ANDREA K. GILLETTE n/k/a ANDREA ECONOMUS v. JOSEPH GILLETTE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANDREA K. GILLETTE n/k/a
ANDREA ECONOMUS,
Appellant,
v.
JOSEPH G. GILLETTE,
Appellee.
No. 4D16-1010
[September 6, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Lisa S. Small, Judge; L.T. Case No.
502010DR004549XXXXMB.
Martin L. Haines, III of Brinkley Morgan, Lake Park, for appellant.
Troy William Klein of Law Office of Troy W. Klein, P.A., West Palm
Beach, for appellee.
KUNTZ, J.
The Former Wife appeals the circuit court’s final judgment of
dissolution of marriage. We address three of the issues raised by the
Former Wife in this opinion and affirm the remaining issues raised on
appeal without further discussion.
First, we hold that the court did not abuse its discretion when it
concluded the Former Husband was not voluntarily underemployed.
Second, we affirm in part and reverse in part the court’s calculation of the
Former Wife’s child support obligation. Third, we reverse the court’s
conclusion that the Former Husband’s IRA was a non-marital asset.
Background
After twelve years of marriage, the Former Husband filed a petition for
dissolution of marriage and sought sole parental responsibility and to be
designated the primary residential parent of the parties’ only child. After
a three-day trial, the court issued a twenty-five page Final Judgment of
Dissolution of Marriage.
The court found that the Former Wife had a bachelor’s degree in
communications from Loyola Marymount University in Los Angeles,
California, and the Former Husband had a master’s degree in mechanical
engineering from the University of Florida in Gainesville, Florida.
Prior to the marriage, both parties worked outside the home. The
Former Wife quit her job in 2001, and remained unemployed until the
petition for dissolution was filed. The Former Husband was employed as
an engineer working with cellular phone technology at a technology
company, earning approximately $90,000 per year until 2004. The court
found that the Former Husband’s “experience is with cellular phone
technology as it existed in 2004—which was before the release of the first
iPhone and the other smart phones that are popular today.”
In 2001, with the encouragement of the Former Wife, the Former
Husband started a cloud computing storage business, Shadow Storage.
He operated Shadow Storage simultaneously with his employment at the
technology company until 2004. The court found that “the parties
mutually decided in 2004, that the [Former] Husband would resign from
[the technology company] where he worked with cellular phones to devote
himself full-time to working with Shadow Storage, Inc., the family
business, as well as raise the parties’ son.” Since 2004, the Former
Husband has worked full-time for Shadow Storage.
The Former Husband testified that from the time he began working full-
time at Shadow Storage until the filing of the petition, the Former Wife did
not ask him to give up his work at Shadow Storage or demand that he find
work outside the home. Importantly, for purposes of this appeal, the court
found this testimony to be credible.
While the Former Wife agreed to the Former Husband’s working at
Shadow Storage during the marriage, her consent dissolved with the
marriage. As a result, the Former Wife argued to the circuit court that the
Former Husband is voluntarily underemployed. Although he testified that
he works between forty and fifty hours per week at Shadow Storage, the
highest amount of gross income he made in any year from the company
was $13,000. The Former Wife presented a vocational expert who testified
the Former Husband could be employed in various fields and earn
significantly more than he earned at Shadow Storage. The court, however,
found the expert had “little credibility” and noted various deficiencies in
the testimony and methodology presented by the expert.
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The court also found the Former Husband’s flexible work schedule was
a benefit to the couple and the minor child. The flexible schedule allowed
the Former Husband to care for the child when he was ill, volunteer at
school and with extracurricular activities, and allowed the Former
Husband “to be highly involved in the minor child’s education at a level
that would have been highly unlikely had the Husband not resigned his
position in 2004 with [the technology company] and committed himself to
being a work from home father.”
Based upon these findings, the court found the Former Wife had failed
to meet her burden to establish the Former Husband was voluntarily
underemployed. The Former Wife timely sought rehearing and, after the
motion for rehearing was denied, appealed the court’s judgment.
