JAMES DAMASK v. LESYA RYABCHENKO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JAMES DAMASK,
Appellant,
v.
LESYA RYABCHENKO,
Appellee.
No. 4D20-2649
[October 27, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Dina A. Keever-Agrama, Judge; L.T. Case No.
502015DR001522.
Jennifer L. Delgado, Jonathan Mann, and Robin Bresky of Bresky Law,
Boca Raton, for appellant.
No appearance for appellee.
GROSS, J.
James Damask (“the father”) timely appeals a post-judgment order in a
paternity proceeding that, among other things, imputed gross income to
him of $578,500 per year and granted an upward modification of his child
support obligation. We reverse because there was not competent,
substantial evidence to support the imputation of $578,500 in income.
The underlying paternity action culminated in the entry of a final
judgment of paternity that ratified the parties’ settlement agreements. At
that time, the parties agreed that gross annual income of $35,000 would
be imputed to the mother, and that the father’s actual gross annual
income was $578,500. The parties also agreed that the father would pay
$2,000 per month in child support, which exceeded the child support
guidelines.
When the circuit court entered the final judgment of paternity, the
father worked as a commodity broker. About two months later, the father’s
employer fired him for cause for violating provisions in his employment
agreement.
In October 2018, the father filed, among other things, a petition for
modification of child support. The father alleged a substantial change of
circumstances in that he had been terminated from his employment as a
commodity broker, and he had relocated to California to build a cannabis
company from which he had yet to receive an income. The trial court
referred the child support issue action to a general magistrate.
The magistrate held a non-jury trial on the father’s modification petition
and other matters raised by the mother.
At trial, the father testified that the $578,500 income reflected in the
final judgment of paternity was based on his most recent tax return at that
time. The father explained that he lost his job as an institutional
commodity broker under circumstances that made it difficult to find new
employment in the same field, since his former employer would not be a
good reference. In addition, the father testified that computer technology
had reduced the number of positions available in his field, which included
only six companies and thirty persons who executed the types of deals in
which the father had specialized.
After six months of unsuccessfully searching for a commodity broker’s
job, the father started a cannabis delivery business in California. The
father “sold everything” and invested in the company, for which he serves
as the president and CEO. At the time of the trial, the father had not
drawn a salary and there had been no distributions to shareholders.
Over the father’s objection, the mother introduced a vocational
assessor’s report as evidence. The report opined that the father was
employable at a compensation rate of at least $580,934 in South Florida
and $612,380 in Los Angeles, California. The vocational assessor’s
opinion was based upon three sources of wage statistics, as well as the
father’s historical wage history between 2014 and 2017, during which time
he earned between roughly $577,000 and $1.2 million per year.
The $580,934 figure was pulled directly from a wage statistic from the
Economic Research Institute stating that a “Chief Executive Officer / Chief
Commercial Officer” at the 75th percentile in the wholesale commodity
industry in the Fort Lauderdale metropolitan area would earn $580,934
per year. The report also contained statistics showing that the median
annual wage for a commodity broker is $63,990 in Florida and is $56,700
in California.
After trial, the magistrate issued a Report and Recommendations which
the trial court later adopted and incorporated into a final order. Relying
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upon the vocational assessor’s “expert opinion” that the father’s earning
capacity was at least $580,934 per year, the court imputed to the father
the same income he was earning at the time of the final judgment of
paternity—$578,500 per year in gross income. In light of the change in
timesharing caused by the father’s move to California, the court ordered
an upward modification of the father’s child support obligation from
$2,000 per month to $2,707.41 per month beginning on January 1, 2020,
consistent with the mother’s petition to increase child support.
On appeal, the father challenges the imputation of $578,500 in income
to him.
Standard of Review
The standard of review governing a trial court’s imputation of income
for child support purposes is whether the court’s findings are supported
by competent, substantial evidence. Brown v. Cannady-Brown, 954 So.
2d 1206, 1207 (Fla. 4th DCA 2007).
Imputation of Income
The child support guideline amount “presumptively establishes the
amount the trier of fact shall order as child support in an initial proceeding
for such support or in a proceeding for modification of an existing order for
such support, whether the proceeding arises under this or another
chapter.” § 61.30(1)(a), Fla. Stat. (2020) (emphasis added). “The
guidelines may provide the basis for proving a substantial change in
circumstances upon which a modification of an existing order may be
granted.” § 61.30(1)(b), Fla. Stat. (2020).
