William Moncrief Wood, Jr Former Husband v. Peggy Hodge Wood, Former Wife , 162 So. 3d 133 ( 2014 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
WILLIAM MONCRIEF WOOD, NOT FINAL UNTIL TIME EXPIRES TO
JR., former husband, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D13-5778
v.
PEGGY HODGE WOOD,
former wife,
Appellee.
_____________________________/
Opinion filed December 17, 2014.
An appeal from the Circuit Court for Clay County.
Mark J. Borello, Judge.
Denise Watson of Law Office of Denise Watson, Jacksonville and William S.
Graessle of William S. Graessle, P.A., Jacksonville, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Appellee.
PER CURIAM.
The final judgment modifying the final judgment of dissolution is
challenged on appeal by the former husband’s direct appeal and the former wife’s
cross-appeal. We reverse portions of the modification judgment as explained
below, but otherwise affirm.
The parties’ eleven-year marriage was dissolved by final judgment entered
June 22, 2010. At the time the final judgment was entered, both parties were
employed by William K. Wood Co., a business solely owned by former husband
and inherited from his father. The former wife’s annual salary was approximately
$50,000.00. The final judgment incorporated a marital settlement agreement
which addressed all pertinent matters, including child support and alimony. Based
on the agreement, the final judgment ordered the former husband to pay alimony of
$5000.00 per month, child support of $5000.00 per month—both payments to be
secured by insurance policies on the former husband’s life—and to continue the
former wife’s health insurance until she obtained new employment which provided
this benefit. The former wife’s employment at Wood Co. ended some time in
2012.
On June 21, 2012, the former husband petitioned to modify the final
judgment. He alleged that due to a downturn in his company’s revenues, his
financial circumstances had substantially changed since 2010. Former husband
sought reduction of his alimony and child support payments, elimination of his
obligation to secure these payments with insurance, and termination of his
obligations to provide the former wife with health insurance and pay private school
tuition for his child.
In response, the former wife filed her motion for contempt and enforcement
and alleged that by July, 2012, the former husband’s arrearages for support totaled
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$117,000.00. She also asserted that the former husband’s decrease in income and
his alleged inability to afford life insurance were willful, and that the child’s
enrollment in public school was only temporary. The former wife’s amendment
and supplement to her motion for contempt, filed August 12, 2013, alleged
arrearages in the amount of $179,727.65 as of that date.
After mediation, discovery, and a bench trial, the court entered the
modification judgment now on appeal.
Alimony. The court specifically relied on the financial affidavits filed by
the former husband in May, 2010 and April, 2013 respectively, and found a 9%
decrease in the former husband’s income. Accordingly, the court reduced the
former husband’s alimony obligation by 9%, from $5000 per month to $4550 per
month. On appeal, the former husband argues that the reduction was inadequate
because the gross profits of his company fell by 60% between 2010 and 2013.
However, he failed to show that the trial court abused its discretion by relying on
his sworn financial affidavits, which conformed to form 12.902(c), Florida Family
Law Forms, to compare his income—including personal expenses paid for by his
company—at the time of the final judgment with his income at the time the
modification judgment was entered.
Likewise, the trial court declined to modify the security requirement for the
alimony payments and the former husband has shown no abuse of the trial court’s
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discretion on this ruling. However, the order does not specify the amount of life
insurance required; thus, on remand, the trial court shall specify an amount for
such insurance coverage.
Health Insurance. The trial court denied modification of the requirement
that former husband continue providing health insurance to the former wife until
she obtains employment which includes this benefit. No abuse of discretion is
evident on this point. Contrary to the former husband’s argument, the former
wife’s short-lived employment at a new company did not automatically satisfy the
terms of the original final judgment’s directive that the former husband maintain
the health insurance, through his company, until the former wife obtains
employment with a health insurance benefit.
Child Support. In the modification judgment, the trial court found that
because the former wife became employed, but quit the position one month later,
her unemployment was “voluntary.” See § 61.30(2)(b), Fla. Stat. In addition, the
court relied on the former husband’s expert witness’ testimony regarding the
former wife’s recent work history and her probable earning range. The court
determined that “based on her occupational qualifications and the prevailing
earnings in the community,” income of $50,000.00 ($4,166.67 per month) would
be imputed to the former wife.
The court then considered this imputed income for its determination of child
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support, as reflected in a single-page chart entitled “child support guidelines
worksheet” attached to the modification judgment. The chart listed the income
imputed to the former wife as her “Social Security Taxable Income.” The court
did not utilize or require the parties to submit form 12.902(e), Florida Family Law
Forms. The trial court then found: “Based on the foregoing respective financial
positions of the parties and the health insurance costs paid by the Former Husband,
the Court finds that the Former Husband does not owe a monthly child support
obligation.” This modified the former husband’s child support obligation from
$5000.00 per month to zero.