Analysis
A. The Court Did Not Abuse its Discretion in Determining the
Former Husband Was Not Voluntarily Underemployed
We first address the Former Wife’s argument that the court erred in its
conclusion that the Former Husband is not voluntarily underemployed for
purposes of calculating child support.
Our “standard of review is whether the trial court’s determination is
supported by competent, substantial evidence,” Heard v. Perales, 189 So.
3d 834, 836 (Fla. 4th DCA 2015) (internal citation omitted), and we will
not reverse unless the court abused its discretion. Guard v. Guard, 993
So. 2d 1086, 1089 (Fla. 5th DCA 2008); see also Stanton v. Stanton, 648
So. 2d 1233, 1234 (Fla. 4th DCA 1995) (“A child support determination is
within the sound discretion of the trial court, subject to the statutory
guidelines and the reasonableness test.”).
The governing statute, section 61.30(2)(b), Florida Statutes (2015),
provides that a court “shall” impute income to a parent it finds to be
voluntarily underemployed. To determine whether to impute income as a
result of voluntary underemployment, the court engages in a two-step
process. Heard, 189 So. 3d at 836. First, the court must conclude the
termination of income was voluntary. Second, “the court must determine
whether the subsequent unemployment ‘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. (quoting Schram v. Schram, 932 So. 2d 245,
249–50 (Fla. 4th DCA 2005)). The burden is on the party asserting that
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the other spouse is voluntarily unemployed or underemployed. Andrews
v. Andrews, 867 So. 2d 476, 478 (Fla. 5th DCA 2004) (citing Blanchard v.
Blanchard, 793 So. 2d 989, 992 (Fla. 2d DCA 2001)).
Generally, the Former Wife asserts the court failed to sufficiently
conduct the two-part test. She relies upon the evidence regarding the
Former Husband’s income after he left his employment at the technology
company, arguing his testimony that he intended to remain self-employed
“should have been a shock to the conscience of the trial court.”
We acknowledge that a person can become “underemployed” by leaving
a more lucrative position in order to pursue an interest in a family
business. Guard, 993 So. 2d at 1090. In Guard, the wife filed a motion
for temporary alimony and child support. During the marriage, the
husband had been forced to resign from his job in Georgia and the parties
moved to Florida to start a family business. Similar to the business in this
case, the family business in Guard was not profitable. Due to the lack of
income, the wife could not work because she could not afford child care
for their children. The husband volunteered to care for the children two
days a week, “depending on his work schedule.” The trial court found the
husband to be “voluntarily underemployed” and the Fifth District affirmed,
finding no abuse of discretion by the trial court. Id. at 1090.
Similarly, in Connell v. Connell, 718 So. 2d 842 (Fla. 2d DCA 1998), the
former husband sought a downward modification of his child support
obligation. After he was fired for misconduct from a job earning $45,000
per year, he started a lawn business earning less than $13,200 per year.
The circuit court found that he was “voluntarily underemployed” and the
Second District affirmed, finding “the evidence sufficient to support the
trial court’s determination.” Id. at 843; see also Bator v. Osborne, 983 So.
2d 1198, 1199–1200 (Fla. 2d DCA 2008) (finding “ample evidence” to
support a similar result).
In Vazquez v. Vazquez, 922 So. 2d 368, 372 (Fla. 4th DCA 2006), the
former husband petitioned the court for a downward departure of his child
support obligations after being terminated from his job. The reason for his
termination was misconduct, including using his employer’s computer to
send his former wife an offensive and threatening e-mail. Six months later,
he opened his own business as a professional engineer earning between
$2,900 and $3,750 per month. The court denied his petition and imputed
income to him in the amount of $5,650 per month. The majority in
Vazquez held that the court did not abuse its discretion “in finding that
the husband’s termination of employment from Florida Power and Light
was voluntary and his subsequent employment efforts were less than
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diligent.” Id. at 370. Judge Gross disagreed with the characterization of
the husband’s employment termination and would have found the
termination to be involuntary. Notwithstanding his disagreement as to the
termination, he ultimately agreed with the result, stating: “I concur in the
affirmance because the finding of voluntary underemployment turns on a
credibility determination by the commissioner, which is entitled to
deference on appeal.” Id. at 373.
