November 8, 2021

Bresky Law Obtains Reversal of Post-Judgment Order Imputing Client High Income and Granting Upward Modification of Child Support

October 27, 2021*

Bresky Law recently obtained reversal of a post-judgment order in a paternity proceeding. The order imputed a high income to our client (the father) and granted an upward modification of his child support obligation based on that imputed income. 

The trial court previously entered a final judgment that ratified the parties’ settlement agreements. In the settlement agreements, the parties agreed upon the amounts of their respective incomes at the time. Our client also agreed to pay child support in an amount that exceeded the amount under the guidelines.

The father later lost his high-paying job due to alleged misconduct. He was unable to find another position in the same field despite his best efforts. The father relocated to another state and started his own business in an entirely different field. He filed a petition for modification of child support alleging a substantial change of circumstances in the termination of his employment and also that his new business venture was not yet producing income. The mother filed a motion for contempt and also requested modification of parental responsibility, timesharing, and child support.

A hearing occurred before a magistrate. Over the father’s hearsay objection, the mother introduced into evidence a vocational assessor’s report that stated the father could obtain employment paying compensation similar to or greater than what he previously earned in the position from which he was terminated. The magistrate issued a report and recommendation finding the father could earn an amount similar to that stated in the vocational assessor’s report. The trial court adopted and incorporated the magistrate’s report into a final order and imputed income the same as the father had earned prior to his termination.

Bresky Law represented the father in the Fourth District Court of Appeal (“Fourth DCA”) in the appeal from the post-judgment order. We argued that the trial court erred in imputing income to the father based upon the vocational assessor’s report, which was hearsay. 

The Fourth DCA took the opportunity to use our arguments to explain this often-confusing area of law. The Fourth DCA discussed the two-step analysis that applies to imputation of income to a party on the basis of voluntary unemployment or underemployment. The Fourth DCA noted that “[a] party’s loss of employment due to misconduct is sufficient to support a finding that the termination of income was voluntary” and that there is no requirement of a finding that the voluntarily unemployment or underemployment is intended to avoid paying child support. 

However, the second step in the analysis requires the court to determine whether any subsequent unemployment or underemployment resulted from the party’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Furthermore, the imputed level of income must be supported by evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. The party seeking to impute income bears the burden of identifying the amount and source of the imputed income through evidence of income from available employment. Quoting Chipman v. Chipman, 975 So. 2d 603, 609 (Fla. 4th DCA 2008), the court stated: “Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay.”

The Fourth DCA agreed with Bresky Law’s argument that the vocational assessor’s report could not be considered as evidence because it was classic hearsay. That report, admitted although the assessor did not testify, was the only evidence the mother offered to establish the father’s employment potential. As a result, the Fourth DCA concluded that the trial court’s findings that the father’s subsequent underemployment resulted from his pursuit of his own interests or a less-than-good-faith effort to find comparable employment were not supported by competent, substantial evidence.  

The Fourth DCA reversed the erroneous imputation of income to the father and the upward modification of child support. The Fourth DCA also conditionally granted our client appellate attorney’s fees. This favorable result for our client prevents him from being forced to pay an amount of child support that he cannot afford. 

* Not final until disposition of timely filed motion for rehearing.