Got my answers......
lost on the main part, the ability to see my kid in any reasonable sense....the rest is only money that the government (and lawyers) going to take away one way or another.....time to go hire another one.....
good news is my kid is coming back for the Jewish holidays, so I'll have a couple of days with her at least....
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT JULY TERM 2003
J R. YOUNG,
Appellant,
v.
XX,
Appellee.
CASE NO. 4D
Opinion filed September 10, 2003
Appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Edward A.
Garrison, Judge; L.T. Case No. CD 94-4702 FC.
J R. Young, Wellington, pro se.
XX of the Law Offices of
XX, P.A., Boca Raton, for
appellee.
STEVENSON, J.
The parties to this appeal, J R Young
and , were divorced in 1994.
Commencing April 2000, former wife sought to both
enforce and modify the terms of the final judgment
of dissolution. Ultimately, the trial court entered
an order that (1) gave the former wife authority to
make decisions regarding their daughter’s
acting/modeling career, (2) directed the former
husband to comply with the provision in the marital
settlement agreement, wherein he agreed to obtain
a “get” (a divorce under Jewish law), (3) directed
the former husband to reimburse the former wife
for camp, day care expenses and certain medical
bills and (4) increased the former husband’s child
support obligation. Thereafter, the court entered
a second order, requiring the former husband to
pay some $95,000 in attorney’s fees and costs
incurred by the former wife. The former husband
has appealed and challenges virtually every aspect
of both orders. We write to address only two
issues – the upward modification of child support
and the attorney’s fees and costs award. As to all
other issues, we find no error and affirm without
further discussion.
Child Support
The former husband challenges the upward
modification of his child support obligation on a
number of grounds. We find merit in his claim
that the trial judge erred in failing to impute income
to the former wife and reverse the upward
modification of the former husband’s child support
obligation on this basis.
With respect to the former wife’s income and
ability to earn, the evidence before the lower court
was that the former wife holds a bachelor’s
degree in sociology and was employed as a social
worker briefly while residing in New York in
1984. According to the former wife, without a
master’s degree she is not qualified to do social
work in Florida. Since residing in Florida, the
former wife has held a number of jobs, most of
which were part-time: she was a partner in a
modeling agency; she obtained a real estate
license; she worked at her daughter’s school; and
she worked as a marketing representative with the
Boca Raton Museum of Cartoon Art. As for her
current income, the former wife testified that she
was employed part-time. According to the former
wife, part-time employment is necessitated by the
demands of their daughter’s career. The former
wife’s financial affidavit reflects that she is
employed by American Greeting Cards, earns
$7.05 per hour, and has gross monthly earnings of
$240.00. Additionally, since the former wife and
the child were residing with the former wife’s
parents, she also included $1200 in income to
represent the rent and utilities paid on their behalf.
On this evidence, the trial court refused to impute
income to the former wife.
Section 61.30(2)(b), Florida Statutes, governs
the imputation of income to an unemployed or
underemployed spouse and requires imputation of
income to a voluntarily unemployed or
underemployed parent unless the parent suffers
from a “physical or mental incapacity or other
circumstance over which the parent has no
control” or the court finds that it is necessary for
the primary residential parent to stay home with
the child. See also Shrove v. Shrove, 724 So. 2d
679, 682 (Fla. 4th DCA 1999); Stebbins v.
Stebbins, 754 So. 2d 903, 905 (Fla. 1st DCA
2000). As to the first of the exceptions to the
imputation of income, there was no evidence that
the former wife is incapacitated in any way. As
to the latter, the trial court never made any finding
that it was necessary for the former wife to stay
home with the child. Moreover, even if the court
had determined that the former wife could not
work full-time due to the child’s modeling/acting
career, certainly she could work more than thirtyfour
hours per month or an average of 8.5 hours
per week ($240.00 divided by $7.05 per hour)
since the record established that the child was
attending school. Accordingly, we reverse the
child support award and remand so that the trial
court may recalculate the amount of support owed
by each parent after imputing additional income to
the former wife.1
Attorney’s Fees and Costs
Following entry of its order modifying the terms
of the final judgment of dissolution, the court
rendered a second order, requiring the former
husband to pay $95,000 in attorney’s fees and
costs incurred by the former wife. The fee award
finds only that the fees charged “were both
reasonable and necessary” and that the hourly
rates were reasonable.
The former husband has sought review of the
fee award, arguing, among other things, that
reversal is required due to the trial court’s failure
to make specific findings as to the number of
hours expended and the amount of a reasonable
hourly rate. The judge is indeed required to make
these specific findings. See, e.g., Saporito v.
Saporito, 831 So. 2d 697 (Fla. 5th DCA 2002).
Moreover, a review of the transcript of the fee
hearing reflects that, here, there was insufficient
evidence on which the court could have predicated
such a finding. While there was evidence as to
the number of hours logged by the former wife’s
attorneys and the rate each attorney charged,
there was no evidence as to how these hours
were spent.
Generally, when an attorney’s fee or cost
order is appealed and the record on appeal is
devoid of competent substantial evidence to
support the order, the appellate court will
reverse the award without remand. However,
when the record contains some competent
substantial evidence supporting the fee or cost
order, yet fails to include some essential
evidentiary support such as testimony from the
attorney performing the services, or testimony
from additional expert witnesses, the appellate
court will reverse and remand the order for
additional findings or an additional hearing, if
necessary.
Rodriguez v. Campbell, 720 So. 2d 266, 268 (Fla.
4th DCA 1998)(citations omitted). As the instant
case falls into this latter category, we reverse the
fee award and remand for further proceedings.2
1Our conclusion in this regard will also require
recalculation of the amount of the daycare and camp
expenses that the former husband is required to
reimburse the former wife as the parties’ respective
obligations are based upon their income.
2Effective October 1, 1993, the legislature amended
section 61.16(1), Florida Statutes, to provide that “[a]n
application for attorney’s fees, suit money, or costs,
whether temporary or otherwise, shall not require
corroborating expert testimony in order to support an
award under this chapter.” Ch. 93-188, §§ 6, 9, at 1696-
97, Laws of Fla. Nevertheless, the addition of this
language “did not alter the burden of the party seeking
-3-
AFFIRMED in part, REVERSED in part and
REMANDED.
WARNER and HAZOURI, JJ., concur.
NOT FINAL UNTIL DISPOSITION OF ANY TIMELY
FILED MOTION FOR REHEARING.
fees to prove with evidence [the] reasonableness and
necessity of the fees sought.” Safford v. Safford, 656
So. 2d 485, 486 (Fla. 2d DCA 1994).
