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Date: 01-08-2020
Case Style:
PETER CURA vs FAYE CURA
Case Number: 3D18-1126
Judge: Anthony Miller
Court: Third District Court of Appeal State of Florida
Plaintiff's Attorney:
Defendant's Attorney:
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In June of 2014, after seventeen years of marriage and amidst renovations of
a home in Miami-Dade County, the parties separated. At the time, the wife and three
minor children of the marriage were temporarily residing with the husband’s mother
in Palm Beach County. The wife secured her own living quarters, and on February
24, 2016, filed a petition for dissolution. Thereafter, she sought an award of
temporary alimony and child support for the parties’ three children, on an emergency
basis.
The lower tribunal duly convened a multi-day evidentiary hearing, wherein
the wife adduced evidence of a formerly lavish lifestyle. She detailed the husband’s
serial acquisition of luxury vehicles, exotic vacations, successful global business
conquests, purchase of numerous pieces of jewelry adorned with precious stones,
provision of private schooling for the children, and accumulation of significant
wealth, along with an array of gold and silver bars.
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During the hearing, the court was apprised that, immediately prior to their
uncoupling, the parties sold a valuable parcel of jointly owned real property. Shortly
after the separation, the husband conveyed a second parcel of real property to his
mother and purportedly encumbered a third parcel of property, held in trust, with an
appreciable mortgage, for the benefit of a confidant. The husband also liquidated
several investments, including overseas holdings. Nonetheless, he was unable to
offer an explanation as to the whereabouts of any of the proceeds garnered from this
series of transactions.
The husband asserted he was wholly dependent upon his mother and lacked
any access to either tenable employment or financial resources. The wife countered
that the husband continued to enjoy a substantial lifestyle, consisting of travel,
private flight lessons, and the retention of an extensive collection of luxury goods.
She further contended he was the recipient of regular, periodic gifts from his mother
and was intentionally unemployed in a calculated effort to circumvent future court
ordered obligations and persisted in dissipating marital assets by squandering funds
on his paramour.
The wife described her own vocational adversities, precipitated by the
confiscation of her motor vehicle, at the hands of her mother-in-law. Additionally,
the wife testified she was compelled to leverage her personal property in order to
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finance legal representation and seek advances from her employer to secure housing
for herself and the children.
At the conclusion of the hearing, the lower tribunal issued detailed factual
findings, giving credence to the testimony of the wife and wholly discrediting the
husband, and imputed a modest income to the husband. The court further awarded
temporary alimony in the amount of $2,000.00 per month and temporary child
support in the amount of $152.08 per month. Both alimony and child support were
ordered retroactive to the date of the parties’ separation. The instant appeal ensued. STANDARD OF REVIEW “The trial court’s decision regarding imputation of income for purposes of
calculating child-support [and alimony] obligations is reviewed for abuse of discretion.” Dep’t of Revenue v. Llamas, 196 So. 3d 1267, 1269 (Fla. 1st DCA
2016) (citation omitted). Likewise, we review awards of temporary alimony and
child support for an abuse of discretion. Troike v. Troike, 271 So. 3d 1069, 1072
n.3 (Fla. 3d DCA 2019) (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla.
1980)). Such discretion is broadly construed. See Lopez v. Lopez, 994 So. 2d 374,
375 (Fla. 3d DCA 2008).
LEGAL ANALYSIS The primary claim of error is asserted in the imputation income to the father
for purposes of calculating temporary alimony and child support. It is well
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established that “[a] trial court may impute income . . . for purposes of calculating a
support award.” Sallaberry v. Sallaberry, 27 So. 3d 234, 236 (Fla. 4th DCA 2010);
see § 61.30(2)(b), Fla. Stat. (2019). “The very concept of imputed income is to
require those who are able to do so to contribute to their support or to the support of
those for whom they are responsible.” Daly v. Daly, 679 So. 2d 36, 37 (Fla. 5th
DCA 1996).
Accordingly, in determining the propriety of a child support award,
“[m]onthly 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, absent a finding of fact by the court of physical or mental
incapacity or other circumstances over which the parent has no control.” §
61.30(2)(b), Fla. Stat. (2019). Similarly, “[i]n computing an alimony award where
one spouse has become unemployed, the court must [first] consider whether that change in circumstance was voluntary.” Lafferty v. Lafferty, 134 So. 3d 1142, 1144 (Fla. 2d DCA 2014) (citation omitted). In the event the court concludes the spouse
“has not been diligent in finding replacement income, the court should, based on
competent, substantial evidence, impute income to that party.” Id. (citation omitted).
“Where there is insufficient evidence to determine the amount to impute, there is a
presumption based on the spouse’s historical earnings that arises.” Id. at 1145.
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Here, the trial court astutely reconciled the contested facts adduced, and, after
determining testimonial reliability, dismissed the husband’s justification for failing
to obtain suitable employment as patently unreasonable. The court rendered the
conclusion that the husband was voluntarily unemployed and continued to fund his
own pursuits. Giving due consideration to the husband’s current prospects, “recent
work history, occupational qualifications, and prevailing earnings level in the
community,” along with all relevant economic factors, the court conservatively
imputed a modest income. § 61.30(2)(b), Fla. Stat. Because the findings below are
supported by “competent, substantial evidence,” and the child support award
correlates with the child support guidelines, we discern no error in either the imputation of income or the award of child support. Rabbath v. Farid, 4 So. 3d 778, 780 (Fla. 1st DCA 2009) (citation omitted).
However, as the lower tribunal ordered temporary alimony retroactive to the
date of separation and failed to pen findings regarding the historical needs of the
wife from said date until the date of the award, a body of well-entrenched
jurisprudence requires remand. See Gremel v. Gremel, 45 So. 3d 978, 980 (Fla. 2d
DCA 2010) (“On remand, the trial court must consider the Wife’s need and the Husband’s ability to pay during that time period in determining whether the Wife’s retroactive alimony request is appropriate.”) (emphasis added) (citation omitted);
see also Vitro v. Vitro, 122 So. 3d 382, 385 (Fla. 4th DCA 2012) (remanding an
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award of temporary alimony, retroactive to the date of separation, for the trial court
to perform “a reassessment of the amount owed by Former Husband to Former Wife,
specifically considering the date to which alimony should relate back”).
Outcome: Accordingly, we reverse and remand for the trial court “to make the proper findings of past need and ability to pay.” Henry v. Henry, 191 So. 3d 995, 999 (Fla.
4th DCA 2016).1 We affirm in all other respects.
Plaintiff's Experts:
Defendant's Experts:
Comments: