Date: 04-15-2022

Case Style:

KENZIE SADLAK vs FRANK TRUJILLO

Case Number: 3D20-1575

Judge: Fleur J. Lobree

Court:

Third District Court of Appeal State of Florida

On appeal from The Circuit Court for Miami-Dade County

Plaintiff's Attorney:

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Defendant's Attorney: Richard F. Joyce

Description:

Miami, FL - Paternity lawyer represented Appellant with a paternity suit.

Although the factual and procedural history of this contentious family
law matter is lengthy, we confine the facts to the narrow issues addressed
on appeal. The mother and father are the parents of two minor children. The
1 Among the multiple orders from which the mother seeks review, the mother
challenges the trial court’s July 10, 2020 order granting the father’s motion
for protective order and for sanctions, which determined that the father was
entitled to attorneys’ fees. Because the order merely found entitlement to
attorneys’ fees but did not set an amount, we dismiss that portion of the
appeal as taken from a non-final, non-appealable order. Kling Corp. v. Hola
Networks Corp., 127 So. 3d 833 (Fla. 3d DCA 2013).
3
father petitioned to establish parental responsibility, parenting plan,
timesharing, and other related relief, seeking shared parental responsibility,
primary timesharing, and child support. The mother counter-petitioned,
seeking sole parental responsibility, the majority of timesharing, supervised
visitation by the father, and child support. The case proceeded to trial.
At trial, the mother, a self-employed attorney, testified that she earns
a monthly gross income of $1,008.98, and that with in-kind payments, her
monthly net is $1,215.73. On the issue of imputation of income to the
mother, the father called a vocational expert, Tamara Thomas. Thomas
testified that the mother held a Florida Bar license and a real estate associate
license. Based upon the mother’s representations to her, Thomas testified
that the mother works full time in her own law firm and has since 2009, and
that she makes between $14,000 to $20,000 a year. Thomas opined that
the mother was underemployed, and testified about available job listings that
she found for attorneys within the mother’s practice area. Thomas further
testified that the mother was employable as an attorney, paralegal, or as a
community association manager (“CAM”), “should she become licensed in
that field.” Thomas also recommended that a CAM license “would be helpful
if she were to pursue jobs in that arena,” and that salaries for community
association managers were $42,630 to $76,150 per year.
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In its final judgment of paternity, the trial court awarded shared parental
responsibility as to all medical, educational, mental, and emotional decisions
of the children, and equal timesharing, with the children alternating
weekends with the mother and father, and spending Monday-Tuesday with
the mother, and Wednesday-Thursday, with the father. The remaining
details about shared parental responsibility and timesharing were set forth in
the parenting plan, which the trial court refers to as attached Exhibit A. The
parenting plan is not attached to the final judgment. In determining the
amount of child support needed, the trial court found that the mother was
willfully underemployed and imputed to her an income of $76,000.00 based
on a position as a CAM, “since she holds an active CAM license.” As to the
father, the trial court found he has a gross monthly income of $4,116.76. The
trial court ordered the mother to pay the father $361.57 a month in child
support, based on child support guidelines, which the trial court refers to as
attached Exhibit B. Despite its reference, no child support guidelines
worksheet was attached to the final judgment. Five days after the final
judgment was entered, the father filed a parenting plan and a completed child
support guidelines worksheet, stating they were the exhibits referenced in
the final judgment. The mother unsuccessfully moved for rehearing, and this
appeal followed.
5
Analysis
On appeal, the mother argues that the imputation of income to her is
not supported by competent substantial evidence. “A trial court’s decision
on whether to impute income is reviewed for an abuse of discretion . . . .”
Saario v. Tiller, 333 So. 3d 315, 321 (Fla. 5th DCA 2022). But “[t]he
framework the court uses to determine whether imputation is necessary and,
if so, how to calculate an amount is an issue of law we review de novo.”
Waldera v. Waldera, 306 So. 3d 1037, 1039 (Fla. 3d DCA 2020) (quoting
Lafferty v. Lafferty, 134 So. 3d 1142, 1144 (Fla. 2d DCA 2014)). “[T]he
amount of income to impute will be affirmed if supported by competent
substantial evidence.” Saario, 333 So. 3d 315 at 321.
We affirm the trial court’s finding that the mother is willfully
underemployed without discussion. We find merit, however, to the mother’s
claim that the child support award was based on an erroneous amount of
imputed income. Where a parent’s underemployment is voluntary, “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.” § 61.30(2)(b), Fla. Stat. (2020); see also Waldera,
306 So. 3d at 1041; Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA
6
2015). Moreover, “income may not be imputed at a level which the former
spouse has never earned, absent special circumstances.” Stein v. Stein, 701
So. 2d 381, 381 (Fla. 4th DCA 1997); see also § 61.30(2)(b)2.b.; Tutt v.
Hudson, 299 So. 3d 568, 570 (Fla. 2d DCA 2020).
Here, the record lacks competent substantial evidence that the mother
was qualified for employment as a CAM or that she had the ability to earn
$76,000 a year as a CAM in the relevant community. First, contrary to the
trial court’s finding, there was no evidence that the mother had, or has ever
had, a CAM license. Thus, the trial court’s reliance on that fact to impute
income is not supported by the evidence. Second, any calculation as to
amount of imputed income must consider evidence of the “prevailing
earnings level in the community.” Gillespie v. Holdsworth, 333 So. 3d 278,
280 (Fla. 2d DCA 2022) (quoting § 61.30(2)(b)). While Thomas testified that
the mother could, if licensed, work as a CAM and earn between $57,800 and
