Opinion
Case No. 5D19-879
05-01-2020
Michelle JONES, Appellant, v. Damien M. JONES, Appellee.
Robert M. Grguric, of Robert M. Grguric, P.A., Orlando, for Appellant. Nicole L. Benjamin, of Benjamin Law Firm, P.A., Orlando, for Appellee.
Robert M. Grguric, of Robert M. Grguric, P.A., Orlando, for Appellant.
Nicole L. Benjamin, of Benjamin Law Firm, P.A., Orlando, for Appellee.
COHEN, J.
Michelle Jones ("Former Wife") appeals the amended final judgment of dissolution of her marriage to Damien Jones ("Former Husband"). On appeal, Former Wife argues that the trial court erred in: (1) finding that the parties stipulated to the equitable distribution chart attached to the amended final judgment; (2) ordering that she make an equalizing payment to Former Husband; (3) imputing income to her; and (4) denying her request for attorney's fees.
Ironically, issues related to the parties' finances were secondary at trial; the parties have two children together and spent most of the trial disputing timesharing and parenting issues. Although the exact amount cannot be ascertained definitively from the record, over the past several years, the parties have expended more than $200,000 in attorney's fees litigating issues related to their children.
For purposes of our analysis, we combine the two equitable distribution issues. When the trial commenced, Former Wife stipulated to the asset values and distribution provided in Former Husband's proposed equitable distribution chart. Although the parties dispute whether the proposed equitable distribution chart that Former Husband presented to Former Wife was the same chart that he provided to the trial court, which was eventually attached to the amended final judgment, we find that there is insufficient evidence to establish that the charts were different.
However, we agree with Former Wife that the trial court erred in finding she stipulated to making an equalizing payment to Former Husband. When the trial court requested the parties' proposed equitable distribution charts, Former Wife explained that she did not prepare one, but that she reviewed Former Husband's and did not disagree "with the numbers or the columns they're in." During his opening statement, Former Husband urged that "based upon [his proposed equitable distribution] worksheet ... there is an equalizing payment due to my client in the amount of $68,549." Former Wife did not mention the equalizing payment during her opening statement, and the parties did not discuss equitable distribution or the equalizing payment during trial. However, during her closing argument, regarding attorney's fees, Former Wife said:
The trial court ordered that Former Wife make an equalizing payment of approximately $68,000, in monthly installments of $750.
I don't know where the money is going to come from.
....
If no other—if from no other source, Judge, you know, opposing counsel talked about equalizing payment under the terms of her equitable distribution worksheet. Again, I don't—the numbers are acceptable for purposes of what there is to divide and what the liabilities are. Maybe each party pays their own attorney's fees and they walk away from this with no equalizing payment. That would certainly be something, but she doesn't have the ability to pay an equalizing payment any more than he has the ability to pay her $100,000-plus in attorney's fees right now.
Accordingly, based on that argument, as well as her statements that she agreed with the "with the numbers or the columns they're in," it is apparent that Former Wife stipulated only to the asset values and distribution on Former Husband's proposed equitable distribution chart; she opposed the equalizing payment on the basis of her inability to pay.
It is apparent from Former Wife's financial affidavit that Former Wife did not have the ability to make an equalizing payment without placing herself in financial jeopardy. See Abramovic v. Abramovic, 188 So. 3d 61 (Fla. 4th DCA 2016) (finding trial court erred in imposing equalizing payment plan where no record evidence established former wife's ability to make such payments; instead, record reflected that former wife could not make payments).
On Former Wife's third point, the trial court did not err in finding that she was voluntarily underemployed. Former Wife testified about her education and past job experience. When the trial court asked whether she was able work, Former Wife admitted that she could. Former Wife explained that she was not working because she was homeschooling the parties' children three days a week; she had difficulty finding employment in 2016 and 2017 because she was looking for a job for only two days a week.
