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Date: 01-28-2022
Case Style:
JERRA N. GILLESPIE, f/n/a JERRA N. HOLDSWORTH v. SCOTT HOLDSWORTH
Case Number: 2D20-3429
Judge: Edward LaRose
Court:
DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT
On appeal from The Circuit Court for Collier County
Plaintiff's Attorney:
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Defendant's Attorney: Michael M. Shemkus
Description:
Lakeland, FL - Divorce lawyer represented Appellant appealing modification of timesharing and child support.
In 2010, the trial court dissolved Former Wife's marriage to
Scott Holdsworth (Former Husband). They have two children.2
The
final judgment required Former Husband to pay $1,700 per month
in child support. The trial court awarded Former Wife majority
timesharing; Former Husband was in the merchant marine and was
at sea for months at a time.
Former Wife repeatedly, albeit unsuccessfully, moved the trial
court to allow her to move to Missouri with the children. Most
recently, in September 2018, Former Wife filed a "Verified
Supplemental Petition for Relocation," requesting permission to
relocate with the children to Missouri. The trial court denied the
1
We affirm the supplemental final judgment in all other
respects.
2
Their elder child attained majority during the pendency of
this appeal.
3
petition in a June 2019 order. By the time of that order, Former
Wife had already quit her teaching job in Marco Island, pulled up
stakes, and moved to Missouri. She secured a full-time substitute
teaching position in Fairgrove, Missouri, earning $57,600 per year.
While teaching in Marco Island, Former Wife earned as much as
$78,000 annually.
Several months after relocating, Former Wife petitioned to
modify the parenting plan. She requested a long-distance parenting
plan. In his counterpetition, Former Husband, who remained in
Florida, sought "the bulk of parenting time," termination of his
ongoing child support obligation, and establishment of a child
support obligation for Former Wife. Through mediation, the parties
agreed to a parenting schedule. They left the issue of child support
to the trial court.
The trial court held an evidentiary hearing in June 2020.3
Former Husband asked the trial court to find that Former Wife was
3
The hearing was consolidated; the trial court received
identical argument and evidence concerning Former Wife's second
marriage. On appeal, we reversed the trial court's imputation of
income to Former Wife. See Gillespie v. Minning, 46 Fla. L. Weekly
D2355 (Fla. 2d DCA Nov. 3, 2021).
4
voluntarily underemployed and impute to her an annual income of
$78,000. Former Wife acknowledged that she voluntarily resigned
her Marco Island teaching position. At the time of the hearing,
Former Wife had contracted for a teaching position in Springfield,
Missouri. The position paid roughly $57,600 annually. Former
Wife detailed her unsuccessful efforts to secure a more lucrative
teaching position.
At the conclusion of the hearing, the trial court announced
that it was imputing $78,000 of income to Former Wife. In doing
so, the trial court observed
that the relevant factual context is not Missouri, because
to find that way would allow former spouses and parents
to just move anywhere they wanted to regardless of what
their abilities to earn in those places were. That is
exactly what has occurred here. From the beginning of
the case . . . [Former Wife] has evidenced a pattern of
wanting to move and not really that much regard for
what the consequences to the children are. Child
support is for the children.
Analysis
I. The Lack of Available-Jobs Evidence
Former Wife asserts that the trial court improperly imputed
income "without receiving evidence of jobs currently available" in
her new community. We agree.
5
We begin with the relevant statutory authority:
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.
§ 61.30(2)(b), Fla. Stat. (2019). "Imputing income is a two-step
analysis: '(1) the determination of whether the parent's
[unemployment or] underemployment was voluntary, and (2) if so,
the calculation of imputed income.' " Cash v. Cash, 122 So. 3d 430,
434 (Fla. 2d DCA 2013) (quoting Bator v. Osborne, 983 So. 2d 1198,
1200 (Fla. 2d DCA 2008)).
Former Wife voluntarily resigned her Marco Island teaching
position. See generally Crespo v. Watts, 301 So. 3d 1110, 1111-12
(Fla. 1st DCA 2020) ("In order to determine whether a parent's
unemployment is voluntary, the court applies a two-step process:
(1) whether the termination of employment was voluntary, and
(2) whether the unemployment resulted from the parent's pursuit of
6
her own interests or through the less-than diligent and bona fide
efforts to find employment at or higher than her former
employment." (citing Wood v. Wood, 162 So. 3d 133, 136 (Fla. 1st
DCA 2014))). But that fact, alone, does not mandate imputation of
income. See Wood, 162 So. 3d at 136 ("The trial court abused its
discretion by imputing income to the former wife solely because she
voluntarily left her new employment after only one month.").