$76,000 a year, her opinion as to an annual salary was based upon data
from “[t]he bureau of labor market statistics.” Thomas did not testify that the
market statistics reflected salaries for CAMs in the community. Additionally,
Thomas offered no testimony that there were CAM positions available to the
mother in the local market. See Owen v. Owen, 867 So. 2d 1222, 1223 (Fla.
5th DCA 2004) (finding error in amount of income imputed to former wife
7
where only evidence admitted were reports stating national median salaries
for relevant position and “[n]either of these reports specifically address the
availability of jobs in the area where the former wife resides nor the salary
payable for jobs in the Central Florida area or, for that matter, in any
community”). Third, it was error to impute to the mother an annual income
in the amount of $76,000 because the evidence showed that the mother had
never earned more than $65,000 a year. Thus, as to the amount of income
imputed to the mother, the trial court’s finding was not supported by
competent substantial evidence.
The mother correctly asserts that the trial court further erred when it
made findings in the final judgment as to each party’s gross income only, not
net income, and failed to file a child support guidelines worksheet with its
final judgment. The statutory child support guidelines are applied to the
parties’ combined net income. § 61.30(6), Fla. Stat. (2020). The trial court
is required to make adequate findings as to each party’s net income in the
final judgment. Garcia v. Espinosa, 314 So. 3d 619, 624 (Fla. 3d DCA 2021)
(“The trial court must determine the net income of each parent pursuant to
section 61.30, and it must include these findings in the final judgment.”); Van
Exter v. Diodonet-Molina, 152 So. 3d 699, 701 (Fla. 3d DCA 2014) (“The trial
court must determine the net income of each parent pursuant to section
8
61.30, Florida Statutes, and include the findings in the final judgment.”). In
order to conduct meaningful appellate review of an award of child support, a
trial court must also include a child support guidelines worksheet in the the
final judgment. Garcia, 314 So. 3d at 625 (“There is also no child support
guidelines worksheet filed by the trial court to conduct a meaningful appellate
review of the award.”); accord Haddad v. Medina, 320 So. 3d 990, 991 (Fla.
3d DCA 2021) (reversing amended final judgment where trial court had yet
to approve or file revised child support guidelines worksheets and explaining
that in Garcia this Court held that “the trial court’s failure to include a child
support guidelines worksheet in the final judgment precluded this Court from
conducting a meaningful appellate review of the award and warranted
reversal”); see also Dorvilien v. Verty, 47 Fla. L. Weekly D707 (Fla. 4th DCA
Mar. 23, 2022) (stating rule that failure to attach child support guidelines
worksheet to final order is reversible error).
Here, the final judgment made findings only as to each party’s gross
income, and based its determination that the mother pay $361.57 per month
in child support on “the child support guidelines attached hereto as exhibit
‘B,’” which, undisputedly, was not attached to the final judgment. The
guidelines worksheet in the record showing that the mother is responsible
for $361.57 per month in child support was filed by the father a week after
9
the trial court entered the final judgment. The worksheet was not filed or
approved by the trial court at the time it entered final judgment. See §
61.13(1)(a)1.b. (requiring that child support orders provide a payment
schedule “based on the record existing at the time of the order”); cf. Fla. Fam.
L. R. P. 12.285(k) (“If the case involves child support, the parties must file
with the court at or before a hearing to establish or modify child support a
Child Support Guidelines Worksheet . . . .”). The failure of the trial court to
make findings as to the net income of each party and to include a child
support guidelines worksheet in its final judgment warrant reversal for
reconsideration of the proper amount of child support needed based upon
the parties’ net income. See Garcia, 314 So. 3d at 625 (“Because the trial
court failed to make specific findings as to the combined net income . . . and
to include a child support guidelines worksheet, we reverse the child support
determination and remand for reconsideration as to the proper amount of
support owed.”); see also J.A.D. v. K.M.A., 264 So. 3d 1080, 1083 (Fla. 2d
DCA 2019) (reversing child support award because the absence of specific
findings as to net income meant that “this court cannot conduct a meaningful
appellate review. . . . Additionally, the trial court did not include in the final
judgment a child support guidelines worksheet.”); Carmack v. Carmack, 277
So. 3d 185, 186–87 n.1 (Fla. 2d DCA 2019) (holding that “[b]ecause the final
10
judgment fails to include factual findings regarding the parties’ net monthly
incomes, this court cannot conduct a meaningful appellate review of the child
support award,” and reversing child support award; noting “that the trial court
erred in failing to file a child support guidelines worksheet with the final
judgment”). Likewise, we find error in the trial court’s failure to attach the
parenting plan, cf. Magdziak v. Sullivan, 185 So. 3d 1292, 1293 (Fla. 5th
DCA 2016), and we direct the trial court on remand to approve and attach
the parenting plan filed in the record, concerning which the mother raises no
meritorious claims of error.

Outcome: Because the trial court erred in determining the amount of income to
impute to the mother, and further erred in not making findings as to net
income and in failing to include a child support guidelines worksheet in its
final judgment, we are compelled to reverse and remand for a new hearing
on child support. On remand, the trial court may consider new evidence.
See Waldera, 306 So. 3d at 1044 (“On remand, the lower court may receive
new evidence on the husband’s income, as well as on the former wife’s
imputed income.”). We also instruct the trial court to approve and attach the
parenting plan on remand.

Affirmed in part; reversed in part and remanded; dismissed in part

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