For child support purposes, absent a finding of incapacity or other
circumstance over which the parent has no control, “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[.]” § 61.30(2)(b), Fla. Stat. (2020). “In the event of
such voluntary unemployment or underemployment, the employment
potential and probable earnings level of the parent shall be determined
based upon his or her recent work history, occupational qualifications,
and prevailing earnings level in the community if such information is
available.” Id.
For the court to impute income at an amount other than the median
income of year-round full-time workers, the party seeking to impute
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income bears the burden of presenting competent, substantial evidence
that
a. The unemployment or underemployment is voluntary; and
b. Identifies the amount and source of the imputed income,
through evidence of income from available employment for
which the party is suitably qualified by education,
experience, current licensure, or geographic location, with
due consideration being given to the parties’ time-sharing
schedule and their historical exercise of the time-sharing
provided in the parenting plan or relevant order.
§ 61.30(2)(b)1., Fla. Stat. (2020).
“[A]lthough a trial court is free to determine the credibility of witnesses,
restraints on the imputation of income exist in the form of a two-step
analysis.” Vazquez v. Vazquez, 922 So. 2d 368, 370 (Fla. 4th DCA 2006).
First, the court must determine whether “the termination of income was
voluntary.” Id. Second, “the court must determine whether any
subsequent underemployment resulted from the [party’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. (internal quotation marks omitted).
First Step
The first step of the analysis for imputing income on the basis of
voluntary unemployment or underemployment requires the trial court to
determine whether the termination of income was voluntary.
A party’s loss of employment due to misconduct is sufficient to support
a finding that the termination of income was voluntary. See Heard v.
Perales, 189 So. 3d 834, 836 (Fla. 4th DCA 2015) (“In the present case, as
to the first step, the trial court found that the mother lost her employment
as a result of her wrongful conduct. This finding is sufficient to support a
conclusion that she was voluntarily unemployed.”); Brown, 954 So. 2d at
1208 (affirming determination that the husband voluntarily terminated his
employment as a pilot where he failed a drug test); Vazquez, 922 So. 2d at
370 (“We agree with the trial court that the husband’s termination was
voluntary because it was caused by his own deliberate repeated
misconduct.”); Bronson v. Bronson, 793 So. 2d 1109, 1110–11 (Fla. 4th
DCA 2001) (affirming the trial court’s finding that the husband had
voluntarily “caused his termination of employment” through absenteeism);
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Connell v. Connell, 718 So. 2d 842, 842–43 (Fla. 2d DCA 1998) (affirming
the trial court’s finding of voluntary underemployment where the husband
lost his job “due to off-the-job misconduct”).
Here, the trial court’s finding that the father’s termination of income
was voluntary is supported by competent, substantial evidence. The trial
court found the father’s termination from employment as a commodity
broker was voluntary because, as the father conceded during his
testimony, it arose from his misappropriation of funds.
The father, relying on Vazquez, nonetheless suggests that there must
be a finding of “deliberate repeated misconduct” for his termination to be
deemed voluntary. However, Vazquez did not establish a rule that the
termination of employment must be caused by “deliberate repeated
misconduct.” Instead, the Vazquez majority simply concluded that the
husband’s termination in that case was caused by “deliberate repeated
misconduct.” 922 So. 2d at 370.
While the word “voluntary” in section 61.30 implies that the
misconduct resulting in termination must be deliberate, the statute does
not require misconduct to be “repeated” before a trial court can make a
finding of voluntary unemployment or underemployment. Termination of
employment is an obvious and foreseeable consequence of
misappropriating funds, even if the misappropriation occurs only once.
Thus, where a parent is terminated from his or her employment for
deliberate misconduct, such as misappropriation of funds, a trial court is
within its discretion to conclude that the parent’s resulting unemployment
is “voluntary” within the meaning of section 61.30.
Finally, the father incorrectly suggests that there must be evidence
“that he sought to voluntarily terminate his income to avoid paying child
support.” To the contrary, section 61.30(2)(b) requires only that the court
find the parent’s unemployment or underemployment “to be voluntary on
that parent’s part.” Section 61.30(2)(b) does not require a finding that the
reason the parent became voluntarily unemployed or underemployed is “to
avoid paying child support.”