Rather, we must analyze Former Wife's job-seeking efforts as
well as her "employment potential and probable earnings level . . .
based upon . . . her recent work history, occupational
qualifications, and prevailing earnings level in the community."
§ 61.30(2)(b); see Wood, 162 So. 3d at 136 ("[W]hile a parent's
motive in voluntarily quitting a job is relevant, it is but one factor in
the determination of whether income should be imputed. Even if
the parent leaves a job unwisely, ill-advisedly, or motivated by
frustration or spite, the voluntary nature of her continued
unemployment must be shown with proof that she is not making
diligent, bona fide efforts to obtain reemployment." (first citing
Brown v. Cannady-Brown, 954 So. 2d 1206, 1207-08 (Fla. 4th DCA
2007); and then citing Ensley v. Ensley, 578 So. 2d 497, 499 (Fla.
7
5th DCA 1991))). Former Husband, as the one seeking imputation
of income, carried the burden of proof. See Torres v. Torres, 98 So.
3d 1171, 1172 (Fla. 2d DCA 2011) ("The Wife, as the party asserting
that the Husband was voluntarily unemployed and that income
should be imputed to him, had the burden of proof." (citing Burkley
v. Burkley, 911 So. 2d 262, 268 (Fla. 5th DCA 2005))).
Our careful review of the record shows that Former Husband
dropped the ball. See Roth v. Roth, 973 So. 2d 580, 590 (Fla. 2d
DCA 2008) ("The decision to impute income and the determination
of the amount of income to be imputed must be based on
competent, substantial evidence presented at an evidentiary
hearing." (first citing Wendel v. Wendel, 852 So. 2d 277, 283 (Fla.
2d DCA 2003); and then citing Ritter v. Ritter, 690 So. 2d 1372,
1374 (Fla. 2d DCA 1997))). Courts "have required particularized
findings regarding work history, occupational qualifications, and
the current job market in the community to support the imputation
of income. Failure to make these findings results in reversal."
Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA 2015) (citing
Griffin v. Griffin, 993 So. 2d 1066, 1068 (Fla. 1st DCA 2008)). There
are no such findings in our record. See, e.g., Heard v. Perales, 189
8
So. 3d 834, 836 (Fla. 4th DCA 2015) (reversing the imputation of
income where "the trial court did not make any findings regarding
the mother's diligence or lack thereof in seeking employment.
Findings as to both steps are necessary in imputing income").
Former Husband limited his evidence to Former Wife's work history
in Marco Island. Too little. See Thompson v. Malicki, 169 So. 3d
271, 273 (Fla. 2d DCA 2015) ("Reliance on past work history alone
is insufficient to support imputation of income." (citing Broga, 166
So. 3d at 187)).
Implicit in the burden borne by Former Husband is the
requirement that he present evidence that there are, indeed,
available jobs. See Jorgensen v. Tagarelli, 312 So. 3d 505, 507 (Fla.
5th DCA 2020) ("As the party seeking to impute income, Former
Husband bears the burden to show 'both employability and that
jobs are available.' " (quoting Dottaviano v. Dottaviano, 170 So. 3d
98, 100 (Fla. 5th DCA 2015))); Durand v. Durand, 16 So. 3d 982,
985 (Fla. 4th DCA 2009) ("The spouse claiming income should be
imputed to the unemployed or underemployed spouse bears the
burden of showing both employability and that jobs are available."
(emphasis added)). A lack of job prospects does not serve the
9
purpose underlying imputation of income. See Durand, 16 So. 3d
at 985 ("A court may impute income when one spouse has failed to
use his best efforts to obtain income, perhaps by arranging his
financial affairs and employment to shortchange the payee." (citing
Leonard v. Leonard, 971 So. 2d 263, 265 (Fla. 1st DCA 2008))); see
also Swain v. Swain, 932 So. 2d 1214, 1215 (Fla. 1st DCA 2006)
("For the purpose of determining child support and alimony, the
trial court may impute income to the former spouse upon a finding
that he or she is voluntarily unemployed or underemployed due to
the pursuit of his or her own interests, or a less than diligent effort
to find employment paying at a level equal to that formerly enjoyed."
(first citing Andrews v. Andrews, 867 So. 2d 476, 478 (Fla. 5th DCA
2004); and then citing § 61.30(2)(b), Fla. Stat. (2003))).
