Imputing Income for Child Support in Florida

Imputing Income for Child Support in Florida

June 14th, 2018 by

Imputing Income on Child Support in FloridaFlorida’s child support statute should be amended to give courts discretion not to impute income to a parent who leaves a high-paying job for a lower-paying job when the change is in the child’s best interests.

Picture it: Mom is a high-earning investment banker. Dad has a high-paying job too, but it doesn’t pay as much as Mom’s. So when they divorce, Mom ends up paying child support to Dad.

As the child grows, Mom realizes she doesn’t have enough time to parent properly because her job demands so much time and energy. She works into the evenings, after the child goes to bed, and on weekends. The pattern is not sustainable, and Mom knows she needs to make a change if she wants to avoid the child being raised by the nanny.

She always liked to teach, and there is a job opening at the local high-school to teach economics. So, she takes it. Now she has summers off, she’s done working at 4:00 pm, and she’s forming the bond she always wanted with her child.

So what’s the problem? The problem is that in most states, including Florida, Mom will be held responsible for paying child support commensurate with her highest earning potential, even though that is not what Mom is actually making. When Mom goes to court and says, “OK, I quit my old job to spend more time with my kid, but I’m making less because I’m working less, so now I need a reduction in the amount of my child support payments pretty please,” the court will likely tell Mom she’s out of luck.

In the world of alimony and child support, this is called imputation of income.

Two-Step Analysis in Imputing Income Decision

In Florida, imputation of income in child support proceedings is controlled by section 61.30(2)(b), Florida Statutes. The statute provides: “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.” FLA. STAT. § 61.30(2)(b) (2014).

Florida courts employ a two-step analysis when deciding whether to impute income to a party in child support proceedings. First, the trial court must determine that termination of employment was voluntary. Dottaviano v. Dottaviano, 170 So. 3d 98, 99 (Fla. 5th DCA 2015). “[S]econd, the court must determine whether the individual’s subsequent unemployment or underemployment resulted from the spouse’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.” Id. (emphasis added) (quoting Ensley v. Ensley, 578 So.2d 497, 499 (Fla. 5th DCA 1991)).

Under section 61.30(2)(b), Florida Statutes, the court’s hands appear to be tied when it comes to Mom. Her underemployment is voluntary and deliberate. The statute says, “shall be imputed,” not “may be imputed.” That means a Florida court probably lacks discretion to decide not to impute income to Mom—even if the court thinks the child is better off because of Mom’s decision.
There is a way up the mountain for Mom in the case law, as explained below. But in this author’s opinion, the plain language of the statute is clear. The legislature should amend the statute to give courts discretion not to impute income under these circumstances.

Passing the “Best Interest” Test

Here’s how Mom should argue it under the current regime. In Overbey v. Overbey, 698 So. 2d 811 (Fla. 1997), the Florida Supreme Court grappled with the issue of imputing income in a child support modification proceeding where the payor sought a reduction in the amount of his payments after he quit his job to attend law school. Id. at 812. The Overbey Court held that when income reduction is a result of a party’s educational pursuits, simply assessing whether the decision is “voluntary” is not the proper test. Id. at 814.

Instead, “the focus should be on whether the temporary reduction will be in the best interests of the recipients.” Id. The Florida Supreme Court’s rationale for eschewing a strictly “voluntary versus involuntary” analysis is that a decision to pursue higher education is always voluntary but may nonetheless be in the child’s best interests. Id.

Mom should argue that the same reasoning supports application of the “best interests” test to a parent’s decision to accept a lower-paying job that allows the parent to spend more time with his or her child. While Overbey was a child support modification case, it has been applied by Florida appellate courts in various contexts outside of child-support modification proceedings. See, e.g., Pribble v. Pribble, 800 So. 2d 743, 746-747 (Fla. 5th DCA 2001) (“While it is arguable that Overbey is limited to modification of child support situations, the better position is that the lower court should not apply section 61.30(2)(b) at all in an initial determination of child support if it determines that a party’s reduction in income due to educational pursuits will ultimately benefit the minor children of the marriage.”); see also Freilich v. Freilich, 897 So. 2d 537, 542 (Fla. 5th DCA 2005) (“In Pribble, we saw no logical reason to confine application of the best interest standard in educational enhancement cases to modification proceedings under section 61.30, and accordingly extended Overbey. Neither do we see any reason to restrict the best interest standard to child support issues. Hence, we conclude that the best interest standard should also apply to determine whether imputation of income to a spouse seeking educational enhancement is an appropriate basis for an award of alimony.”).

