IMPUTING INCOME TO UNEMPLOYED OR UNDEREMPLOYED PARENTS

In a recent child support case involving unmarried parents, the mother attempted to impute income to the father. The father lost his job as a commodity broker as a result of his misappropriation of funds.  The mother introduced a report from a vocational expert in an attempt to impute income to the father.

In a case captioned, Damask v. Ryabchenko, the Florida Court of Appeal began by pointing out that Florida’s child support guideline presumptively set forth the amount that trial courts should award as child support in initial proceedings and modification proceedings.  The child support guidelines can be also used to provide a basis to prove that there has been a substantial change of circumstances that warrants a modification of child support.

Income should be imputed to unemployed or underemployed parents when their unemployment or underemployment is voluntary. If a parent is voluntarily unemployed or underemployed, the parent’s probable earnings are determined based upon his or her recent earnings, qualifications, and prevailing earnings in the community. The party seeking to impute income has the burden of proving that the other party’s unemployment or underemployment was voluntary, and must provide evidence to the court that income is available to the payor from employment for which he or she is qualified by education, experience, and geographic location.  In determining geographic location, consideration should be given to the parties’ custody and visitation schedule and the parties historical utilization of time-sharing with their children.

In imputing income to parents, trial courts must conduct a two-step analysis.  First, trial courts must determine whether a party’s loss of income was voluntary.  Second, the trial court must determine whether the party’s unemployment or underemployment was the result of less than diligent efforts to find employment paying income at or above the amount of income that was previously earned, or as a result of a party’s pursuit of his or her own interests.

Where parties lose their jobs because of misconduct, this constitutes voluntary unemployment.  Some examples of misconduct, include pilots losing their jobs when they fail drug tests, parents losing their jobs due to absenteeism, and parents losing their jobs as a result of misconduct outside of the workplace.

Additionally, trial courts must decide whether a payor’s unemployment or underemployment was the result of less than diligent efforts to obtain employment or as a result of a party’s pursuit of their own interests.  A trial

Court can only impute income at an amount that is supported by evidence of employment potential or probable earnings based on the party’s qualifications, job history and prevailing wages in the community.  The party seeking to impute income has the burden of proof to demonstrate a source and amount of income that can be imputed from employment that is available and for which the party is qualified by experience, education, licensure (if required), and geographic location. Past earned income has no bearing unless it is reflective of current reality.  A trial court must look at the payor’s qualifications, employment history, and the prevailing level of earnings in the community for jobs that are available.

In the case at bar, the father provided the trial court with evidence that he could not return to work in the same capacity.  He worked in a small industry and his name was tarnished as a result of his misconduct.  After a job search that was unsuccessful, the father started his own company.  In this case, the trial failed to make appropriate findings of fact concerning the father’s qualifications, his employment history, and the prevailing earnings level in the community.  Additionally, the mother failed to introduce sufficient evidence concerning these matters.  Therefore, there was insufficient evidence presented to the trial court to support its conclusion that the father’s underemployment was the result of the father’s failure to attempt to find comparable employment. Accordingly, the Florida Court of Appeal reversed the trial court and remanded this case for the rehearing of these issues.

To speak with a Wellington, Florida attorney who represents unmarried parents to discuss child custody and visitation and child support, contact the Lane Law Firm, P.A. at (561) 363-3400.

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