In a divorce proceeding, the party attempting to impute income, bears the burden of proof to provide competent substantial evidence. In Cash v. Cash the Florida Court of Appeal recently stated: “In the supplemental final judgment the court did not impute income to the former wife, finding that “the evidence was insufficient.
The former husband contends this is error given the evidence presented at the hearing. The court’s order provides no basis for its decision to impute no income to the former wife, and the record reflects that the former husband asked the court to impute income at the hearing on his petition for modification. Monthly income ‘shall be imputed to an unemployed or underemployed parent when such [un]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.’ §61.30(2)(b). Imputing income is a two-step analysis: “(1) the determination of whether the parent’s underemployment was voluntary, and (2) if so, the calculation of imputed income.” Bator v. Osborne, 983 So. 2d 1198, 1200 (Fla. 2d DCA 2008). The former husband had the burden of proof as the party asserting that the former wife was voluntarily unemployed and that income should be imputed to her. See Torres v. Torres, 98 So. 3d 1171, 1172 (Fla. 2d DCA 2011). ‘The decision to impute income and the determination of the amount of income to be imputed must be based on competent, substantial evidence presented at an evidentiary hearing.’ Roth v. Roth, 973 So. 2d 580,590 (Fla. 2d DCA 2008) (citing Wendel v. Wendel, 852 So. 2d 277,283 (Fla. 2d DCA 2003)). Although it did not expressly state whether the former wife was voluntarily or involuntarily unemployed, the trial court found that the evidence presented was insufficient to impute income to her. Given the mandatory language of the statute, the court’s statement implicitly encompasses a finding that the former wife was involuntarily unemployed. However, none of the evidence presented at the hearing supports a finding of involuntarily unemployment. The former husband presented competent, substantial evidence that the former wife is voluntarily unemployed.”
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