How is income imputed to a spouse that's not working?

In the case of Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3rd DCA 2010), the appellate court gives us guideance on how to correctly impute income to a wife that has raised children and supported her husband during a marriage:

            The trial court, when determining the amount of alimony that the Husband should pay in a modification case, imputed $18,000 in income to the Wife. This was the same amount that the parties agreed to impute to her in 2002 in their Marital Settlement Agreement. On appeal, the District Court held that because the "projected and estimated" income imputed to the Wife in the marital settlement agreement did not come to fruition the amount should not have been imputed to her:

1. "There is no dispute that [the Wife] is currently unemployed and has engaged in no meaningful employment since the parties' divorce in 2002. The undisputed record is, therefore, that her current income in $0. Rather than using that number as a basis for determining need and thus the amount of alimony [the Husband] should currently pay, the court below imputed $18,000 in income to [the Wife], which is the amount the parties agreed to impute to her in 2002 when they executed their marital settlement agreement ."

2. "The record in this case is that while [the Wife] has both a college degree and a real estate license, she has not held meaningful full-time employment since the 1970's. The last meaningful part-time employment she enjoyed was in [the Husband's] law office where she assisted in real estate related work." 

3. "[The Wife] has sold only two properties as a real estate agent and has spent most of her time assisting the parties' disabled son. Other than this, there is no evidence that, now at age 58 and many years outside the workplace, [the Wife] is employable except as a real estate agent. As to this (or for that matter any other) line of work, there is no evidence whatsoever as to the current job market or as to the prevailing earnings level for such agents in the community where [the Wife] lives. Absent such evidence, income could not be imputed to her."

4. "The amount imputed to [the Wife] in the 2002 marital settlement agreement, as the agreement itself confirms, did not represent her actual income, but represented no more than an estimate of potential future earnings…. As we know, the 'projected and estimated' income imputed to [the Husband] in this agreement did not come to fruition; nor, as the record confirms, did [the Wife's]. This estimate should not, therefore, have been attributed to her now for the purpose of determining either alimony or child support."

Can a traditional yearly gift from grandparents be used in calculating child support?

In the case of Palumbo v. Butler, 26 So.3d 723 (Fla. 2nd DCA 2010), the appellate court ruled that is was :

ERROR TO INCLUDE IN HUSBAND'S INCOME FOR PURPOSE OF CALCULATING CHILD SUPPORT, ANTICIPATED ANNUAL FINANCIAL GIFTS WHICH HUSBAND'S MOTHER HAD HISTORICALLY MADE TO MINOR CHILDREN FOR THEIR EDUCATION. 

The trial judge added $22,000 per year to the husband's income to calculate his child support obligation. The court reasoned that these gifts were regular and would continue. The District Court reversed: 

1. "[The husband]…does not control his mother's largesse. His mother testified that she anticipated making future gifts, depending on the economy, her health, and her family needs."

2. "In past years, she gave the children's money directly to [the husband], earmarking it for school tuition. But, well before the final hearing, she began paying the school directly."

3. "On the record before us, [the wife] properly concedes that the anticipated gifts should not have been included with Mr. Butler's income." 

            The reasoning for this is that grandparents can change their mind at any time regarding their gifts.  They could have a financial emergency, medical emergency, or simply decide to spend some of their own money.  The parent paying child support would be caught in a "trap" requiring him to pay support from income he doesn't receive.  Hopefully, grandparents will help pay for schooling, but that is a personal choice that the courts can't get involved it.  If every case was micromanaged, the courts could not function in a efficient manner.

When the parents live in different states, who pays for the kid's travel?

In the case of Hindle v. Fuith, 33 So.3d 782 (Fla. 5th DCA 2010)  the court ruled:

TRIAL COURT ERRED IN ORDERING FATHER TO BEAR THE ENTIRE COST OF VISITATION; TRANSPORTATION EXPENSES SHOULD BE SHARED BY PARENTS IN ACCORDANCE WITH FINANCIAL MEANS; EXPENSE OF VISITATION IS A CHILD-REARING EXPENSE "LIKE ANY OTHER." 

