Fort Lauderdale Divorce Lawyer Blog

In Bengisu v. Bengisu, the Fourth District Court of Appeals reversed and remanded a Florida divorce court's decision awarding the Wife temporary child support and alimony. The Wife filed a petition for dissolution of marriage with two minor children in the Florida divorce Court. Subsequent to filing for dissolution of marriage, the Wife also filed a motion seeking temporary child support and alimony. The Broward County divorce court awarded the Wife temporary support in the amount of $5,500 per month, and the Husband appealed.

At a hearing on the motion for temporary child support and alimony, the court looked at the parties' financial affidavits as well as heard their direct testimony. The Wife's financial affidavit listed that she was unemployed, had monthly expenses of $11,898.00 and a net worth of $744,123.00. The Husband's financial affidavit listed he was a lawyer employed as a solo practitioner, that he had a net monthly income of $2,585.00, total monthly expenses of $4,886.58 and a monthly deficit of $2,720.29. He listed a net worth of $322,230.00.

In her direct testimony, the Wife told the court that the household expenses were $12,600 per month, that her Husband was responsible for all of the bills and that throughout the marriage the couple accrued no debt to pay their monthly expenses. Additionally, the Wife explained that her Husband left his solo practice to work for a law firm for four months leading up to the divorce and, while there, his salary was $85,000. Additionally, the Wife's accountant testified that based on the financials she needed $5,500.00 per month during the pendency of the divorce and that he believed the Husband's tax returns did not accurately reflect the Husband's real income. The Husband testified that the reason the couple did not have any debt was because his parents had helped pay for their household expenses, but were no longer in a position to continue to provide this assistance. At the conclusion of the hearing the trial court awarded the Wife $5,500 per month in temporary support.

On appeal the Fourth District concluded that the trial court abused its discretion in awarding monthly support of $5,500 to the Wife because this amount greatly exceeded the Husband's monthly net income. The appellate court explained that the trial court failed to make specific findings based on competent substantial evidence that the Husband's actual monthly income exceeded his stated monthly income. Moreover, the trial court erred because it imputed income to the Husband without making specific findings indicating the source and amount of the Husband's imputed income.

In determining whether and to what extent temporary alimony is required, the trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony. Both the requesting spouse's need and the other spouse's ability to pay must be supported by competent, substantial evidence.

In determining a spouse's ability to pay, the trial court will impute income where it is demonstrated that a parent is voluntarily unemployed or underemployed. In order to calculate this figure, the trial court takes into consideration the spouse's recent work history, occupational qualifications, and the prevailing earnings level in the community. The trial court may not impute income based on gifts or loans.

In conclusion, the appellate court reversed and remanded for the trial court to make the necessary finding based on competent, substantial evidence regarding the Husband's income, and to award an appropriate amount of temporary support to the Wife based on those findings.

In Scarti v Scarti, the Fourth District Court of Appeals recently reviewed a Florida family law court's final judgment of paternity where the father challenged the amount he owed to the mother for retroactive child support. In particular, the father appealed the amount of income that the trial court imputed to the mother. In determining the amount the father had to pay to the mother pursuant to the child support guidelines, the court imputed $2,031 net monthly income to the mother.

The mother had a high school GED. In 2004, she earned between $1,000 and $4,500 a month operating her own landscaping company. She also testified that the most she ever earned in a year was $22,000. Her only other work experience was as a waitress at the age of seventeen and working in her mother's flower shop. Based on her education and prior work history the court imputed $2,031 per month which totals $24,372, more than the mother earned in a given year.

The Fourth District affirmed the imputation of income to the mother in the amount of $2,031 and found that this was not an abuse of discretion.

Income on a monthly basis is imputed to an unemployed or underemployed parent when such employment or underemployment is found by the court to be voluntary on that parent's part, absent a finding of fact by the court of 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 as provided in this paragraph; however, the court may refuse to impute income to a parent if the court finds it necessary for the parent to stay home with the child who is the subject of a child support calculation.