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Del Pino v. Del Pino

Florida Court of Appeals, Fourth District

November 1, 2017


         Not final until disposition of timely filed motion for rehearing.

         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 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 ...

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