Hinton v. Smith

725 So. 2d 1154, 1998 WL 796713
CourtDistrict Court of Appeal of Florida
DecidedNovember 13, 1998
Docket97-03510
StatusPublished
Cited by30 cases

This text of 725 So. 2d 1154 (Hinton v. Smith) 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
Hinton v. Smith, 725 So. 2d 1154, 1998 WL 796713 (Fla. Ct. App. 1998).

Opinion

725 So.2d 1154 (1998)

Lucinda Jean HINTON f/k/a Lucinda Jean Smith, Appellant/Cross-Appellee,
v.
James SMITH, Appellee/Cross-Appellant.

No. 97-03510.

District Court of Appeal of Florida, Second District.

November 13, 1998.
Rehearing Denied January 29, 1999.

*1155 Charles D. Hinton of Deane & Hinton, P.A., St. Petersburg, for Appellant.

Deborah Marks, Aventura, for Appellee.

FULMER, Judge.

In this dissolution action, the former wife challenges the trial court's order modifying child support. The former husband challenges the trial court's refusal to allow him an opportunity to present the testimony of an expert witness at a later date. Both parties challenge the trial court's failure to conduct a hearing on attorney's fees prior to ruling on their respective motions for fees. We find error in the trial court's award of child support and its ruling on the parties' motions for attorney's fees.

CHILD SUPPORT

On August 2, 1993, the trial court entered a final judgment of dissolution, which ratified and incorporated the parties' marital settlement agreement. Because of the former wife's lack of income, the former husband agreed to pay $1500 per month in child support for their two minor children. He also *1156 agreed to pay $500 per month in rehabilitative alimony for three years, during which period the former wife agreed to attend a "degree-seeking program at an accredited college." Subsequently, the former wife attended classes at St. Petersburg Junior College, but stopped taking classes two courses short of her degree and took a part-time job working thirty-two hours per week earning $9.50 per hour, or $15,500 per year. Both parties remarried.

On June 3, 1996, the former wife filed a petition for upward modification of child support alleging, as a change in circumstances, that the former husband's income had increased. She also requested that payments be made through the Central Government Depository by an income deduction order. The former husband's June 28, 1996, counter-petition for downward modification of child support also alleged a substantial change in circumstances, on three grounds: that his income had decreased; that the former wife's needs had decreased because of her new husband's obligation to pay his fair share of their household expenses; and that the trial court should impute to the former wife an income of between $30,000 and $40,000 per year because the three-year rehabilitative term had ended.

We agree with the trial court's conclusion that there was a change of circumstances sufficient for the trial court to modify child support. The incomes of both the former husband and the former wife had changed substantially. Both sought modification, and neither argues that no modification should have been ordered. Instead, they direct their arguments primarily to the amount of modification and the method by which the trial court calculated the amount of support. Therefore, we conclude that the initial award was subject to modification and address the challenges raised by the parties.

While we realize the trial court could make essentially the same child support award based on proper findings, we are compelled to reverse on four points: (1) imputation of $30,000 income to the former wife; (2) addition of $855 in kind contribution to the former wife's income; (3) reduction of the former husband's net income by the cost of life insurance; and (4) failure to enter an income deduction order.

(1) Imputation of income

The trial court imputed to the former wife an income of $30,000 per year based on the conclusion that she could have earned at least $30,000 if she had completed her degree. The trial court stated:

[T]he Former Wife has failed to rehabilitate herself to the level contemplated by the parties when they entered into the Marital Settlement Agreement.... The Former Wife failed and refused to comply with their agreement by wilfully failing and refusing to complete her last two courses for her degree, which would have provided her with the credentials she needed so as to demand the salary anticipated by the parties. Thus, even though the former wife never earned $30,000 in her life, that annual income can be imputed to her because of the special but reasonable anticipations of the parties' agreement.

Section 61.30(2)(b), Florida Statutes (1997), sets forth the requirements for imputing income:

Income [on a monthly basis] shall be imputed to an unemployed or underemployed parent when such employment 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....

The standard of review for a trial court's imputation of income is whether competent substantial evidence supports it. See Scapin v. Scapin, 547 So.2d 1012, 1013 (Fla. 1st DCA 1989); Desilets v. Desilets, 377 So.2d 761, 763 (Fla. 2d DCA 1979). We conclude that the former husband failed to present competent substantial evidence to support the trial court's conclusion that $30,000 *1157 is the prevailing earnings level for a person who holds a two-year accounting degree. The only evidence presented was his own testimony that "[b]ased on the literature that I saw from St. Pete J.C., where she chose to go, there were many, many two-year degrees that would enable somebody to get anywhere from $30,000 to $40,000 a year."

We recognize that the former husband was denied the opportunity to present expert testimony that may have provided competent substantial evidence for the trial court's conclusion. However, even if the former husband had properly established $30,000 as the prevailing earnings level for someone with a two-year accounting degree, the trial court erred by imputing that income level to the former wife when she had not actually obtained a two-year accounting degree. The statute directs the trial court to consider the spouse's "occupational qualifications," not potential occupational qualifications. See Ritter v. Ritter, 690 So.2d 1372, 1374-75 (Fla. 2d DCA 1997) (reversing the trial court's imputation of income because "[t]he evidence did not support the court's finding that [the husband] had the `present ability' to earn in excess of his salary"); Ensley v. Ensley, 578 So.2d 497, 498 (Fla. 5th DCA 1991) (holding that where the former spouse cannot find employment commanding the salary earned in a previous job, it would be futile to order support payments based on imaginary income from unattainable employment).

Furthermore, even if the former wife had completed her degree, the attainment of a degree alone does not guarantee employment or a particular salary and, thus, does not constitute sufficient evidence to support imputation. For example, in Stewart v. Rich, 664 So.2d 1145 (Fla. 4th DCA 1995), the Fourth District reversed the trial court's imputation of $24,000 income per year to the former wife, even though she had recently completed her law degree and obtained her license to practice law. The trial court reasoned, "While it is ... true that the former wife has accomplished a great deal educationally, her accomplishments had not translated into actual employment and income at the time of the final hearing....

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Cite This Page — Counsel Stack

Bluebook (online)
725 So. 2d 1154, 1998 WL 796713, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hinton-v-smith-fladistctapp-1998.