Adam Justin Steele v. Charity Noel Love , 143 So. 3d 1020 ( 2014 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
July Term 2014
ADAM JUSTIN STEELE,
Appellant,
v.
CHARITY NOEL LOVE,
Appellee.
No. 4D12-3507
[July 23, 2014]
Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Amy Smith, Judge; L.T. Case No.
502011DR009631XXXXNB.
Robin Bresky of Law Offices of Robin Bresky, Boca Raton, for appellant.
Martin L. Haines, III of Martin L. Haines, III, Chartered, Lake Park, for
appellee.
MAY, J.
A former husband appeals a final judgment of dissolution. The former
wife cross-appeals. We affirm on all issues in both the appeal and cross-
appeal, but write to address the imputation of income to each of the
parties.
On the direct appeal, the former husband argues the trial court erred
in using the amount of money he receives from his parents to impute
income to him. We review imputation of income for child support purposes
based on whether it is supported by competent, substantial evidence.
Brown v. Cannady-Brown, 954 So. 2d 1206, 1207 (Fla. 4th DCA 2007).
We find the trial court’s imputation of income was supported by
competent, substantial evidence.
Section 61.30(2)(a)(13), Florida Statutes (2012), specifically lists
“[r]eimbursed expenses or in kind payments to the extent that they reduce
living expenses” as gross income to be considered in determining child
support. Generally, gifts received from a party’s parents are irrelevant for
child support determination. Vorcheimer v. Vorcheimer, 780 So. 2d 1018,
1019 (Fla. 4th DCA 2001) (citing Shiveley v. Shiveley, 635 So. 2d 1021(Fla. 1st DCA 1994)). However, regular periodic payments to a child by a
parent are considered income for child-support determination. Ordini v.
Ordini, 701 So. 2d 663, 666 (Fla. 4th DCA 1997) (citing Cooper v. Kahn,
696 So. 2d 1186 (Fla. 3d DCA 1997)).
Here, the former husband was unemployed but was starting a business
that had not yielded any income. His parents paid for his living expenses
for the nineteen months between the filing of the petition for dissolution of
marriage and the trial. In the former husband’s first financial affidavit, he
listed $3,000 in recurring monthly income from his parents. He confirmed
this income in a later deposition. On the day of trial, the former husband
filed an amended financial affidavit, attesting that he receives $2,600 in
non-permanent recurring monthly income from his parents.
While the former husband’s father testified that he may not be able to
continue these payments indefinitely, he and his wife would continue to
support his son as long as they could. They wanted to insure their son
and granddaughter were healthy and happy, and had a safe and secure
environment in which to live. The evidence therefore supported the trial
court’s imputation of $2,600 in income to the former husband.
The former husband next argues that the trial court erred in its
imputation of income to the former wife. Specifically, he argues that the
court erred in imputing a minimum-wage hourly rate for forty hours of
work per week because, although she works only part-time, the former
wife’s actual hourly rate of compensation was higher than minimum wage.
The former husband also argues that the court omitted significant, regular
income the former wife receives from other family-owned companies. The
former wife agrees that she receives $450 monthly interest income, which
the trial court did not consider, but disputes any other consistent income.1
She argues that the amount of imputed income is actually slightly higher
than her actual income, including the monthly $450.
In determining child support, a court “may only impute a level of
income supported by the evidence of . . . probable earnings based on,”
among other things, the history of income. Alich v. Clapp, 926 So. 2d 467,
468 (Fla. 4th DCA 2006) (citing Konsoulas v. Konsoulas, 904 So. 2d 440,
1We find no error in the court’s refusal to impute additional income to the former
wife from other family-owned businesses. The testimony reflected income in
2009, 2010, and 2011, but no evidence that the former wife would continue to
receive that income in the future.
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443 (Fla. 4th DCA 2005)). The court’s determination must be supported
by competent, substantial evidence, not “outdated income figures.” Id.(citing § 61.30(2)(b), Fla. Stat. (2001), and Wendel v. Wendel, 852 So. 2d
277, 284 (Fla. 2d DCA 2003)).
Here, the former wife worked at a school every other week. The court
found that the former wife had not worked full-time since the parties
separated because she had custody of their child every other week. The
former husband failed to establish that she was voluntarily
underemployed. Based on her part-time work schedule and the $450
monthly interest income, her actual monthly income is nineteen dollars
less than the income imputed to her by the court. While there may have
been a technical error in the court’s imputation of income to the former
wife, the error was favorable to the former husband and is of such a
negligible amount that we affirm.
Affirmed.
DAMOORGIAN, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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