final until disposition of timely filed motion for rehearing.
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.
Christopher DeSantis, Stuart, for appellant.
Michael Rebuck of Michael Todd Rebuck, P.A., Palm City, for
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.
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.
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).
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.
and Damoorgian, JJ., concur.
Warner, J., concurring specially.
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.
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), ...