The Father appealed from a final judgment of paternity which determined that the Florida courts had subject matter jurisdiction over the parties' custody dispute concerning the parties' eight-year-old daughter; granted custody of the child to the mother, ordered monthly child support; and placed the burden of visitation costs entirely on the father. With regard to the court's requirement that the Father bear all of the costs of visitation, the District Court held:

1. "The [parties'] child was born in the United Kingdom where the father resides and removed to Florida by the mother's unilateral decision. The trial court ruled that the father can only visit the child in Florida, thereby incurring substantial travel expenses to effectuate his visitation."

2. "The expense of visiting the child in Florida from the father's residence in the United Kingdom is a childrearing expense like any other. Child support guidelines provide that transportation expenses, like other childrearing costs, should be shared by the parents in accordance with their financial means.

What this case means is that when there are substantial travel expenses, each parent should share the cost of travel.  This is calculated on the child support guidelines and based on the income of each parent.  Both parents should be in a child's life and the court has recognized this.

Does my ex have to pay for private school for the kids?

The court ruled in Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010) that it was :

ERROR TO REQUIRE HUSBAND TO PAY CHILDREN'S PRIVATE SCHOOL TUITION WHERE WIFE'S COUNTER-PETITION DID NOT CONTAIN REQUEST FOR TUITION, HUSBAND DID NOT AGREE TO PAY AND COURT DID NOT MAKE FINDINGS AS TO ABILITY TO PAY AND WHETHER SUCH EXPENSES WERE IN ACCORD WITH CUSTOMARY STANDARD OF LIVING AND IN THE CHILDREN'S BEST INTERESTS. 

The trial court directed the Former Husband to pay the minor children's private school tuition. The District Court reversed: 

1. "A court may order a non-custodial parent to pay for private educational expenses if it finds that the parent has the ability to pay for private school and the expenses are in accordance with the family's customary standard of living and are in the child's best interest."

2. "Former Husband contends that the trial court improperly ordered him to pay the children's private school tuition because Former Wife did not plead for the award and the trial court failed to make requisite findings of fact…."

3. "Former Wife's counter-petition did not contain a request for payment of private school tuition. Moreover, there is no record evidence establishing that Former Husband agreed to pay the tuition. Finally, the court did not make the requisite findings as to whether Former Husband has the ability to pay the tuition, and whether the private school expenses are in accordance with the family's customary standard of living and are in the children's best interest."

What is requird to hold spouse in contempt for not paying?

In the case of Aburos v. Aburos, 34 So.3d 131 (Fla. 3rd DCA 2010), the Court held there was no competent evidence that the Former Husband had the present ability to pay the purge condition.

The Husband was ordered to pay alimony of $1,700 per month and child support of $1,693 monthly as well as the $70,000 second mortgage on the former marital residence awarded to the Wife. In 2001, the Husband was held in contempt for failing to make the required payments, failing to attend a hearing, willfully fleeing the court's jurisdiction by moving to Israel and dissipating marital assets. The Husband was ordered to recover funds from an account he had improperly transferred to his sister.  In 2007, the Wife moved for contempt. Three hearings were held where the Husband testified that he worked at his sister's jewelry shop for approximately $2,000 per month and had access to the store's bank account (containing $25,000), although all transactions not considered "day-to-day" required the approval of his sister. The Wife testified that the Husband was a talented jewelry designer who used to make $100,000 per year and had the ability to earn more than his present income. The court found that the Husband had complete dominion over the operation of the store, including access to its bank account. The court issued a civil contempt order containing a purge provision in the amount of $25,000 and ordered that the husband be taken into custody. The District Court reversed:

"In the present case, the magistrate found the former husband's testimony not credible, but that does not excuse the requirement to identify an appropriate source of funds from which he could pay the purge amount."

