Amanda Sheff v. Michael Kevin Sheff

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

AMANDA SHEFF,
Appellant,

v.

MICHAEL KEVIN SHEFF,
Appellee.

No. 4D2025-0673

[June 3, 2026]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Lorena V. Mastrarrigo, Judge; L.T. Case No.
062023DR003055AXXXCE.

Jonathan Thomas Mann and Robin I. Bresky of Schwartz Sladkus
Reich Greenberg Atlas LLP, Boca Raton, for appellant.

Nancy A. Hass of Nancy A. Hass, P.A., Hollywood, for appellee.

PER CURIAM.

The wife appeals a final judgment of dissolution of marriage, arguing
the trial court erred in (1) finding the husband did not have the ability to
pay durational alimony, (2) finding the wife did not have a need for
durational alimony, (3) imputing income to the wife, (4) finding the wife in
contempt for violating an agreed order regarding the children’s cell phones,
(5) denying the wife’s request for attorney’s fees, and (6) denying the wife’s
request to clarify an order reserving jurisdiction on the husband’s
obligation to obtain life insurance to secure his child support payments.
We affirm issues 1 through 5 and write only to address issue 1. We dismiss
issue 6 for lack of jurisdiction.

The parties married in 2009. Two children were born during the
marriage. In 2023, the wife filed a petition for dissolution of marriage. The
husband filed a counterpetition.

At the time of the November 2024 final hearing, the husband, age fifty-
nine, had worked for a global credit card company for approximately eight
years. The husband’s initial position was senior vice president of all
accounts, followed by senior vice president of global strategy, and then vice
president of chief of staff. On November 6, 2023, the husband’s position
of chief of staff was eliminated. On January 1, 2024, he began a six-month
temporary assignment on a special project in the global partnerships and
segments team. The company extended the assignment for an additional
six months, ending on December 31, 2024.

It was unrefuted in the record that the husband’s position at the
company would terminate on December 31, 2024—the month following
the final hearing. The parties agreed to this in a pretrial stipulation, and
the husband testified to this during the hearing. The husband had not
been offered any further or new positions at the company. The husband
did not expect to get another extension working in the global partnerships
and segments team.

The husband testified he had reached out to friends, colleagues, and
human resources, but was unsuccessful in securing another position at
the company. The company was downsizing, and his background and skill
set did not align with the job requirements for the few open positions. The
husband expressed concern about his ability to earn anywhere near what
he had earned in the past.

A company representative confirmed that the husband’s special
assignment was set to terminate on December 31, 2024, and that no new
assignment had been offered. The wife agreed there was no evidence that
the husband would have a job with the company after December 31, 2024.

The husband’s CPA ascribed an income to the husband of $62,350 per
year based on the U.S. Census Bureau’s median earnings. In contrast,
the wife did not present any evidence of the husband’s potential earning
levels or job prospects. Instead, she elicited testimony only about the
husband’s past earnings. During his employment with the company, the
husband earned a base salary of $300,000 to $305,000 plus bonuses and
stocks. The parties’ tax returns showed the husband earned $706,088 in
2020, $663,762 in 2021, $707,900 in 2022, and $627,557 in 2023.

The trial court entered a final judgment for dissolution of marriage,
awarding the wife $7,000 a month in temporary alimony, retroactive to
July 2023 through December 2024. The trial court denied the wife’s
request for durational alimony, finding that the husband did not have the
ability to pay alimony after December 31, 2024, as he would no longer be
employed as of January 1, 2025. The trial court also found that the wife
did not have a need for durational alimony, based on her receiving over $1
million under the equitable distribution as well as her imputed income.

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After the trial court denied her motion for rehearing, the wife appealed.

The wife argues the trial court’s finding that the husband had no ability
to pay alimony after December 31, 2024, was based on impermissible
speculation and not competent substantial evidence. The wife further
argues that the evidence showed the husband earned $600,000 to
$700,000 a year.

“A trial court’s alimony determination is reviewed using an abuse of
discretion standard.” Addie v. Coale, 120 So. 3d 44, 46 (Fla. 4th DCA
2013).

In determining whether to award alimony, the trial court must make a
factual determination as to need and ability to pay. § 61.08(2)(a), Fla. Stat.
(2023). The party seeking support has the burden of proving his or her
need and the other party’s ability to pay. Id.; see also Wallace v. Wallace,
418 So. 3d 148, 153 (Fla. 4th DCA 2025) (“The party seeking alimony has
the burden to prove his or her financial need and the other party’s ability
to pay.”) (citation omitted) (emphasis added).

