If you watch enough TV courtroom drama shows, you’ve likely seen it at some point. One of the lawyers will attempt to introduce some piece of evidence, and the other attorney will exclaim, “Objection! Hearsay!” While hearsay objections may be more commonly associated with criminal cases, they also take place in civil matters as well, including family law disputes. In a case recently before the Fourth District Court of Appeal, the hearsay rule and its exceptions were the key issue in deciding whether the wife had proper evidence to support her argument for imputing income to the husband. Since the appeals court decided that the wife’s evidence wasn’t admissible, that meant that the trial court order had to be reversed.
The hearing that led to this appeal was one covering parental responsibility, timesharing, and child support. Earlier in the process, the husband had handed over several bank statements from his personal accounts, which he was required to do as part of the divorce’s mandatory disclosure procedure. With these statements in hand, the wife attempted to put them on the record in the hearing by introducing them into evidence. The husband objected, arguing that they were inadmissible under the evidence rules covering hearsay. The trial judge initially agreed but then later let in the records. The records revealed that the husband had made several deposits two years before the hearing for which he couldn’t provide a source, suggesting that he possibly borrowed money from his grandmother.
The trial court considered all of this information in deciding that “the husband had a base income of $32,000 annually,” plus an additional $2,966 per month, based upon the bank records.
The husband appealed, and he won. Whether your case is about alimony, child support, or another family law issue, if you’re asking the court to impute income to your spouse, the law requires competent evidence to support the judge’s making such a ruling. The wife’s evidence backing up her argument for imputed income in this case was the collection of bank statements and the unsourced deposits they revealed. The problem for the wife in this case was that the bank statements were hearsay and did not fall within any hearsay rule exception, which meant that they were inadmissible, the appeals court ruled.
Florida law defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The hearsay rule says that any hearsay statement is inadmissible unless it falls within one or more of the exceptions carved out by the law. The husband’s bank statements clearly met the definition of hearsay, according to the court, since they were made by the husband’s bank (no representative of which testified at the hearing) and were introduced to prove that the deposits actually happened. That made them statements made by a third party to prove the truth of the deposits.
One of the exceptions to the hearsay rule is the business records exception, which the wife argued on appeal applied to these bank statements and made them admissible. Unfortunately for the wife, the business records exception carries with it an extra hurdle. The party seeking to admit hearsay evidence under the business records exception must provide the court with a “certification or declaration to state that the record sought to be admitted was made at or near the time of the occurrence or from information transmitted by a person with knowledge, was kept in the course of regularly conducted activity, and was made as a regular practice in the course of the regularly conducted activity.” The wife in this case didn’t have any certification or declaration like that, so she could not prevail on her business records exception argument.
Sometimes, in a family law case, the difference between a successful and an unsuccessful resolution may be getting all of your proof on the record while also keeping out potentially harmful information that shouldn’t be before the judge. Experienced Florida counsel can help. The hardworking South Florida child support attorneys at Sandy T. Fox, P.A. have handled a wide array of divorce cases over the years and have extensive experience in dealing with disputes over imputing income. Contact our attorneys online or by calling (800) 596-0579 to schedule your confidential consultation.
More blog posts:
Calculating Child Support in Florida When a Parent Has Been Recently Fired or Laid Off, Fort Lauderdale Divorce Lawyer Blog, July 27, 2016
Imputing Income to Your Ex-Spouse in Your Florida Alimony Case, Fort Lauderdale Divorce Lawyer Blog, Feb. 10, 2016