ANEMEY K. HUERTAS DEL PINO v. CARLOS E. HUERTAS DEL PINO

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANEMEY K. HUERTAS DEL PINO,
Appellant,
v.
CARLOS E. HUERTAS DEL PINO,
Appellee.
No. 4D16-3736
[November 1, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jessica Ticktin, Judge; L.T. Case No. 2015-DR-007005.
Jaclyn Ann Behar of BeharBehar, Sunrise, for appellant.
No appearance for appellee.
KLINGENSMITH, J.
Anemey K. Huertas Del Pino (“Wife”) appeals a final judgment of
dissolution that ended her long-term marriage to Carlos E. Huertas Del
Pino (“Husband”). Wife argues the trial court erred in holding that, for the
purposes of awarding alimony, income should be imputed to her based on
her eligibility for Social Security retirement benefits she had not yet
applied to receive. We agree. Because of error in the trial court’s
determination regarding the imputation of Social Security income to Wife,
and the effect of that imputation on the award of alimony to her, we
reverse.
For alimony purposes, trial courts may impute income to a voluntarily
unemployed or underemployed spouse in determining the parties’ earning
capacities, sources of income, and financial circumstances. See §
61.08(2)(e), (i), (j), Fla. Stat. (2016); Rabbath v. Farid, 4 So. 3d 778, 781–
82 (Fla. 1st DCA 2009); Freilich v. Freilich, 897 So. 2d 537, 540 (Fla. 5th
DCA 2005). The burden of proof is on the party seeking to impute income
to the other spouse. Burkley v. Burkley, 911 So. 2d 262, 269 (Fla. 5th
DCA 2005). Where a court imputes income to a spouse, the reviewing
court must determine whether competent, substantial evidence supports
imputation. Leonard v. Leonard, 971 So. 2d 263, 266 (Fla. 1st DCA 2008).
The final judgment detailed Wife’s employment and education history
throughout the marriage, which was minimal because she was a stay-at-
home mother during most of that time. When the Petition for Dissolution
was filed, Wife was sixty-two years old and had earned a GED. In her last
employment, she worked for a California cosmetics company, and earned
$12 per hour. Two months prior to the filing of the Petition for Dissolution,
she voluntarily left her job and came to Florida to expedite the divorce and
avoid the high cost of California living. Wife’s testimony established that
she desired to work full-time and intended to do so, but had not received
a single response to any job applications. Even though her last job paid
$12 per hour, Wife testified that she did not believe she could make $12
an hour in Florida due to her age, and because the minimum wage in
Florida was between $8 and $9 per hour. 1 The trial court found that Wife
was voluntarily unemployed or underemployed because according to the
final judgment “[t]he Wife admitted she is able to work, and should be able
to earn $10/hour, working 40 hours a week.”
Additional testimony revealed that, although she was eligible to receive
$640 per month in Social Security income, Wife chose to defer receipt of
those benefits so that she might receive $900 per month in Social Security
income after her sixty-fifth birthday. From this evidence, the trial court
added an additional $640 per month to Wife’s monthly imputed income for
the purposes of calculating alimony. The trial court’s final judgment
stated, “[T]he Wife’s gross income is $1,907.33. However, if the Wife takes
her Social Security income in the amount of $640.00 per month, her gross
income will be $2,547.33, per month.” After imputing this income to her,
the trial court also concluded that “[t]he Wife has the ability to support
herself to earn income in the total amount of $2,547.33 per month, which
provides enough of a surplus for the Wife to find suitable housing.” Thus,
the record is clear that the trial court improperly considered Wife’s
potential monthly Social Security benefits in its alimony computation.
Wife argues that her Social Security benefits may not be included as
income unless she receives payments from the Social Security
Administration (“SSA”). Under section 61.08(2):
In determining whether to award alimony or maintenance, the
court shall first make a specific factual determination as to
1As of 2016, Florida’s minimum wage was $8.05. See Florida Minimum Wage
History 2000 to 2017, FLORIDA DEPARTMENT OF ECONOMIC OPPORTUNITY,
http://www.floridajobs.org/docs/default-source/2017-minimum-wage/florida-
minimum-wage-history-2000-2017.pdf?sfvrsn=2 (last visited October 13, 2017).
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whether either party has an actual need for alimony or
maintenance and whether either party has the ability to pay
alimony or maintenance. If the court finds that a party has a
need for alimony or maintenance and that the other party has
the ability to pay alimony or maintenance, then in determining
the proper type and amount of alimony or maintenance under
subsections (5)-(8), the court shall consider all relevant
factors, including, but not limited to:
....
(e) The earning capacities, educational levels, vocational skills,
and employability of the parties and, when applicable, the
time necessary for either party to acquire sufficient education
or training to enable such party to find appropriate
employment.
....
(i) All sources of income available to either party, including
income available to either party through investments of any
asset held by that party.
(j) Any other factor necessary to do equity and justice between
the parties.
The monthly income a person receives once he or she applies for Social
Security benefits depends on several factors, including the person’s age
when applying for benefits, the person’s full retirement age, how long the
person worked, and how much the person earned. See 42 U.S.C. §§ 402-
415. However, an individual who elects to receive benefits before full
retirement age will suffer a permanent reduction in benefits. See 42 U.S.C.
§ 402(q)(1) (2015).
It is well-established that Social Security benefits a party receives can
be properly considered as income in awarding alimony. See Lamont v.
Lamont, 851 So. 2d 898, 899 (Fla. 4th DCA 2003). However, the question
here is different: whether Social Security benefits should be imputed as
income where a person is eligible to receive benefits, but has not yet
applied for or received them.
Here, Wife was not receiving Social Security benefits from the SSA when
the trial court decided alimony. The evidence instead shows that Wife
chose not to receive her Social Security benefits because she determined
that the economic value of receiving the benefits early was outweighed by
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the benefit of electing to receive them later. Because Wife was not receiving
payments from the SSA, these deferred benefits were not currently
available income to Wife. Only those benefits that are paid from the SSA
and delivered to the recipient may be considered part of a party’s income
for purposes of calculating alimony under section 61.08.
Although there are no Florida cases directly on point, the rationale of
Moore v. Moore, 619 N.W.2d 723 (Mich. Ct. App. 2000), supports our
conclusion. In Moore, the wife requested that the trial court increase her
alimony award, but the husband objected because the wife had not
exercised her ability to collect payments from her pension. Id. at 724. The
husband argued that the potential pension benefits should be imputed as
part of the wife’s income. Id. The trial court refused to impute the
potential pension income, and stated that it would not consider the
pension benefits as income to either party until that party began receiving
the pension benefits. Id. The Michigan Court of Appeals held:
In this case, in determining whether imputing income to
plaintiff was appropriate, the court should have considered
whether plaintiff could elect to draw her share of the pension
now without any reduction in benefits. If this is the case, we
believe that plaintiff would be voluntarily reducing her income
. . . On the other hand, if by taking her share of the pension
now she would receive a reduced amount, it is inappropriate
to impute the pension benefits as income. For plaintiff to defer
election of pension benefits to a later date when the benefits
would be larger should not be viewed as a voluntary reduction
in income, but rather as a possibly prudent investment
strategy.
Id. at 725 (emphasis added).
We agree with the Moore court’s conclusion. If the evidence shows that
a party would receive the same Social Security benefits regardless of when
he or she elected to receive the distributions, and absent some other
compelling reason, then the decision to defer the benefits may properly be
characterized as a voluntary reduction in income. But if the evidence
shows that a party would receive larger benefits if he or she decided to
defer the benefits until a later time, and absent any evidence suggesting a
contrary motivation, then such a decision could properly be characterized
as a prudent investment strategy and thus not subject to imputation.
We recognize that a putative recipient’s motivation is not dispositive for
the purposes of the trial court’s decision, and in some situations, it is not
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relevant at all. But as we have previously held, a party’s motivation in
voluntarily reducing his or her income can be an appropriate factor for the
trial court to consider in determining a party’s ability to pay. See Zarycki-
Weig v. Weig, 25 So. 3d 573, 575 (Fla. 4th DCA 2009). Here, there was no
evidence of any bad faith on Wife’s part, and she articulated a rational
reason for delaying her application for Social Security benefits—namely,
that she would receive greater benefits by postponing her receipt of
benefits until the age of sixty-five.
By this opinion, we do not intend to create a rule that income should
never be imputed based on eligibility for government benefits; furthermore,
a bright-line rule is not only unnecessary in light of existing case law, but
also inadvisable. See Rimer v. Rimer, 605 S.E.2d 572, 575 (S.C. Ct. App.
2004) (holding that formulaic principles and bright-line rules will only
hinder a trial court’s discretion in such a fact-intensive area of law).
Therefore, under appropriate circumstances, a trial court might properly
consider eligibility for government benefits and impute them as income, or
make other determinations based on a party’s eligibility to receive Social
Security benefits. See Faber v. Faber, No. 46464-1-II, 2016 WL 236468(Wash. Ct. App. Jan. 19, 2016) (“[T]he possibility that one or both parties
may receive Social Security benefits is a factor the court may consider in
making its distribution of property.”); Clarke v. Clarke, 823 N.W.2d 318,
324 (Mich. Ct. App. 2012) (holding that if a party would receive the same
Social Security benefits regardless of when the benefits are received, then
absent compelling reasons, the decision to defer the benefits may be
deemed a voluntary reduction of income). Cf. Searcey v. Searcey, 923 So.
2d 528, 530 (Fla. 2d DCA 2006) (“[The trial court] may not consider any
possible future social security payments to the [spouse when deciding
alimony].”).
The trial court effectively equated Wife’s decision to postpone applying
for Social Security benefits with voluntary underemployment such that
Wife’s eligibility to receive those benefits was imputed to her as income.
Under the circumstances of this case, this was error. We hold that when
the evidence establishes that a party has declined to receive early Social
Security retirement benefits to receive higher benefits later, this alone does
not demonstrate an unexercised ability to earn. Therefore, we reverse and
remand for the trial court to reconsider the factors enumerated in section
61.08(2), without incorporating Wife’s unpaid Social Security benefits into
the calculation of her imputed monthly income for the purposes of
establishing an alimony award. We affirm without comment on all other
issues raised on appeal.
Affirmed in part, reversed in part and remanded.
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GROSS and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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