Opinion
Case No. 2D19-1437
06-24-2020
Jeffery TUTT, Appellant, v. Tymesia HUDSON, Appellee.
Jane H. Grossman, St. Petersburg, (withdrew after briefing), for Appellant. Theodore J. Rechel and Deborah M. Schmitt of Rechel & Associates, P.A., Tampa, for Appellee.
Jane H. Grossman, St. Petersburg, (withdrew after briefing), for Appellant.
Theodore J. Rechel and Deborah M. Schmitt of Rechel & Associates, P.A., Tampa, for Appellee.
MORRIS, Judge.
Jeffrey Tutt, the former husband, appeals an order modifying a final judgment of dissolution of marriage. He makes several challenges on appeal; we find merit in two of his challenges and reverse and remand for further proceedings on those issues.
On appeal, the former husband contends that the trial court erred in imputing income to him in the amount of $500 per day, retroactive to 2017, for purposes of child support. He argues that there was no competent, substantial evidence that he is voluntarily underemployed or that he could earn $500 per day, or $125,000 per year, operating a limousine business.
In this regard, the trial court found as follows:
The Court finds, based on the Former Husband's own testimony in court at the November 1, 2018 hearing, that Former Husband is capable of making $500.00 per day, and the Former Husband is voluntarily underemployed. The average work year is 50 weeks or 250 days. Therefore, the Former Husband is capable of making $125,000 per year. The vocational evaluator testified that Former Husband's expected annual income from real estate the first year is $65,697, and using the same criteria for year two (2), Mr. Tutt's (Former Husband's) expected annual income from real estate is $143,517.00. The imputation of the Former Husband's income, $125,000.00, falls between the income testified to by the vocational evaluator. Based on the Former Husband's entrepreneurial skills as testified to by him, the Court finds that he is perfectly capable of making at least $125,000.00 per year.
The trial court imputed this income to the former husband starting in June 2017 and recalculated child support from that date using that amount.
"Generally, a court may impute income if a spouse is earning less than he could, if there is a showing that he has the capability of earning more by using his best efforts." Nicholas v. Nicholas, 870 So. 2d 245, 247 (Fla. 2d DCA 2004). Section 61.30(2)(b), Florida Statutes (2017), provides in relevant part:
Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment 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. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.
"As a general rule, where we have upheld the trial courts' imputation of income, the spouse had a track record of having earned the imputed amount." Hinton v. Smith, 725 So. 2d 1154, 1157 (Fla. 2d DCA 1998). "[I]ncome may not be imputed at a level which the former spouse has never earned, absent special circumstances." Id. (quoting Stein v. Stein, 701 So. 2d 381, 381 (Fla. 4th DCA 1997) ). A trial court's imputation of income must be supported by competent, substantial evidence. Schlagel v. Schlagel, 973 So. 2d 672, 675 (Fla. 2d DCA 2008).
During the marriage, the former husband was a stay-at-home father while the former wife worked as a physician. The parties divorced in 2016. During the last year of marriage, the former husband obtained his real estate license. After the divorce, he started driving for Uber and Lyft. At the time of the first hearing in November 2018, the former husband was on track to earn $38,000 for 2018 as a driver, according to the former wife's vocational expert. The former husband explained that driving had allowed him to network:
Now, I'm around a lot of different people from all walks of life now, which I wasn't there before. ... Basically being out here doing Uber and Lyft, I'm creating [a networking circle]. I'm passing my card out to everybody. I'm in a lot better situation than I was two years ago. Two years ago I didn't know anybody. I was a stay-at-home father. Had no friends. Had no networking circle. It's sort of hard to sell a house and be a realtor where you don't know anybody.
The former husband testified that he would like to start a limousine business. He thinks he could "make a lot of money" but that it "would take a while to build" the business. He said he could earn about $500 a day, which would only be about ten rides per day. He said he would get out there and network; he is good at networking, and he sees it working out.
According to the former wife's vocational expert, the former husband was underemployed. He scored extremely highly on a sales aptitude test, and he was overqualified for the position of an Uber/Lyft driver based on his education and experiences. The expert testified that the former husband had never earned more than $60,000 per year, but she opined that he could use his real estate license to make more than he was currently earning as a driver, even though he had zero experience as a realtor. She believed that the former husband could earn a combined $103,000 in 2019 using his real estate license and driving for Uber and Lyft and that he could earn $143,517 as a realtor by 2020.
After the trial court announced it was imputing income based on the former husband's testimony that he could earn $500 per day, the former husband objected and said that he only hoped to make that in the future and that he needed "start-up cash." The trial court disagreed, saying that the former husband "could have probably made $125,000 for the past ten, fifteen years."
The trial court's imputation of income in the amount of $125,000 to the former husband starting in 2017 is not supported by competent, substantial evidence. The former husband thought he could earn $500 per day, but it was clear he was referring to an indefinite, future point in time, after he had networked, built his business, and obtained "start-up cash." The former husband had never earned more than $60,000 per year, and although he had spent the last two years (2016 to 2018) networking in the area, there was no evidence that he could have earned $125,000 in 2017 operating a limousine or driving business. See Roth v. Roth, 973 So. 2d 580, 590 (Fla. 2d DCA 2008) (holding that trial court erred imputing income to the former husband in the amount of $150,000 per year where the evidence showed that he had earned $104,000 in his best year and the former wife failed to "establish any ‘special circumstances' that would permit the trial court to impute income at a level never earned by the" former husband). In further support of its ruling, the trial court noted the expert's testimony that the former husband could earn a higher salary as a realtor. But the expert testified that the former husband was capable of earning $109,000 in 2019 and $143,000 in 2020; thus, her testimony does not support the trial court's imputation of income in the amount of $125,000 for 2017. While the former husband may have been voluntarily underemployed in 2017 and may have been capable of earning more than $38,000 per year, there is no competent, substantial evidence to support a finding that he could have earned $125,000 per year starting in 2017. Accordingly, we must reverse the portion of the order relating to the former husband's imputed income. We also find merit in the former husband's argument that the trial court erred in failing to make findings regarding the former husband's "contentiousness" for purposes of attorney's fees.
The trial court made the following statements in the written order:
K. Former Husband's counsel presented his fee affidavit and testified as to the Former Husband's attorney's fees and costs. The Court finds that it would be error not to have the Former Wife contribute to the Former Husband's attorney's fees. However, taking into account Former Husband's contentiousness, which did make litigation longer and more difficult, the Court limits Former Wife's contribution to Former Husband's attorney's fees to $2,500.00.
In a dissolution case, "the trial court must look to each spouse's need for suit money versus each spouse's respective ability to pay." Arena v. Arena, 103 So. 3d 1044, 1046 (Fla. 2d DCA 2013) (quoting Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) ). "A trial court may also consider ‘any factor necessary to provide justice and ensure equity between the parties.’ " Id. (quoting Rosen, 696 So. 2d at 700 ). Such factors include "the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation." Rosen, 696 So. 2d at 700. "After considering all applicable factors, the trial court must then make specific findings of fact—either at the hearing or in the written judgment—supporting its determination of entitlement to an award of attorney's fees and the factors that justify the specific amount awarded." Arena, 103 So. 3d at 1046.
Where a trial court intends the fee award to be a sanction for a party's actions, the fee order must contain sufficient findings to support the trial court's decision. Arena, 103 So. 3d at 1047. "[T]he court must make findings that support the reduction or enhancement factors set out in Rosen and must explain what portion of the fees incurred was ‘occasioned by [the party's] misconduct.’ " Perez v. Perez, 100 So. 3d 769, 773 (Fla. 2d DCA 2012) (quoting Gagnon v. Gagnon, 539 So. 2d 1179, 1179 (Fla. 1st DCA 1989) ). Here, the trial court found that the former wife should pay the former husband's fees but then limited those fees based on the former husband's "contentiousness, which did make litigation longer and more difficult." However, the trial court did not make any findings, at the hearing or in its order, explaining what portion of the former husband's fees were occasioned by his misconduct. Accordingly, we must reverse on this issue.
The former husband challenges the trial court's failure to make findings as to hours and rate for purposes of attorney's fees. While we note that the trial court accepted the former husband's attorney's affidavit as to these matters to the benefit of the former husband and his attorney, we remind the trial court that it is required to make findings regarding the hours reasonably expended and the reasonableness of the hourly rate charged. See Harris v. McKinney, 20 So. 3d 400, 403 (Fla. 2d DCA 2009) ; Markovich v. Markovich, 974 So. 2d 600, 601 (Fla. 2d DCA 2008).
In sum, we reverse the order modifying the final judgment of dissolution as the order relates to the amount of income imputed to the former husband and the award of attorney's fees based on the former husband's contentiousness. We remand for further proceedings on those issues consistent with this opinion. We affirm the order in all other respects. Affirmed in part; reversed in part; remanded.
NORTHCUTT and SILBERMAN, JJ., Concur.