Koscher v. Koscher

201 So. 3d 736, 2016 Fla. App. LEXIS 14156
CourtDistrict Court of Appeal of Florida
DecidedSeptember 21, 2016
DocketNo. 4D15-2432
StatusPublished
Cited by2 cases

This text of 201 So. 3d 736 (Koscher v. Koscher) 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
Koscher v. Koscher, 201 So. 3d 736, 2016 Fla. App. LEXIS 14156 (Fla. Ct. App. 2016).

Opinion

FORST, J.

Appellant Marcie Koscher (“the wife”) and her ex-husband Appellee Daniel Koscher (“the husband”) have both appealed aspects of the final judgment of dissolution of their marriage. As discussed below, we reverse and remand for further proceedings with respect to the trial court’s failure to impute income to the husband, the calculation of alimony to be paid to the wife, and the payment of the wife’s attorneys’ fees.1

Background

The parties were married for over thirty years. At the time of the dissolution proceedings, they had two adult daughters and shared six properties. The husband was last employed in 2012, though he received severance payments until September 2013. In the last four years of employment prior to his termination, the husband had an annual compensation between- $450,000 and $1.13 million (an average of nearly $850,000/year).2' The parties agreed that the wife suffers from a number of significant health problems and had not worked during or after the marriage.

The husband testified that he was trying to start his own company and was not pursuing other employment options, although a couple of projects with which he was involved had been commenced during the couples’ pre-dissolution separation. He added that it was his intent to restore himself to an “affluent level of income” after completion of the dissolution proceedings, and expected an average annual income of $1.9 million.

In light of the husband’s unemployment at the, time of the marriage dissolution, the wife requested that the trial court impute income to the husband when calculating the alimony payments to be made by the husband to the wife. Although it found that the husband was voluntarily unemployed and not engaged in a diligent effort tp obtain employment, the trial court nonetheless refused to impute any income to the husband. In explaining this decision, the trial court noted that it did not find [740]*740evidence showing what the imputed income should be.

The trial -court further found that, based on the length of the marriage and the wife’s need, she was entitled to permanent periodic alimony. The husband also conceded this point. The trial court concluded that the wife established that “the parties enjoyed an elite, affluent, upper level, top shelf,, high-end but not extravagant standard of. living.” It also credited the husband’s financial affidavit, which showed that the. - couple “historically spent $30,000.00 per month on living expenses.” The trial, court additionally noted that the wife’s most recent financial affidavit stated hér monthly expenses were $17,000 per month. It found the husband was “deliberately unemployed” and the parties estimated their collective net worth to be between $3.7 and $3.8 million.

Based on these figures and, as noted above, no imputation of income to the husband, the trial court set “the actual amount [of permanent periodic alimony] which should be paid” to the wife as $11,000 per month. However, the trial court ordered that the wife receive only $100 per month in nominal alimony, because the husband’s lack of a salary impeded his present ability to pay alimony. The trial court noted that when the day came for the husband to start “paying the $11,000 a month on a monthly basis, there [would] likely be a sizable arrearage prob-lém that’s accumulated that [he] would have to'address.” However, upon the husband’s motfon for rehearing, the trial court amended the final judgment and omitted this reference to arrearages. Thus, for all intents and purposes, the alimony awarded was $100 per month.

The wife sought attorneys’ fees. Her motion was denied by the trial court, which reasoned that both the wife and the husband had similar abilities to pay their attorneys.

Analysis

A. The Imputation of Income to the Husband

“In considering the imputation of income, the 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) (quoting Schram v. Schram, 932 So.2d 245, 249 (Fla. 4th DCA 2005)). However, in the instant case, the trial court refused to impute income. “The framework the court uses to determine whether imputation is necessary and, if so, how to calculate an amount is an issue of law we review de novo.” Lafferty v. Lafferty, 134 So.3d 1142, 1144 (Fla. 2d DCA 2014).

A trial court may impute income “if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts.” Freilich v. Freilich, 897 So.2d 537, 540 (Fla. 5th DCA 2005) (quoting Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004)). “In imputing income, the trial court engages in a two-step process. First, the court must conclude that the termination of income was voluntary.” Heard, 189 So.3d at 836; accord Schram, 932 So.2d at 249. Here, the husband’s termination of income was involuntary—he was terminated from his job and received severance for over a year. This leads to the second inquiry: “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.’ ” Heard, 189 So.3d at 836 (quoting Schram, 932 So.2d at 249-50). A spouse is not spared from the obligation to be “diligent in finding replacement in[741]*741come,” Lafferty, 134 So.3d at 1144, even if that spouse is initially involuntarily unemployed, if the spouse is physically and mentally capable and otherwise employable.

“The spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available.” Durand v. Durand, 16 So.3d 982, 985 (Fla. 4th DCA 2009). In addressing the issue, “the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.” Schram, 932 So.2d at 249. The trial court “may only impute a level of income supported by the evidence of employment ' potential and probable earnings based on history, qualifications, and prevailing wages.” Id. at 250.

In the case at hand, while there is no dispute the husband was involuntarily terminated from his last job, his continued unemployment was voluntary, as he did not make any diligent efforts to seek comparable employment. ’ In Vazquez v. Vazquez, 922 So.2d 368 (Fla. 4th DCA 2006), the husband applied for several jobs and was interviewed three times, and this Court found that was still not enough to show a good faith effort in seeking comparable employment. Id. at 371-72. Here, there was no evidence the husband even applied for a job, let alone interviewed for one. Instead, the husband decided to start his own business, and chose to wait until the divorce was finalized before making an effort to earn an income (“I’m in limbo. I was waiting for the Judge to resolve this case.”).3 Although his initial unemployment was involuntary, the husband had not worked for nearly three years as of the date of the dissolution, and had not received severance payments for about a year and a half. Thus, the trial court properly found that, at the time of the final dissolution, the husband was voluntarily unemployed.

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Bluebook (online)
201 So. 3d 736, 2016 Fla. App. LEXIS 14156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/koscher-v-koscher-fladistctapp-2016.