Can income be imputed to a Former Spouse in a supplemental petition?

In the case of Schmachtenberg v. Schmachtenberg, 34 So.3d 28 (Fla. 3rd DCA 2010), the court stated on a modification action, income can't be imputed to the Former Wife based on an agreement from an eight year old agreement from the divorce.

The trial court, when determining the amount of alimony that the Husband should pay in a modification case, imputed $18,000 in income to the Wife. This was the same amount that the parties agreed to impute to her in 2002 in their Marital Settlement Agreement. On appeal, the District Court held that because the "projected and estimated" income imputed to the Wife in the marital settlement agreement did not come to fruition the amount should not have been imputed to her:

1. "There is no dispute that [the Wife] is currently unemployed and has engaged in no meaningful employment since the parties' divorce in 2002. The undisputed record is, therefore, that her current income in $0. Rather than using that number as a basis for determining need and thus the amount of alimony [the Husband] should currently pay, the court below imputed $18,000 in income to [the Wife], which is the amount the parties agreed to impute to her in 2002 when they executed their marital settlement agreement ."

            2. "The record in this case is that while [the Wife] has both a college degree and a real estate license, she has not held meaningful full-time employment since the 1970's. The last meaningful part-time employment she enjoyed was in [the Husband's] law office where she assisted in real estate related work."

3. "[The Wife] has sold only two properties as a real estate agent and has spent most of her time assisting the parties' disabled son. Other than this, there is no evidence that, now at age 58 and many years outside the workplace, [the Wife] is employable except as a real estate agent. As to this (or for that matter any other) line of work, there is no evidence whatsoever as to the current job market or as to the prevailing earnings level for such agents in the community where [the Wife] lives. Absent such evidence, income could not be imputed to her."

4. "The amount imputed to [the Wife] in the 2002 marital settlement agreement, as the agreement itself confirms, did not represent her actual income, but represented no more than an estimate of potential future earnings…. As we know, the 'projected and estimated' income imputed to [the Husband] in this agreement did not come to fruition; nor, as the record confirms, did [the Wife's]. This estimate should not, therefore, have been attributed to her now for the purpose of determining either alimony or child support."

Should you use marital money to pay down a non-maritla mortgage?

In the case of Valladares v. Junco-Valladares, 30 So.3d 519 (Fla. 3rd DCA 2010), the court ruled as follows:

BY AWARDING WIFE EQUALIZATION PAYMENT BASED ON PAY-DOWNS MADE ON MORTGAGES ON MARITAL HOME TITLED IN HUSBAND'S NAME AND ALSO CONSIDERING THE SAME PAY-DOWNS IN ITS RATIONALE TO AWARD WIFE LUMP SUM ALIMONY BASED ON MARITAL CONTRIBUTIONS SHE MADE TO A NON-MARITAL ASSET, COURT ESSENTIALLY "DOUBLE-DIPPED."

The trial court awarded the wife $1.25 million as a lump sum alimony award, based on the marital contributions she made to the husband's non-marital asset (the former marital residence), as well as the appreciation of those contributions. But, the trial court also awarded the wife $173,469 as an equitable distribution award based on the same contributions. The District Court reversed the equitable distribution award:

1. "The trial court considered the forensic accountant figures [as to mortgage pay-downs] in calculating an equitable distribution award of $173,469 to the wife. However, the trial court also considered those same figures in its rationale to award the wife $1.25 million as a lump sum alimony award, based on the marital contributions she made to the non-marital asset, as well as the appreciation of those contributions."

2. "At issue are the pay-downs on the three mortgages on the residence. Consequently, the equitable distribution award of $173,469 partially allows the wife to essentially double-dip from her contributions to this asset and is error."

3. "Therefore, the $174,469 equitable distribution award must be recalculated by eliminating the mortgage pay-downs from the calculation."