In the instant case, the wife did not meet her burden of proving the
husband’s ability to pay. It was unrefuted that the husband’s employment
would end on December 31, 2024—a little more than a month after the
final hearing—and that the husband had no job prospects in sight.
Indeed, in the joint pretrial stipulation, the wife agreed that the husband’s
current assignment was ending on December 31, 2024. The wife also
agreed in the pretrial stipulation that the company had not offered the
husband further or new positions commencing after December 31, 2024.

Significantly, the only evidence of the husband’s income after December
31, 2024, was presented by the husband’s CPA. The CPA imputed income
to the husband in the amount of $62,350 per year, based on the U.S.
Census Bureau’s median earnings. 1 The wife did not present any witness,
such as a vocational expert, to testify about the husband’s qualifications,
employability, available jobs, and prevailing earning level in the
community. The wife did not even question the husband about what type
of jobs he was looking for or his efforts to secure new employment outside

1 Section 61.30(2)(b), Florida Statutes (2023), the child support statute,
authorizes the use of the U.S. Census Bureau’s median income where
“information concerning a parent’s income is unavailable” “or a parent fails to
supply adequate financial information.” Courts have borrowed from this statute
in determining the amount to impute for alimony awards. Freilich v. Freilich, 897
So. 2d 537, 543 (Fla. 5th DCA 2005).

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of the company.

Instead, the wife relies solely on the husband’s historic earning levels.
However, “[p]ast average income, unless it reflects current reality, simply
is meaningless in determining a present ability to pay.” Greenberg v.
Greenberg, 793 So. 2d 52, 55-56 (Fla. 4th DCA 2001) (citation omitted);
see also Sallaberry v. Sallaberry, 27 So. 3d 234, 236 (Fla. 4th DCA 2010)
(“[A] trial court may not impute income to a party based solely on past
earning power because past income may not reflect a present ability to
pay.”); Warner v. Warner, 422 So. 3d 1194, 1199 (Fla. 5th DCA 2025)
(finding trial court erred in imputing income based solely on past average
earnings); Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA 2015)
(“[W]hile there is no dispute concerning the former husband’s past work
history, reliance on this factor alone is insufficient to impute income.”);
Freilich, 897 So. 2d at 544 (“It is error for a trial court to base the amount
of imputed income solely on the past earnings . . . .”). Obviously, based
on the record before us, because the husband would no longer be
employed at the company, he would no longer continue to earn $600,000
to $700,000 a year.

“[T]he trial court ‘may only impute a level of income supported by the
evidence of employment potential and probable earnings based on history,
qualifications, and prevailing wages.’” Inman v. Inman, 345 So. 3d 320,
322 (Fla. 4th DCA 2022) (emphasis added) (quoting Koscher v. Koscher,
201 So. 3d 736, 741 (Fla. 4th DCA 2016)). “The spouse claiming income
should be imputed to the unemployed or underemployed spouse bears the
burden of showing both employability and that jobs are available.” Durand
v. Durand, 16 So. 3d 982, 985 (Fla. 4th DCA 2009) (emphasis added); see
also Freilich, 897 So. 2d at 543 (stating that in determining whether to
impute income, a court considers “recent work history, occupational
qualifications, and prevailing earnings level in the community”) (quoting §
61.30(2)(b), Fla. Stat.).

The wife introduced no evidence whatsoever concerning the husband’s
“qualifications” and “prevailing wages,” nor did she present any evidence
of his “employability and that jobs are available.” The wife’s failure to offer
any such evidence precludes imputation of income to the husband in a
greater amount than that ordered by the trial court. See Durand, 16 So.
3d at 985 (reversing the imputation of income to the husband where the
husband was terminated from his job, the husband was making efforts to
find new employment, and the “[w]ife did not carry her burden because
she did not provide evidence that jobs were available”); Rabbath v. Farid,
4 So. 3d 778, 784 (Fla. 1st DCA 2009) (finding error in imputing income
to the appellant where “[n]o evidence was presented regarding the current,

4
prevailing earnings level and the potential source(s) or amount of income
in the pertinent community”); Douglas v. Douglas, 328 So. 3d 1071, 1073
(Fla. 5th DCA 2021) (affirming trial court’s refusal to impute income where
the husband “offered no evidence of what pay rates and jobs were locally
available for which Former Wife was qualified”); McDuffie v. McDuffie, 155
So. 3d 1234, 1236-37 (Fla. 1st DCA 2015) (reversing the trial court’s
decision to impute income to the former wife where the record was “devoid”
of any “evidence of the local job market, the area minimum wage, or the
type of job the former wife could secure that would pay $10 per hour”).

The wife suggests the husband will continue to work at the company,
pointing to past extensions he has been given. However, the wife’s
suggestion is based on pure speculation and conjecture. “In determining
a party’s income for alimony purposes, a court may not speculate on what
might happen in the future but must consider the circumstances that
existed at the time of the final hearing.” Inman, 345 So. 3d at 322. “It is
well settled that alimony awards should be based upon current existing
circumstances and not on possibilities likely but not yet realized.” LaSala
v. LaSala, 806 So. 2d 602, 604 (Fla. 4th DCA 2002).

Here, the “existing circumstance[]” is the husband’s unemployment as
of January 1, 2025. Again, the unrebutted evidence was that the
husband’s employment with the company would end on December 31,
2024, and would not be extended. The wife’s claim that the husband
would continue employment at the company is a mere possibility, at best.2
“[M]ere allegations of employability do not constitute competent,
substantial evidence for imputing income.” Torres v. Torres, 98 So. 3d
1171, 1172 (Fla. 2d DCA 2011) (citation omitted) (finding insufficient
evidence to impute income to the husband where the wife “merely testified
that it was possible that the Husband could work for his previous employer
again and he had been paid at least $50,000 by that employer before he
quit”). 3

Alternatively, the wife argues the trial court should have at least
awarded nominal alimony. “A trial court’s decision regarding nominal
alimony is reviewed for abuse of discretion.” Zarycki-Weig v. Weig, 25 So.

2Not to mention this is in direct contravention of her stipulation that the
husband’s employment would end on December 31, 2024.
3 Because we find the husband did not have the ability to pay alimony, we need

not reach the merits of the wife’s argument that the trial court erred in finding
she did not have a need for alimony.

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3d 573, 576 (Fla. 4th DCA 2009). We find that, based on the evidence
presented, the trial court did not abuse its discretion in declining to award
nominal alimony.

“Florida’s courts have permitted nominal alimony only in narrow
circumstances, where a spouse would be entitled to alimony but for the
paying spouse’s temporary inability to pay, which is reasonably
foreseeable to change in the future.” Atkinson v. Atkinson, 429 So. 3d 526,
528 (Fla. 4th DCA 2026) (emphasis added). “In other words, there must
presently appear in the record foreseeable circumstances to take place in
the future as would at that time support an award of alimony.” Roy v.
Roy, 522 So. 2d 75, 76 (Fla. 4th DCA 1988).

Here, the wife presented no evidence as to the “temporary” nature of
the husband’s inability to pay, or whether the temporary inability will
change in the “reasonably foreseeable” future. This issue suffers from the
same deficiency that precluded imputation of a greater amount of income
to the husband, that being the wife’s failure to present any evidence as to
the husband’s qualifications, available jobs, and prevailing earning levels.
Thus, based on the evidence presented, the trial court did not abuse its
discretion in declining to award nominal alimony. See Zarycki-Weig, 25
So. 3d at 576 (affirming denial of nominal alimony where “[t]he court gave
no indication that it found that the husband’s financial situation might
change, nor would such a finding be supported by the record”). 4

4 The trial court initially, in its oral ruling, stated:

I don’t think the law tells me now that I can leave the door open. I
think in the past you could leave the door open for that, because
there was also permanent alimony back then, and that’s why that
was done, for permanent alimony, to leave the door open. . . . My
ruling is she’ll get alimony till December 1st of 2024. That’s when
he will make his last payment based on what we know today.

However, nothing in the written final judgment suggests the trial court
misunderstood its authority. The written final judgment states: “The Court does
not want to leave the ‘door open’ on alimony and is not granting a minimal
amount of durational alimony.” Notably, the final judgment did not state that
the court “could not” leave the door open. Rather, the trial court appeared to
exercise its discretion and found the evidence did not support an award of
nominal alimony. In any event, the wife did not argue in the motion for rehearing
or on appeal that the trial court misunderstood its authority to award nominal
alimony. See Atkinson, 429 So. 3d at 529 n.1 (recognizing the eliminating of
permanent alimony did not affect the ability of circuit courts to award nominal
alimony). Since this argument was not raised, it is not preserved. Aills v. Boemi,

6
The wife also argues that the trial court abused its discretion as to the
husband’s obligation to obtain life insurance to secure the child support
award. We dismiss this issue for lack of jurisdiction. The trial court has
not yet ordered the husband to obtain life insurance. Rather, the trial
court reserved jurisdiction on this issue. “A judgment is final for the
purposes of an appeal if the judicial labor required has been completed.”
Fin. Intern. Life Ins. Co. of New Mexico v. Beta Tr. Corp., Ltd., 405 So. 2d
306, 307 (Fla. 4th DCA 1981). Because judicial labor has not yet ended
on the issue of life insurance, this issue is not yet appealable. See
Nathanson v. Rishyko, 140 So. 3d 1054, 1055 (Fla. 4th DCA 2014);
Winkelman v. Toll, 632 So. 2d 130, 131-32 (Fla. 4th DCA 1994).

In summary, the trial court did not abuse its discretion in finding the
husband does not have the ability to pay alimony based on the record
before us. The wife’s failure to present any evidence of the husband’s
future ability to pay compels this result and our finding that the trial court
did not abuse its discretion. Thus, we affirm the denial of alimony, we
dismiss the issue of life insurance for lack of jurisdiction, and we affirm
the remaining issues without further discussion.

Affirmed in part; dismissed in part.

LEVINE and CONNER, JJ., concur.
SHEPHERD, J., dissents with opinion.

SHEPHERD, J., dissenting in part.

I would reverse the trial court’s judgment because it failed to award
Former Wife nominal alimony. The majority holds that the trial court was
correct in not imposing nominal alimony upon Former Husband because
Former Wife failed to present testimony from a competing forensic
accountant or other expert to establish Former Husband’s earning
capacity. That reasoning neglects the wealth of evidence upon which the
trial court should have relied to determine it was reasonable that Former
Husband may earn substantially more than the census bureau’s median
income in the future and to safeguard for that eventuality by awarding
nominal alimony. This scenario is the reason why courts award nominal
alimony and reserve jurisdiction to make necessary adjustments in the
future. In addition to ignoring reasons to suppose Former Husband’s
inability to pay alimony was not permanent, the trial court compounded
its error by determining Former Wife did not have a need for alimony based

29 So. 3d 1105, 1108-09 (Fla. 2010).

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on imputing income to her that is not supported by the evidence. Thus, I
respectfully dissent.

Section 61.08(2)(a), Florida Statutes (2023), states:

In determining whether to award . . . alimony, the court shall
first make a specific, factual determination as to whether the
party seeking . . . alimony has an actual need for it and
whether the other party has the ability to pay . . . alimony.
The party seeking . . . alimony has the burden of proving his
or her need for . . . alimony and the other party’s ability to pay
. . . alimony.

§ 61.08(2)(a), Fla. Stat. (2023).

Nominal alimony “has been generally ordered where the only missing
element of one party’s [ ] alimony claim is the other party’s present ability
to pay, and there is reason to suppose that inability may not be permanent.
The award of nominal [ ] alimony is particularly likely where one party
historically enjoyed a healthy income which became anemic coincidental
to divorce proceedings.” 23 Fla. Prac., Florida Family Law § 12:13 (2025)
(emphasis added). “Indeed, there is a positive rule of law requiring the
award of nominal alimony when the need exists but cannot currently be
funded.” Id.; see Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2d DCA 2008);
Ayra v. Ayra, 148 So. 3d 142 (Fla. 2d DCA 2014).

“The standard of review for a trial court’s determination of alimony is
abuse of discretion.” Inman v. Inman, 345 So. 3d 320, 323 (Fla. 4th DCA
2022) (citing Rabadan v. Rabadan, 322 So. 3d 660, 661 (Fla. 4th DCA
2021)).

The trial testimony is outlined by the majority. Here, competent,
substantial evidence showed Former Wife had a need for alimony and that
Former Husband’s inability to pay alimony would not be permanent.
Former Husband testified as follows. He was employed by a large regional
bank in mergers and acquisitions for six years before he accepted
employment with the global credit card company. He worked for the
company since 2016 and had been working continuously for the company
since then. He was Senior Vice President of all accounts, initially earning
a base salary of $300,000 per year. After approximately three years, he
was given the position of Senior Vice President of Global Strategy for
another three years until he became Vice President and Chief of Staff in
2022, with a base salary of $305,000. He received a bonus each year from
the company and restricted stock units most years. He earned $706,088

8
in 2020, $663,762 in 2021, $707,900 in 2022, and $627,557 in 2023. He
had earned $600,311 year-to-date as of October 15, 2024. He would
receive an additional $63,500 in base salary if he remained employed
through December 31, 2024, for a total of $663,811.

The parties stipulated that as of January 1, 2025, Former Husband’s
employment with the company would end and, although he was actively
seeking comparable employment, he had not yet secured a new position.
Former Husband’s forensic accountant suggested that the trial court
should impute income to him of $62,350 per year based on the U.S.
Census Bureau’s median earnings. The trial court did just that.

The trial court found Former Husband’s evidence to be credible. Even
accepting that determination, the evidence demonstrates that his earning
potential is far greater than $62,350. I disagree with the majority that
Former Wife failed to present evidence of his current and historical earning
capability for the trial court to consider regarding nominal alimony.
Former Wife’s failure to provide additional evidence in the form of an expert
witness was not dispositive on the issue of nominal alimony. Without
speculating, the trial court should have used a common sense approach
to evaluate the record evidence because it held competent, substantial
proof of Former Husband’s earning potential.

Expert testimony is not required for the trial court to determine need
for alimony and ability to pay. See Rodriguez v. Medero, 17 So. 3d 867,
870 (Fla. 4th DCA 2009) (“The record does not support the trial court’s
finding that the former wife is voluntarily underemployed and currently
capable [of] working full-time. The trial court improperly placed the
burden on the former wife to prove her inability to work through expert
testimony.”); Iarussi v. Iarussi, 353 So. 3d 75 (Fla. 1st DCA 2022)
(explaining that a trial court can reject an expert’s testimony where the
testimony conflicts with other evidence).

The trial court should have considered Former Husband’s work history
and historic income when determining whether nominal alimony should
be awarded, but failed to do so. Nourse v. Nourse, 948 So. 2d 903 (Fla. 2d
DCA 2007), is particularly instructive on this point. In Nourse, because
the husband was losing his job in three to five years, the wife sought
nominal permanent alimony. The district court agreed nominal
permanent alimony was required:

Based on the evidence presented, the trial court’s finding that
the wife ‘will be able to regain some type of employability once
the stress of the divorce is concluded’ [wa]s not supported by

9
competent, substantial evidence in the record. Therefore, we
conclude that the trial court abused its discretion by failing to
award at least nominal permanent 5 alimony. We understand
the trial court’s concerns regarding the husband’s future job
prospects and the fact that there is a possibility that the wife
might be able to return to work. However, we conclude that
the historic incomes of the parties, the length of the marriage,
and the wife’s potential future needs require an award of at
least a nominal amount of permanent alimony.

Id. at 904 (emphasis added).

“[W]hen one party is entitled to [ ] periodic alimony but the other spouse
has no current ability to pay, the trial court should award a nominal sum
of [ ] periodic alimony, which will give the court jurisdiction to reconsider
the award should the parties’ financial circumstances change.” Turcotte
v. Turcotte, 122 So. 3d 954, 957 (Fla. 2d DCA 2013) (quoting Schmidt v.
Schmidt, 997 So. 2d 451, 454 (Fla. 2d DCA 2008)); see also Lightcap v.
Lightcap, 14 So. 3d 259, 259 (Fla. 3d DCA 2009); Misiak v. Misiak, 898 So.
2d 1159, 1160 (Fla. 5th DCA 2005); Blanchard v. Blanchard, 793 So. 2d
989, 990 (Fla. 2d DCA 2001) (“[T]he trial court abused its discretion when
it failed to award the wife $1 in permanent periodic alimony to reserve her
future right to alimony in light of the husband’s work history during this
long-term marriage.”); Stock v. Stock, 693 So. 2d 1080, 1082 (Fla. 2d DCA
1997) (affirming reservation of jurisdiction to determine alimony award in
the future when the evidence showed “a likelihood that there will be a
change in circumstances that would enable the husband to meet his
obligation to contribute to the wife’s support”).

As our supreme court stated in Diffenderfer v. Diffenderfer, 491 So. 2d
265, 267 (Fla. 1986): “The potential income may certainly bear on the
employee spouse’s ability to pay, and as we noted in Canakaris, this factor
can be determined ‘not only from net income, but also net worth, past
earnings, and the value of the parties’ capital assets.’” (quoting Canakaris
v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1990), citing Firestone v.
Firestone, 263 So. 2d 223 (Fla. 1972)).

The bulk of the majority opinion focuses on the propriety of the trial
court’s imputation of income to Former Husband. I agree that “the trial
court ‘may only impute a level of income supported by the evidence of

5 We recognize that the Florida legislature effectively eliminated permanent
alimony in 2023. However, the ability of circuit courts to award nominal alimony
was not affected. § 61.08(1)(a), Fla. Stat. (2023).

10
employment potential and probable earnings based on history,
qualifications, and prevailing wages.’” Inman, 345 So. 3d at 322 (emphasis
added) (quoting Koscher v. Koscher, 201 So. 3d 736, 741 (Fla. 4th DCA
2016)). I do not dispute the income amount which the trial court ascribed
to Former Husband. However, precisely because the trial court imputed
income of only $62,350 to Former Husband—contrary to his earning
history and earning capacity—reversal for the imposition of nominal
alimony is warranted.

The majority cites Greenberg v. Greenberg, 793 So. 2d 52, 55-56 (Fla.
4th DCA 2001), for the proposition that historical income, without a
showing of current income, is meaningless in determining ability to pay. I
agree with that proposition. But historical income is a harbinger of future
earning potential. For that reason, Former Husband’s potential future
income is far greater than $62,350 annually, and the failure to award
nominal alimony is an abuse of discretion. See Nourse, 948 So. 2d at 904
(finding circuit court abused its discretion in failing to award nominal
alimony based on the historic incomes of the parties, the length of the
marriage, and the wife’s potential future needs).

Of course, ability to pay is only one prong of the court’s alimony
determination. The trial court must also determine the requesting party’s
need. I will address Former Wife’s need, which the majority has deemed
moot due to its affirmance on the ability to pay issue.

“The standard of review governing a trial court’s imputation of income
is whether the determination is supported by competent, substantial
evidence.” Rodriguez, 17 So. 3d at 870 (quoting Brown v. Cannady–Brown,
954 So. 2d 1206, 1207 (Fla. 4th DCA 2007)). Here, competent, substantial
evidence does not support the amount of income that the trial court
imputed to Former Wife and finding that she did not have a need for
alimony.

During the majority of the nearly 14-year marriage, Former Wife was
not employed. She maintained the home, primarily cared for the children,
took them to doctors’ appointments and activities, and home-schooled
them during the COVID-19 pandemic. Former Wife testified she worked
part-time at tennis tournaments as a tennis official in 2018 and during
this case. She usually earned $150-165 per day, with the possibility of
sometimes being able to secure the higher-paying tennis head referee or
chief umpire rate of $190-210 per day. Former Wife testified that if the
tournament day was longer than nine hours, she would be paid time-and-
a-half. However, the undisputed evidence was that those higher-paying
positions were granted to more senior tennis officials, and if Former Wife

11
could obtain those tournament positions, it would be infrequently. She
also testified that it was not possible to be hired to work forty hours each
week in South Florida as a tennis official. Former Wife also gained part-
time work as a substitute teacher and was paid $100 per day, except in
the summer months and holidays when school was out. She testified that
if she could obtain substitute teaching work five days each week, she
would earn $500 per week or approximately $20,000 per year. Former
Wife testified that substitute teaching jobs are not available five days a
week. Further, as the trial court ordered on shared custody, if she has the
children every other week, she would earn, at the most, $10,000 per year
from substitute teaching. Thus, the undisputed evidence shows Former
Wife had a need for alimony.

The trial court found Former Wife was voluntarily underemployed and
adopted Former Husband’s forensic accountant’s finding that Former
Wife’s need was $8,427 net per month. The trial court imputed income to
Former Wife of $36,400 gross or $3,033 monthly, and arrived at those
amounts by computing that Former Wife would work seven days a week
every other week when she did not have the children and earn $200 a day
from tennis officiating. No evidence supported imputing income of
$36,400 annually to Former Wife.

The trial court also imputed 72(t) income of $2,164 and interest income
of $767 to Former Wife for a total of $5,964 monthly. Even with the trial
court’s overstated imputed income to Former Wife, the face of the final
judgment shows a deficit of $2,463 each month. Yet the trial court found
no need for alimony. Former Wife brought the deficit of $2,463 to the trial
court’s attention and requested nominal alimony. The trial court said, “I
don’t want to leave the door open. And I don’t think the law tells me now
that I can leave the door open. I think in the past you could leave the door
open for that, because there was also permanent alimony back then, and
that’s why that was done, for permanent alimony, to leave the door open .
. . There’s nothing I can do with that.” 6 The trial court imputed an amount
of income to Former Wife that she had never earned and testified that she
could not earn. That testimony, while challenged by Former Husband on
cross-examination of Former Wife, was not refuted by any other witness.
The trial court erred in determining Former Wife did not establish proof of
the need for alimony.

In Rodriguez, we found “no evidence on the record to support the trial
court’s finding that the former wife’s employer [wa]s able to schedule her

6 The trial court appears to have misunderstood the availability of nominal
alimony in the wake of permanent alimony being abolished.

12
for forty hours per week or more. When asked if she [wa]s able to work
forty hours each week if she wanted to, the former wife replied, ‘[n]o, I can’t
pick up that many hours.’ Thus, even if the trial court disbelieved the
former wife’s testimony about her medical conditions, the former husband
did not present competent, substantial evidence that the former wife’s
current underemployment is the result of her less-than-diligent efforts to
find suitable full-time employment.” Rodriguez, 17 So. 3d at 871.

In Inman, we reversed the trial court where it had calculated the former
husband’s income based on a future surgery. “In determining a party’s
income for alimony purposes, a court may not speculate on what might
happen in the future but must consider the circumstances that existed at
the time of the final hearing.” Inman, 345 So. 3d at 322 (quoting Austin v.
Austin, 12 So. 3d 314, 318 (Fla. 2d DCA 2009)). We elaborated that “the
trial court ‘may only impute a level of income supported by the evidence of
employment potential and probable earnings based on history,
qualifications, and prevailing wages.’” Id. (quoting Koscher, 201 So. 3d at
741) (quoting Schram v. Schram, 932 So. 2d 245, 250 (Fla. 4th DCA 2005)).

Here, the trial court erred in the different ways it imputed income to
Former Husband and Former Wife – in essence, it over-imputed income to
Former Wife. At trial, Former Husband was scheduled to lose his job in
approximately 45 days. The trial court could not speculate that he would
continue to earn $600,000 to $700,000, as he had for almost the last
decade, and consequently did not impute income to him in that amount,
yet it imputed income to Former Wife of $36,400 a year, even though
Former Wife testified she had never earned that amount and could not
earn that amount in the future.

In Iglesias v. Iglesias, 711 So. 2d 1316 (Fla. 2d DCA 1998), the trial
court was reversed for basing imputed income for an unemployed roofer
on employment advertisements and determining the former husband’s
imputed income to be “$20 per hour for forty hours a week and then
reduced that amount by 5% on the probability that there would be less
work in the winter months.” Id. at 1317. The district court found those
conclusions were not supported by the record where “[t]here [wa]s nothing
to indicate that any of these jobs [we]re available to the husband, and if
so, at what rate of pay. There [wa]s nothing to establish the husband’s
ability to be employed forty hours per week on a nearly year-round basis.”
Id. (emphasis added).

Here, because the trial court imputed income of $36,400 to Former Wife
without competent, substantial evidence to support that determination,

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and by that determination concluded Former Wife had no financial need,
the trial court abused its discretion.

The trial court has discretion to determine credibility and fashion
reasonable remedies to achieve equity. The remedy here was not
reasonable. The trial court abused its discretion by denying nominal
alimony of $1 per year, while simultaneously recognizing Former Wife will
have a shortfall of almost $2,500 each month, when Former Husband has
traditionally earned between $600,000 to $700,000 each of the prior eight
years.

Therefore, I would reverse the trial court’s judgment and remand for an
award of nominal alimony 7 and reservation of jurisdiction to revisit
alimony upon changed circumstances of the parties. Former Husband’s
historic income, the length of the marriage, and Former Wife’s financial
need combine to require nominal alimony. Nourse, 948 So. 2d at 904.
Nominal alimony would allow Former Wife to apply for a modification with
proper evidence if and when Former Husband achieves his demonstrated
earning potential.

* * *

Not final until disposition of timely-filed motion for rehearing.

7 In awarding nominal alimony, the trial court should recalculate Former Wife’s

imputed income and determine she has a need for alimony.

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