In a recent alimony case captioned Gillette v. Gillette, the Florida Court of Appeal refused to impute income to a small business owner who chose to continue working in his own business rather than working for a larger employer.
In a recently decided alimony case, the Florida Court of Appeal stated that permanent alimony is intended to allow the recipient spouse to maintain the standard of living established by the parties during the course of their marriage. In this case, the parties were married for 39 years and had adult children. The parties agreed upon the distribution of their assets, but were unable to agree upon the amount of the wife's alimony award. The parties agreed that the Wife was to receive ½ of the Husband's military retirement benefits. The parties both took on debt. During the course of the marriage, the wife worked and raised the parties' children while the Husband served in the military. The wife was a bartender in the marriage's early years and was then a realtor. The wife was then in a motorcycle accident and was not working at the time of the trial. The wife was in the process of attempting to obtain disability benefits at the time that the trial took place. At the time of trial, the Husband was retired and was working on a contract basis. The husband also received a disability check.
In a divorce proceeding involving alimony, a spouse claiming income should be imputed to an unemployed or underemployed spouse must show that the unemployed or underemployed spouse is employable and that jobs are available. In order to determine the amount of income to impute, the Court must consider the spouses' recent work history, occupational qualifications, and prevailing earnings in community for the class of jobs available. In making an alimony award, the trial court is to utilize the prevailing income in the community to impute income to the payor and not income that could be earned by the payor from a relocation. In Broga v. Brogathe Florida Court of Appeal recently stated that income is imputed to an unemployed or underemployed individual if such unemployment or underemployment is found by the court to be voluntary. If the trial court finds that a person's unemployment or underemployment is voluntary, the probable earnings level of the payor should be determined based upon his or her recent work history, his or her occupational qualifications, and the prevailing earning level in the community in which the payor lives.
In awarding alimony, the court imputes income to an unemployed or an underemployed individual. In Cameron v. Cameron, the Florida Court of Appeal recently stated: "In a dissolution of marriage proceeding, each party's sources of income and ability to pay are factors to be considered in determining whether alimony, child support, or attorney's fees are appropriate, and if so, in what amounts." Smith v. Smith, 737 So. 2d 641,642 (Fla. 1st DCA1999). Where a parent is underemployed, the court is required to impute income to that parent unless the lack of employment is the result of the parent's physical or mental incapacity or other circumstances beyond the parent's control. § 61.30(2)(b), Fla. Stat. (2011); Hentze v. Denys, 88 So. 3d 307, 311 (Fla. 1st DCA 2012). The decision of whether to impute income must be supported by competent, substantial evidence. See Gray v. Gray, 103 So. 3d962, 966 (Fla. 1st DCA 2012)."
In making an alimony award, a court's failure to make findings of fact relative to all of the statutory factors is reversible error. In Julia v. Julia, the Florida Court of Appeal recently stated: "[I]n imputing income to the Wife in the amount of $45,000 per year, the trial court neglected to make any findings with respect to whether the Wife's unemployment at the time of the hearing was "voluntary," nor did the court address the Wife's evidence that she has been making "diligent and bona fide efforts to find employment." See Durand v. Durand, 16 So. 3d 982, 985 (Fla. 4th DCA 2009) (quoting Leonard v. Leonard, 91 So. 2d 263, 265 (Fla. 1st DCA 2008)). This court has determined that both inquiries are necessary in imputing income and that"[t]he spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available." Id.