ANEMEY K. HUERTAS DEL PINO, Appellant,
CARLOS E. HUERTAS DEL PINO, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Fifteenth Judicial Circuit,
Palm Beach County; Jessica Ticktin, Judge; L.T. Case No.
Ann Behar of BeharBehar, Sunrise, for appellant.
appearance for appellee.
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.
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).
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. 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
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.
argues that her Social Security benefits may not be included
as income unless she receives payments from the Social
Security Administration ("SSA"). Under section
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 ...