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Heard v. Perales

Florida Court of Appeals, Fourth District

May 16, 2018

JENNIFER HEARD, Appellant,
v.
MIGUEL PERALES, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal and cross-appeal from the Circuit Court for the Nineteenth Judicial Circuit; Martin County, Michael J. McNicholas, Judge; L.T. Case No. 2010-DR-948.

          E. Christopher DeSantis, Stuart, for appellant.

          Michael Rebuck of Michael Todd Rebuck, P.A., Palm City, for appellee.

          PER CURIAM.

         The mother appeals, and the father cross-appeals, a final judgment of child support in which the court imputed income to the mother at minimum wage. The court entered the final judgment after this court reversed a prior final judgment imputing income. Heard v. Perales, 189 So.3d 834 (Fla. 4th DCA 2015). The mother contends that the court exceeded the appellate mandate in holding a new hearing on the issue and abused its discretion in imputing any income to her. The father contends that the court erred in failing to impute income at the level of her prior employment or at least at the average median wage of the community. We conclude that the court did not abuse its discretion in the imputation of income and affirm.

         The trial court rejected the mother's evidence of her inability to obtain a job because of her need for accommodations in employment. It concluded that she had worked for ten years with her claimed disabilities and had made substantial income, although that level was no longer available to her. It concluded that her job search was not adequate. On the father's claim, the court rejected the use of the mother's prior earnings because the court found that the mother could not duplicate those earnings. It also refused to impute the U.S. Census Bureau median level of income, because the level placed in evidence by the father was not for the year 2014, as the court interpreted our mandate as requiring reconsideration as of the date of the prior final judgment.

         The court did not exceed our mandate in holding a new hearing. See Brennan v. Brennan, 184 So.3d 583, 588 (Fla. 4th DCA 2016). Moreover, the case was heard by a successor judge, and "a successor judge may not enter an order or judgment based upon evidence heard by the predecessor." Beattie v. Beattie, 536 So.2d 1078, 1079 (Fla. 4th DCA 1988); accord Alcenat v. Alcenat, 989 So.2d 738, 739 (Fla. 4th DCA 2008).

         "The imputation of income will be affirmed if supported by competent, substantial evidence." Hudson-McCann v. McCann, 50 So.3d 735, 737 (Fla. 5th DCA 2010). Here, there was evidence to support the court's rejection of the mother's contention that she was unable to work. She had worked for ten years with her claimed disabilities, and her applications for employment showed that jobs were available. The court concluded that her job search was not adequate. The mother had the ability to work with her limitations in her prior occupation, and there was no showing that her disabilities prevented her from obtaining a job. The court rejected the father's contention that income commensurate to her income at her prior employment should be attributed to her. There was evidence that because of the circumstances of her termination, she would not be employable in comparable positions in the future. It also refused to impute the U.S. Census Bureau median level of income, because the level placed in evidence by the father was not for the year 2014, the year for determining the income level for the wife based on the prior hearing. The court imputed minimum wage income to the mother. Because section 61.30, Florida Statutes (2014), requires that each parent support the child, we conclude that once the court found that the mother was able to work, the court was required to impute some level of income to her. Given the paucity of evidence to support a level of income other than that rejected by the trial court, the court did not abuse its discretion.

         Affirmed.

          May and Damoorgian, JJ., concur.

          Warner, J., concurring specially.

         While I concur in the majority opinion, had the father argued that section 61.30(1), Florida Statutes (2014), requires imputation of U.S. Census Bureau median income where the presumption of its application is not refuted, I would have reversed for a new hearing.

         The parties and the trial court relied on Schram v. Schram, 932 So.2d 245 (Fla. 4th DCA 2005). We explained in Heard v. Perales, 189 So.3d 834, 836 (Fla. 4th DCA 2015), ...


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