The former wife’s cross-appeal of the elimination of child support is well-
taken. As stated in Kozell v. Kozell, 142 So. 3d 891, 894 (Fla. 4th DCA 2014):
A party moving for modification of child support has the
burden of proving the following factors: (1) a substantial change in
circumstances; (2) the change was not contemplated at the time of the
final judgment of dissolution; and (3) the change is sufficient,
material, involuntary, and permanent in nature. Maher v. Maher, 96
So.3d 1022, 1022 (Fla. 4th DCA 2012). “When the original child
support amount is based on an agreement by the parties, as here, there
is a heavier burden on the party seeking a downward modification.”
Id.Generally, “the standard of review governing a trial court’s decision to modify
child support is abuse of discretion.” deLabry v. Sales, 134 So. 3d 1110, 1115
(Fla. 4th DCA 2014) (citations omitted). A trial court’s decision to impute income
to a parent for purposes of calculating child support obligations is also “reviewed
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for abuse of discretion.” Strassner v. Strassner, 982 So. 2d 1224, 1225 (Fla. 1st
DCA 2008).
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.
Section 61.30(2)(b), Florida Statutes, requires imputation of income “to an
unemployed or underemployed parent if such unemployment or underemployment
is found by the court to be voluntary on that parent’s part.” However, “restraints
on imputation exist in the form of a required two-step analysis.” Schram v.
Schram, 932 So. 2d 245, 249 (Fla. 4th DCA 2005). The trial court’s order
contained no particularized findings related to the current job market, the former
wife’s recent (within the preceding 5 years) work history, occupational
qualifications, or the prevailing earnings level in the local community. See
Marlowe v. Marlowe, 123 So. 3d 1194 (Fla. 1st DCA 2013) (imputation of income
to payee parent for purposes of reducing child support from payor parent reversed
due to lack of particularized findings). The court’s reliance on the voluntary
termination of the former wife’s employment fell short of the two-step analysis
required to impute income at the former level. “First, the trial court must conclude
that the termination was voluntary; second, 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
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efforts to find employment paying income at a level equal to or better than that
formerly received.” Ensley v. Ensley, 578 So. 2d 497, 499 (Fla. 5th DCA 1991);
see also Broemer v. Broemer, 109 So. 3d 284 (Fla. 1st DCA 2013); Leonard v.
Leonard, 971 So. 2d 263 (Fla. 1st DCA 2008).
Accordingly, while 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.
Brown v. Cannady-Brown, 954 So. 2d 1206 (Fla. 4th DCA 2007); Ensley, 578 So.
2d at 499. The order on appeal contains no findings regarding the former wife’s
diligence or lack thereof in seeking employment in the job market in the
community. Accordingly, her imputed income as reflected in the chart/worksheet
and relied upon by the trial court was not supported by sufficient evidence.
The chart/child support worksheet indicating that the former husband’s net
monthly income is $80.60 did not constitute competent, substantial evidence
sufficient to support the trial court’s elimination of child support. The former
husband’s net monthly income reported in his family law financial affidavit (form
12.902(c), Florida Family Law Forms) filed in May 2013 shows a net monthly
income (line 27) of $4,518.23. The use of the chart in this case and not the Child
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Support Guidelines Worksheet promulgated in Form 12.902(e), Florida Family
Law Forms, is unexplained. Particularly in light of the “heavier burden” on the
party seeking a downward modification where the original child support amount
was by agreement of the parties, the record in this case simply does not support the
modification of child support from $5000.00 per month to $0 and this portion of
the modification judgment must be reversed.
Because the trial court’s elimination of the security requirement for child
support payments was dependent upon its elimination of the child support, the
removal of the security requirement for child support is also reversed. On remand,
the trial court shall specify an amount for such insurance coverage.
Arrearages. The trial court’s ruling that “the Former Husband is current in
his child support and alimony obligations, and Former Wife’s claim that Former
Husband is in arrearages is denied” lacks any explanation. There is no indication
in the record that the evidence of amounts owed versus payments the former wife
received was disputed. Accordingly, this portion of the modification judgment is
reversed for additional findings of fact regarding the former husband’s compliance
with the original judgment’s directives regarding alimony and child support
payments.
Accordingly, the provisions in the modification judgment eliminating child
support and life insurance as security for child support payments and the denial of
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the former wife’s claim for arrearages are REVERSED and REMANDED for
further proceedings. In all other respects, the modification judgment is
AFFIRMED. If in subsequent proceedings the trial court determines that a
modification of child support is justified by a permanent, unanticipated, substantial
change in the former husband’s financial circumstances, sufficient to meet the
heavier burden of proof when the original child support amount is based on an
agreement by the parties, calculation of the applicable guidelines child support
must be based on the forms promulgated by the Florida Supreme Court. If the trial
court determines that income must be imputed to the former wife for child support
purposes, such imputation must be supported by sufficient evidence of the
voluntariness of her current employment situation as shown by any lack of
diligence and bona fide efforts to obtain new employment in the existing market
appropriate to her qualifications and experience.
BENTON, VAN NORTWICK, and CLARK, JJ., CONCUR.
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