Daniel Windsor v. Tiffany Windsor

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-764
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DANIEL WINDSOR,
Appellant,
v.
TIFFANY WINDSOR,
Appellee.
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On appeal from the Circuit Court for Bay County.
Shonna Young Gay, Judge.
December 28, 2018
WINSOR, J.
When Daniel and Tiffany Windsor divorced in 2009, they
agreed that Daniel would pay $550 monthly in child support.
Financial circumstances changed over time, and Tiffany Windsor
(the ex-wife) later petitioned for increased support. Daniel
Windsor (the ex-husband) counter-petitioned for a decreased
amount. The trial court agreed with the parties that there had
been a substantial change in circumstances—a prerequisite to any
change in support obligations, see § 61.14, Fla. Stat.—and it also
concluded that the ex-husband was voluntarily underemployed.
The court then recalculated the ex-husband’s child support
obligation based on an imputed income of $100,000, rather than
the ex-husband’s lower, actual income. The sole question here is
whether that $100,000 imputation was permitted.
“When the obligor spouse voluntarily becomes unemployed or
underemployed, the income that he or she is capable of earning
may be imputed for purposes of determining an appropriate award
of support.” Smith v. Smith, 737 So. 2d 641, 644 (Fla. 1st DCA
1999); see also § 61.30(2)(b), Fla. Stat. Therefore, the first step is
to determine whether there is voluntary unemployment or
underemployment. If there is, then the second step is to determine
the amount of income to impute.
As to the first step, we conclude that competent, substantial
evidence supported the trial court’s finding of underemployment.
The ex-husband was in the restaurant business and once held
high-paying executive-chef positions. He then owned his own
restaurant, where he perhaps earned somewhat less, but still more
than he makes now. More recently, he sold that restaurant and
opened a small, unprofitable coffee shop. His current wife owns the
coffee shop with him, and she testified that they sold the
restaurant in favor of a coffee shop because they were ready to
“slow down some.” That evidence—that the ex-husband accepted a
less profitable arrangement to enjoy slowing down—is enough to
support the court’s finding of voluntary underemployment. Cf.
Gillette v. Gillette, 226 So. 3d 958, 961 (Fla. 4th DCA 2017) (“[A]
person can become ‘underemployed’ by leaving a more lucrative
position in order to pursue an interest in a family business.”);
Guard v. Guard, 993 So. 2d 1086, 1090 (Fla. 5th DCA 2008)
(“[D]espite the family business’s lack of success, the husband failed
to seek profitable employment. . . . [I]n choosing to pursue his
interest in the family business, he has become underemployed.”).
As to the second step, we conclude that there was not
competent, substantial evidence supporting the trial court’s
decision to impute $100,000. The trial court correctly noted that
the ex-husband previously earned more than $100,000—and that
he once expected to make even more through a Kentucky business
arrangement that did not materialize. But to impute $100,000 of
income, the court needed evidence that the ex-husband had the
present ability to earn $100,000 in his community. § 61.30(2)(b),
Fla. Stat.; cf. also Rabbath v. Farid, 4 So. 3d 778, 782 (Fla. 1st DCA
2009) (reversing imputation of income based on past, foreign job
because “[n]o evidence was presented regarding the current,
prevailing earnings level and the potential source(s) or amount of
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income in the pertinent community.” (emphasis added)). Yet there
was no evidence below about the relevant job market in the ex-
husband’s area, Panama City. See Rabbath, 4 So. 3d at 782
(“Before the trial court could impute income to Appellant, it had to
make particularized findings relating to the current job market,
Appellant’s more recent work history, his occupational
qualifications, and the prevailing earnings level in the local
community where he and his family live.”). There was testimony
from the ex-husband’s former employer that if his outfit was hiring
someone with the ex-husband’s credentials, it would pay at least
$100,000. But there was no evidence that such a job was available.
See § 61.30(2)(b)1.b. (noting petitioner must provide “evidence of
income from available employment for which the party is suitably
qualified”). We therefore reverse and remand for further
proceedings, during which the trial court should determine an
appropriate amount of imputed income.
REVERSED and REMANDED.
ROBERTS and RAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Jonathan W. Dingus, Panama City, for Appellant.
Jeffrey P. Whitton, Panama City, for Appellee.
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