Former Husband presented no evidence that there were
"available employment opportunities," in Fairgrove, Missouri, "for
which [Former Wife] was qualified," paying an annual salary of
$78,000. Andrews, 867 So. 2d at 478 (reversing imputed income
because former husband "failed to establish by testimony or
evidence a range of salaries being paid for current and available
employment opportunities in the [relevant geographical] area for
10
which [former wife] was qualified"); see Holder v. Lopez, 274 So. 3d
518, 521 (Fla. 1st DCA 2019) ("[T]he trial court erred in failing to
base imputation on specific evidence of available jobs appropriate to
Former Husband's experience and physical limitations, how much
they would pay, and other pertinent factors such as competition for
such jobs in the relevant marketplace."); Stebbins v. Stebbins, 754
So. 2d 903, 909 (Fla. 1st DCA 2000) ("If community income is to be
used in setting imputed income, then it seems only reasonable and
logical that the test for an adequate job search should be limited to
the area of the person's resident community.").
In Heard, 189 So. 3d at 835-36, for example, the Fourth
District reversed an order denying child support, concluding that
the trial court erred in imputing income to the mother. There, the
evidence failed to indicate that "the mother's subsequent
unemployment resulted from less than diligent and bona fide efforts
to find employment. The father did not introduce any evidence as
to the mother's employability and the availability of jobs." Id. at 836
(emphasis added). Here, the crux of Former Husband's case rested
upon the suggestion that Former Wife quit her Marco Island job,
without any comparable employment lined up in Fairgrove, to
11
pursue her self-interests in Missouri. This is legally insufficient.
As the above authorities make clear, the imputation of income
under Florida law requires more than simply finding a party's
unemployment or underemployment to be voluntary; it requires
consideration of Former Wife's bona fide efforts to regain
employment, and a finding that available jobs exist.
II. The Absence of Earnings Level Evidence
Former Wife asserts that the trial court incorrectly imputed
income "without receiving the requisite evidence of the prevailing
earnings level in her community . . . Fairgrove, Missouri." Again,
we agree.
As noted above, the trial court must consider "the employment
potential and probable earnings level of the parent . . . based
upon . . . her recent work history, occupational qualifications, and
prevailing earnings level in the community." § 61.30(2)(b) (emphasis
added).
For purposes of section 61.30(2)(b), the relevant "community"
is the one to which Former Wife relocated. See Stebbins, 754 So. 2d
at 909. We see no evidence of jobs in Fairgrove, Missouri, for which
Former Wife qualified, paying $78,000 per year.
12
Williams v. Gonzalez, 294 So. 3d 941 (Fla. 4th DCA 2020), is
instructive. There, the father worked in Doral, Florida, earning
$1,600 per month as a warehouse worker. Id. at 943. He moved to
Charlotte, North Carolina, and, as of the trial date, worked for his
family's business part-time earning $760 a month. Id. The trial
court found that the father was underemployed and imputed a
monthly income of $1,600, "rel[ying] upon the $1,600 per month
that the [f]ather was making while working in Florida in 2018,
rather than the $760 he was currently earning each month in North
Carolina." Id. at 943.
The Fourth District reversed, concluding that once there has
been a finding that a parent is voluntarily underemployed, the trial
court must then assess the parent's employment potential and
probable earnings "based upon his or her recent work history,
occupational qualifications, and prevailing earnings level in the
community." Id. at 944 (quoting Broga, 166 So. 3d at 186). Our
sister district emphasized that "community" means "the community
in which the [f]ather lives and works." Id.; see Rabbath v. Farid, 4
So. 3d 778, 782 (Fla. 1st DCA 2009) ("Before the trial court could
impute income to Appellant, it had to make particularized findings
13
relating to the current job market, Appellant's more recent work
history, his occupational qualifications, and the prevailing earnings
level in the local community where he and his family live." (emphasis
added)). The Fourth District held that the trial court erred in
"imput[ing] income of $1,600 per month . . . as the relevant job
market was Charlotte . . . and no evidence was presented at trial
establishing the [f]ather's earning potential in Charlotte." Williams,
294 So. 3d at 944.
The trial court committed the same error, here. It imputed
income to Former Wife at the rate she previously earned in Florida,
rather than imputing income based upon her earning potential in
her new Missouri community.
Outcome: The trial court's imputation of Former Wife's income is not
supported by competent substantial evidence. We must reverse the
child support award. On remand, the trial court shall hold an
evidentiary hearing and take further evidence in order to make the
necessary findings under section 61.30(2)(b).4
In all other respects,
we affirm.
Plaintiff's Experts:
Defendant's Experts:
Comments: