Attorney Wins Reversal in Tampa Family Law Appeal

Another victory for a client. This week, in Allison v. Allison, 363 So. 3d 1129, 1130 (Fla. 2d DCA 2023), the Second District Court of Appeal ruled in our favor after we challenged a Tampa trial court’s imputation of income to our family law client in a post-dissolution modification proceeding.

Our client is a flight attendant who balances her work with time for homeschooling her children and caring for her family. During the marriage, for almost twenty years, she only ever worked part-time, based out of New Jersey. In 2023, her former husband asked the trial court to impute her the income of a full-time attendant, for purposes of alimony and child-care payments, arguing that she was voluntarily underemployed and should relocate her job to Tampa, Florida.

Despite her history of part-time employment and a lack of proof that she could obtain full-time employment, relocate to Florida, and still maintain her seniority, the trial court found that she had voluntarily cut her hours in half by engaging in a “line-share” agreement that gave her a flexible schedule.

We appealed on our client’s behalf, arguing that the trial court erred in doubling her historic income, ruling that she should relocate, finding without proof that her mother could care for her children, and imputing income without making the required findings. We also argued the trial court erroneously shifted the burden of proof to our client to show that income should not be imputed.

The Second District Court of Appeal agreed with our major points, ruling:

Viewed in context, the magistrate's findings and analysis make clear that the burden was placed upon the Former Wife below to avoid imputation of income. Indeed, that is precisely what the Former Husband's counsel had proposed. Because Florida law places the burden of proof squarely upon the party requesting imputation, we reverse this determination made under an incorrect legal standard.

Allison v. Allison, 363 So. 3d 1129, 1133 (Fla. 2d DCA 2023).

The Second District Court of Appeal also agreed with our argument on the childcare issue, ruling:

In addition, the court erred in adopting the magistrate's finding of underemployment on the basis that the maternal grandmother would be able to take care of the children if the Former Wife worked full time. Similar to the prior issue, the court improperly placed the burden on the Former Wife to prove that the maternal grandmother was not available.

In finding that the maternal grandmother “is capable of caring for the children in the Former Wife's absence,” the magistrate expressly reasoned that the Former Wife had provided “no reason why she cannot leave her children with her mother” and gave “no indication that her mother is not able to care for the children while the Former Wife worked.” The only evidentiary basis identified for the finding was the Former Husband's testimony that “he has picked up the children from the Former Wife's mother when the Former Wife was not present.”

But the mere fact that the maternal grandmother has helped in limited, unquantified ways in the past is not competent, substantial evidence to support the conclusion that she would regularly be available to care for the children if the Former Wife began working full time. At most, the evidence supported that she had helped from time to time, without any quantification or material context.

Allison v. Allison, 363 So. 3d 1129, 1135 (Fla. 2d DCA 2023).

Most importantly, however, the appellate court ruled that because the trial court had already held two proceedings on the issue, the court was required to accept our client’s unrebutted testimony on the issues and to reconsider imputation in light of that testimony under the appropriate standard of proof.