Second Step
The second step of the analysis for imputation of income requires the
court to determine whether any subsequent unemployment or
underemployment “resulted from the [party’s] pursuit of his own interests
or through less than diligent and bona fide efforts to find employment
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paying income at a level equal to or better than that formerly received.”
Vazquez, 922 So. 2d at 370.
“[T]he trial court may only impute a level of income supported by the
evidence of employment potential and probable earnings based on history,
qualifications, and prevailing wages.” Schram v. Schram, 932 So. 2d 245,
250 (Fla. 4th DCA 2005). The party seeking to impute income bears the
burden of identifying “the amount and source of the imputed income,
through evidence of income from available employment for which the party
is suitably qualified by education, experience, current licensure, or
geographic location[.]” § 61.30(2)(b)1.b., Fla. Stat. (2020). “Past average
income, unless it reflects current reality, simply is meaningless in
determining a present ability to pay. Past average income will not put
bread on the table today.” Chipman v. Chipman, 975 So. 2d 603, 609 (Fla.
4th DCA 2008) (quoting Woodard v. Woodard, 634 So. 2d 782, 783 (Fla.
5th DCA 1994)).
For example, in Durand v. Durand, 16 So. 3d 982, 985 (Fla. 4th DCA
2009), this court held that the trial court did not have sufficient evidence
to impute income of $75,000 to the husband where, in addition to being
terminated involuntarily, the husband “was making efforts to find new
employment, such as sending his resume to a job agency and volunteering
for a company he thought might hire him,” and the wife “did not provide
evidence that jobs were available.”
Similarly, in Chipman, a case where the wife voluntarily left her
employment as a police officer, this court held that the trial court did not
“make the requisite findings concerning the wife’s recent work history, her
occupational qualifications, and the prevailing earnings in the community
for that class of available jobs,” nor did the record “contain competent,
substantial evidence to support the trial court’s imputation of income to
the wife at the level of her most recent salary.” 975 So. 2d at 608. We
emphasized that the wife’s “uncontradicted testimony was that she could
not return to work in the same capacity,” and that the husband “did not
present any evidence on this issue.” Id. at 609.
Here, the only evidence that the mother offered concerning the father’s
employment potential was the vocational assessment report, which was
inadmissible hearsay admitted over the father’s objection. See §
90.801(1)(c), Fla. Stat. (2020) (defining “hearsay” as “a statement, other
than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted”); § 90.802,
Fla. Stat. (2020) (“Except as provided by statute, hearsay evidence is
inadmissible.”).
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The vocational assessor did not testify in court. Her out-of-court
opinions as to the father’s employability were classic hearsay.
Inadmissible hearsay cannot be competent, substantial evidence. See,
e.g., B.L. v. Dep’t of Child. & Families, 174 So. 3d 1125, 1126 (Fla. 4th DCA
2015). Thus, the record did not contain competent, substantial evidence
to support a finding that comparable employment was available to the
father at $578,500 per year.
In this case, the trial court’s findings that the father’s subsequent
underemployment resulted from his pursuit of his own interests or a less-
than-good-faith effort to find comparable employment were not supported
by competent, substantial evidence. Similar to Chipman, the father offered
uncontradicted testimony that he could not return to work as a commodity
broker in the same capacity as before. The father’s unrebutted testimony
established that he had worked in a very small industry of oil-and-gas
commodity brokering. After losing his job, the father conducted an
extensive job search for six months. However, the father’s name was
tarnished in the industry and those jobs were unavailable to him.
It was only after his unsuccessful job search that the father started a
cannabis company in an effort to increase his income back to its previous
level. Notably, the father admitted that he was considering jobs that paid
between $40,000 and $60,000. But the father realized this would be
insufficient to provide for his child.
Significantly, the trial court failed to make the requisite findings
concerning the father’s recent work history, his occupational
qualifications, and the prevailing earnings in the community for
commodity brokers. The mother failed to introduce competent,
substantial evidence on this issue. The record does not support a finding
that the father’s underemployment resulted from a less-than-good-faith
effort to find comparable employment as a commodity broker.
Conclusion
For these reasons, we reverse that portion of the final order on
modification regarding the father’s requisite level of child support and
remand to the circuit court for further proceedings consistent with this
opinion.
Reversed and remanded.
MAY and DAMOORGIAN, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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