Parent’s Decision vs Best Interests of the Child

These cases are helpful for Mom, but most courts will probably adhere—as they should—to the plain language of the statute. And as applied to most cases, the statutory language makes sense. It operates to dissuade parents from voluntarily working less and underproviding for children. Even where the goal is to spend more time with a child, a child’s best interests are not served by having a parent at home more often if the trade-off is an inability to meet the child’s basic needs. In this scenario, imputation of income would be appropriate under a “best interests” analysis.

But where a child’s needs can still be met if a parent accepts a lower-paying job, and the trial court is satisfied that additional time together would indeed be beneficial for the child, it makes no sense to impute income simply because the parent’s decision is “voluntary.” As in Overbey, a parent’s decision to accept a less remunerative post because it affords additional time with a child will always be “voluntary,” but may be in the child’s best interests.

The Wisconsin Supreme Court’s decision in Chen v. Warner is instructive. In Chen, a mother of three quit her job as a doctor a year after her divorce so she could spend more time with her children. Chen, 280 Wis. 2d 344, 354 (Wis. 2005). At the time, she did not request child support because she determined the interest flowing from the investment of her substantial savings would provide enough income to satisfy her needs, as well as the needs of her children. Id. A year after leaving her job, however, the stock market declined, which took a toll on the mother’s investment. Id. As a result, she petitioned to amend the parties divorce judgment and requested child support from her former husband. Id. In response, the father argued the income from her job as a doctor should be imputed to the mother. Id. at 351.

The Wisconsin Supreme Court rejected the father’s imputation argument and increased his child support obligation, holding that that the mother’s actual income, as opposed to her earning capacity, should be used to assess her financial status. Id. at 354. The father in Chen did not “assert that the mother’s decision to remain unemployed was motivated by anything other than the children’s best interests.” Id. at 370. And based on the evidence in the record, the Wisconsin Supreme Court determined that it was indeed in the children’s best interests to have their mother at home, rather than fulfilling her maximum earning potential. Id.

More Discretion for the Court

Section 61.30(2)(b), Florida Statutes, should be amended to give courts the discretion that allowed the Chen court to reach its result. When a parent leaves a higher-paying job for one that pays less in order to spend more time with his or her children, whether the decision is voluntary (it always will be) should not be the dispositive inquiry.

Instead, trial courts should assess whether the parent’s decision is in the best interests of the child before imputing income. It is child support, after all.

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About the Author:

Michael Brownlee

Mr. Brownlee is a board-certified appellate attorney that handles both civil and criminal appeals in Florida and in federal courts of appeal across the country. He is licensed to practice in each of Florida's appellate courts and most of the federal circuit courts of appeal. In addition to Florida's district courts of appeal, Mr. Brownlee has performed oral argument at the U.S. Court of Appeals for the First Circuit in Boston, the U.S. Court of Appeals for the Fifth Circuit in New Orleans, the U.S. Court of Appeals for the Sixth Circuit in Cincinnati, and the U.S. Court of Appeals for the Eleventh Circuit in Atlanta. He has also been lead appellate counsel in two appeals before the Florida Supreme Court. Mr. Brownlee is a member of the Appellate Practice section of the Florida Bar and the Orange County Bar Association's Appellate Practice Committee. In addition to his appellate practice, Mr. Brownlee handles various civil litigation matters at the trial level. Mr. Brownlee holds an "AV Preeminent" peer review rating from Martindale-Hubbell and obtained his board certification from the Florida Bar in appellate practice in 2016.

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