That same deference precludes a reversal here. The court made
detailed findings regarding the origins of the Former Husband’s
employment, the agreement of the parties to that situation, and the benefit
to the child as a result. Further, the court rejected the Former Wife’s
expert’s testimony and evidence regarding the Former Husband’s earning
potential. The court noted the expert did not consider technological
changes since the Former Husband was previously employed at the
technology company working on cellular phones and, additionally, found
the expert’s methodology to be flawed.
In essence, the Former Wife now asks us to judge the wisdom of a
business decision jointly made by the parties six years prior to their
separation. We are not at liberty to question the wisdom, or lack thereof,
of the Former Husband’s decision to remain in a business that has proven
unprofitable. There are a myriad of other issues beyond profitability a
business owner considers when making business decisions. There are
also many issues that a trier of fact may rely upon when making a
determination regarding underemployment. If the issue of
underemployment was one that focused solely on profitability, we would
have a system that strangles small businesses which struggle at their
inception and forces those business owners to cede their business in favor
of employment at a more established company. That may be wise in some
instances but not in others where the once struggling small business
builds over time into a more profitable enterprise.
Regardless, here we are tasked with determining whether the court’s
determination is supported by competent substantial evidence. As there
was competent substantial evidence to support each of the court’s
findings, we cannot conclude the court abused its discretion in
determining the Former Husband was not voluntarily underemployed.
B. The Calculation of Child Support
Next, the Former Wife argues the court erred in its calculation of child
support when it failed to consider her monthly child care expenses and,
additionally, based upon a mathematical error.
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i. The Court Erred When It Failed To Account for the Former Wife’s Child
Care Expenses
The Former Wife argues the court erred when it calculated her child
support obligation without considering the amount she pays each month
for child care. We agree, because section 61.30(7), Florida Statutes (2015),
provides that “child care costs incurred due to employment . . . of either
parent shall be added to the basic obligation.” Therefore, on remand the
court should recalculate child support after including the child care costs
incurred by the Former Wife.
ii. The Mathematical Error in the Calculation of Retroactive Child Support
With regard to the mathematical error, the court determined the Former
Wife’s net monthly income was $1,620, and her monthly obligation for the
period of April 2010 through September 2013 was $348. While the court
established a time period for retroactive child support from April 2010
through September 2013, it erroneously indicated there were forty-six
months during that time period. In fact, there are forty-two months during
that time period. The Former Husband does not dispute this mathematical
error, but argues the issue was waived. We disagree. Due to this
miscalculation in months, the court’s retroactive award resulted in the
Former Wife owing $1,392 too much. We reverse and remand for
recalculation of the Former Wife’s retroactive child support obligation,
subject to any additional changes that result from including the Former
Wife’s child care expenses as discussed above.
C. The Former Husband’s IRA
Finally, the Former Wife argues the court erred when it found she
stipulated that the Former Husband’s retirement account was a non-
marital asset. The Former Husband concedes the Former Wife did not
stipulate to this, however, argues the error was harmless. We disagree.
On remand, the court should find that the retirement account is a marital
asset, determine a date for valuation of the asset, and equitably distribute
the asset as required by section 61.075, Florida Statutes (2015).
Conclusion
We affirm the court’s conclusion that the Former Husband is not
voluntarily underemployed. However, we reverse the court’s child support
determination and retroactive award and remand for recalculation as
indicated above. Additionally, we reverse the court’s finding that the
Former Wife conceded the Former Husband’s retirement account was a
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non-marital asset and remand for valuation and distribution of that
marital asset.
Affirmed in part, reversed in part, and remanded.
GERBER, C.J., and GROSS, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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