The trial court found that based on Former Wife's resume and past job experience, Former Wife was able to work. Additionally, it found that Former Wife would have the opportunity to work full-time because it was ordering that the parties' children no longer be homeschooled. Accordingly, competent substantial evidence supports the trial court's finding that Former Wife was voluntarily underemployed. See Kreisler v. Kreisler, 752 So. 2d 1288, 1289 (Fla. 5th DCA 2000) (holding trial court erred in failing to impute at least minimum wage income to former wife because although former wife had not worked outside of home for most of twenty-year marriage except for odd jobs, parties' children were almost of legal age and no longer needed intensive child care, such that former wife could work); see also Bracero v. Bracero, 849 So. 2d 388, 390 (Fla. 5th DCA 2003) (holding trial court erred in failing to impute at least minimum wage income to former wife where former wife had worked during marriage and record demonstrated that former wife could work outside home).
However, the record is less clear regarding Former Wife's earning capacity. The trial court made no findings about Former Wife's employment potential, probable earnings based on work history, qualifications, or the prevailing wages in the community. See § 61.30(2)(b), Fla. Stat. (2019). The reason for this is apparent: Former Husband presented no competent substantial evidence in this regard.
Former Wife testified that she most recently worked in 2015 as an executive assistant, earning $17.50 per hour. She explained that she left that job because it became a full-time position, but she was working only part-time. She also testified that prior to that, she worked as an analyst and administrative assistant and earned $23.50 per hour. "Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today." Andrews v. Andrews, 867 So. 2d 476, 479 (Fla. 5th DCA 2004) (quoting Woodard v. Woodard, 634 So. 2d 782, 782–83 (Fla. 5th DCA 1994) ); see also Zubkin v. Zubkin, 823 So. 2d 870, 871 (Fla. 5th DCA 2002) (holding trial court erred in imputing income to former husband based on working five days per week because former husband previously worked five days per week; evidence was that former husband worked four days per week and no evidence was presented that former husband had opportunity to work fifth day or obtain other employment for only one day per week).
Here, Former Husband failed to present any evidence of available jobs that Former Wife would qualify for or the salaries for those jobs. Instead, he relied solely on her testimony regarding her previous jobs and salaries. Accordingly, although competent substantial evidence supported the imputation of income to Former Wife, the record does not contain competent substantial evidence to support the imputation of income to Former Wife at $17.50 per hour because that amount was based solely on her past income. See Andrews, 867 So. 2d at 479.
Lastly, we find that Former Wife failed to demonstrate that the trial court abused its discretion in denying her request for attorney's fees. See Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980). Although her brief included an extensive argument about her need for fees, Former Wife did not point to any record evidence that Former Husband had an ability to pay those fees. As stated, at trial, she recognized that Former Husband did not have any more ability to pay her attorney's fees than she had to make an equalizing payment to him. Our review of the record also reveals that after payment of monthly alimony and child support, Former Husband lacks the ability to contribute to Former Wife's attorney's fees. Additionally, Former Wife failed to point to any record evidence related to the reasonableness of her attorney's fees. She admittedly used marital assets to pay her first attorney's fees, which were approximately $100,000; her trial counsel described those fees as "exorbitant." Furthermore, Former Wife's trial counsel testified to his hourly rate and retainer fee but did not present any evidence of the hours expended on her case.
Accordingly, we reverse the portion of the amended final judgment requiring Former Wife to make an equalizing payment to Former Husband. We also reverse the imputation of income to Former Wife at $17.50 per hour and remand for an evidentiary hearing limited to the issue of Former Wife's current earning ability. Following that hearing, alimony and child support should be adjusted accordingly, if necessary. We affirm in all other respects.
To be clear, the trial judge in this case did an exceptional job of resolving difficult issues relating to the care and well-being of the parties' children. The issues on appeal represented but a fraction of the rulings made in this case.
AFFIRMED IN PART; REVERSED IN PART, and REMANDED.
WALLIS and EDWARDS, JJ., concur.