortunately, it did not explain how it reached those numbers. Although it is likely that the trial court adopted certain figures set forth in a worksheet filed by the former wife as part of her closing argument, that worksheet by itself is not competent, substantial evidence. We have also been unable to independently corroborate record evidence supporting the trial court’s finding that the former husband’s “total monthly deductions should be no more than $1,816 ($514 for federal taxes, $596.00 for state taxes, $552 for FICA, and $154 for Medicare).”

A trial court’s determination of a party’s net income must be supported by competent, substantial evidence. McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008). In a case such as this one involving a significant dispute about one of the party’s income, “meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.” Id. Generally, this is the pivotal building block from which all other economic issues flow.

A trial court should determine a party’s net income by subtracting statutorily allowable deductions, such as tax deductions, from the party’s monthly income. Chaney v. Fife, 18 So.3d 44, 45 (Fla. 1st DCA 2009). Lack of competent, substantial evidence supporting the numbers the court used for a party’s tax liability warrants reversal. Id. (reversing income calculation in child support case because there was no competent, substantial evidence to support the number used for each party’s federal tax liability). Because there is no competent, substantial evidence supporting the tax liability numbers attributed by the trial court to the former husband, we must remand for the trial court to reconsider this issue and include that information in the final judgment.

II. The Trial Court’s Imputation of Income to the Former Husband

The former husband also complains about the trial court’s imputation of income to him. We find no error in the trial court’s decision to impute income to the former husband because he was living rent-free in a house owned by his parents. But, for the reasons explained below, the trial court erred in how it applied that imputation of income to the facts of this case.

Imputation of income to a spouse for purposes of determining support is appropriate when someone, such as an employer or parent, is paying or subsidizing some of that spouse’s monthly living expenses. See, e.g., Posner v. Posner, 39 So.3d 411, 413-14 (Fla. 4th DCA 2010) (affirming trial court’s decision to impute $1400 income to the father based on the rental value of the home owned by the parents, where they allowed him to live rent-free); Chapoteau v. Chapoteau, 659 So.2d 1381,1384 (Fla. 3d DCA 1995) (holding that husband’s employer-provided residence was income). In this case, the former husband’s financial affidavit listed his monthly salary as $10,649, and claimed a monthly deficit of $2529 after deducting all monthly expenses. One of those expenses was monthly rent of $2200. Yet, at the [468]*468final hearing on dissolution held on April 7, 2010, the former husband testified that he was living in a home owned by his parents. While he claimed he had agreed to pay his parents $2200 monthly in rent, as of the date of the hearing he had only made two payments of $1800 to them. And at the hearing held on December 10, 2010, the former husband testified that he had not paid his parents any rent in quite some time, instead, giving them “IOUs.” Clearly, the trial court rejected the former husband’s testimony regarding his rent expense, and such credibility determinations are within its discretion. See, e.g., Posner, 39 So.3d at 413-14 (imputing $1400 in income to the husband when both parents had been allowing him to live rent-free in a house owned by them, even though the parents testified that they did not intend their assistance to continue and that they intended to sell the house). Therefore, we find no error in the trial court’s decision to reject the former husband’s testimony and, in turn, impute $2200 in monthly income to him.3

However, the trial court erred in how it applied that imputation of income. As a result, it reached an incorrect conclusion about the amount of income actually available to the former husband to pay the former wife’s fees.

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Bluebook (online)
93 So. 3d 464, 2012 WL 2948549, 2012 Fla. App. LEXIS 11681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/george-v-george-fladistctapp-2012.