       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                         CRAIG D. CARTER, SR.,
                               Appellant,

                                     v.

                          LENORA J. CARTER,
                              Appellee.

                               No. 4D19-351

                              [April 15, 2020]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312016DR001358.

    A. Julia Graves of the Law Office of A. Julia Graves, P.A., Vero Beach,
for appellant.

   J. Garry Rooney of Rooney & Rooney, P.A., Vero Beach, for appellee.

WARNER, J.

    In this appeal from a final judgment of dissolution, appellant raises
multiple issues with respect to the trial court’s determination as to the
award of alimony, child support, and equitable distribution. With respect
to the alimony award, the trial court based appellant’s ability to pay on
imputation of income of $55,000 per year. We conclude that the court
erred in part in imputing income based upon part-time lawn work, the
amount of which was speculative. Nevertheless, competent substantial
evidence supported the other amounts of imputed income, and even
without the speculative income, it totaled more than $55,000. Therefore,
the court did not abuse its discretion in attributing that amount of income
to the husband. With respect to child support, the trial court made a slight
error in the calculation, using the incorrect amount of childcare expenses.
More importantly, the court erred in failing to give appellant credit against
retroactive child support for actual payments he made for the benefit of
the children during the retroactive period. Finally, the Second Amended
Final Judgment must be corrected because of some inconsistencies and
the failure to attach the equitable distribution schedule which includes an
equalizing payment. Because appellee concedes that the court did not
award an equalizing payment, we remand for correction of the final
judgment with respect to the equitable distribution. We affirm as to all
other issues.

   After a fifteen-year marriage, the parties separated and filed for
dissolution two years later. At the time of the final judgment, the parties
had two minor children. Appellee/former wife sought alimony, child
support, and equitable distribution of the parties’ assets.
Appellant/former husband contended that he did not have the means to
pay alimony.

    A substantial issue at trial was the amount of income which could be
attributed to appellant. We summarize the important aspects of that
issue. During most of the marriage appellant had worked for a hospital
and earned around $30,000 per year. In addition, he was a massage
therapist and earned an additional $10,000 per year from this work at a
spa. He also made some additional money doing lawn maintenance. The
former wife testified that he made $55,000 per year until separation.
When the parties separated, appellant quit his hospital job and started his
own massage business. At the time of trial, his business was growing, and
he expected to make $20,000 in the business, although the figure was
based upon all clients using discount coupons. He used a barter service
through which he made about $6,000 per year. He also continued to see
clients at the former spa. And he continued to do some lawn maintenance.

   In calculating appellant’s income in the final judgment, the court
concluded that appellant should be earning $55,000. First, it found that
the husband voluntarily left his $30,000 per year hospital job, thus
permitting the court to impute income. The court calculated the income
that appellant would make as follows: $30,000 per year from the new
business, which was the same as the amount that he historically made at
the hospital; $6,000 in barter income; $12,000 in supplemental income
that he could make at the other spa; $10,200 in in-kind payments which
had been made by appellant’s brother for expenses at appellant’s home;
and $6,000 in yard work which appellant did on the side. After
determining that appellee’s income at her present employment was
$28,884 per year and that she needed an additional $1,430 per month to
meet her expenses, the court awarded $1,000 per month in permanent
alimony in addition to child support.

   Appellant challenges the imputation of income to him. We conclude
that competent substantial evidence supported the imputation of income
as found by the trial court, except for the $6,000 attributed for lawn
maintenance, as that amount was entirely speculative.

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   “For alimony purposes, trial courts may impute income to a voluntarily
unemployed or underemployed spouse in determining the parties’ earning
capacities, sources of income, and financial circumstances. See §
61.08(2)(e), (i), (j), Fla. Stat. (2016).” See Huertas Del Pino v. Huertas Del
Pino, 229 So. 3d 838, 839 (Fla. 4th DCA 2017). Because appellant
voluntarily terminated his employment with the hospital, the court could
impute income to him. In this case, however, the court was not so much
imputing income but trying to ascertain the amount of income appellant
received from various sources.

    To the extent that the court imputed income to appellant from his new
business, the trial court discredited some of appellant’s testimony with
respect to how much he made from tips as well as full-paying clients.
“Witness credibility, like all disputed issues of fact, is a determination left
to the finder of fact.” Rodriguez v. Reyes, 112 So. 3d 671, 674 (Fla. 3d
DCA 2013). The trial court provided a logical explanation of how it arrived
at the amount of income, and competent substantial evidence supports its
findings with respect to the business income, the additional spa income,
the barter income, and the in-kind payments from the brother.

   The court erred, however, in attributing $6,000 to lawn maintenance.
This level of income was not supported by any testimony. At most, the
testimony of the various witnesses would suggest that appellant may have
provided lawn service to relatives and friends for around $20-25 per visit,
but not every week. As no evidence supported the amount credited by the
court, it should not have been included in appellant’s income.

   However, even if the entire $6,000 lawn maintenance income is
removed, the total of the other income attributed to appellant exceeds the
$55,000 attributed to him for purposes of alimony and child support.
Therefore, the error in attributing this additional income was harmless.

   Appellant also contends that the trial court erred in calculating the
child support amount which he owed. There appears to be a discrepancy
between the testimony regarding childcare and the amount included in the
child support guidelines worksheet. Appellee testified that she paid $180
twice a year for childcare, which amounts to $30 per month. However, the
court included $60 per month in childcare costs. The court should correct
this amount on remand.

   After calculating child support, the court also retroactively imposed the
obligation on appellant to the time that the parties separated, creating
substantial arrearages. Appellant contends that the court should not have

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awarded retroactive child support before the date of the filing of dissolution
of marriage. Even if it could, the court failed to give appellant any credit
for actual amounts he paid in support of his children.

   The court had the authority to make the arrearages retroactive to the
date of separation. Section 61.14(11), Florida Statutes (2016) provides:

      (11)(a) A court may, upon good cause shown, and without a
      showing of a substantial change of circumstances, modify,
      vacate, or set aside a temporary support order before or
      upon entering a final order in a proceeding.

      (b) The modification of the temporary support order may
      be retroactive to the date of the initial entry of the temporary
      support order; to the date of filing of the initial petition for
      dissolution of marriage, initial petition for support,     initial
      petition determining paternity, or supplemental petition for
      modification; or to a date prescribed in paragraph (1)(a) or s.
      61.30(11)(c) or (17), as applicable.

(emphasis added.) Section 61.30(17), Florida Statutes (2016) provides:

      (17) In an initial determination of child support, whether in a
      paternity action, dissolution of marriage action, or petition for
      support during the marriage, the court has discretion to
      award child support retroactive to the date when the
      parents did not reside together in the same household
      with the child, not to exceed a period of 24 months preceding
      the filing of the petition, regardless of whether that date
      precedes the filing of the petition.       In determining the
      retroactive award in such cases, the court shall consider the
      following:

      (a) The court shall apply the guidelines schedule in effect at
      the time of the hearing subject to the obligor’s demonstration
      of his or her actual income, as defined by subsection (2),
      during the retroactive period. Failure of the obligor to so
      demonstrate shall result in the court using the obligor’s
      income at the time of the hearing in computing child support
      for the retroactive period.

      (b) All actual payments made by a parent to the other parent
      or the child or third parties for the benefit of the child
      throughout the proposed retroactive period.

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      (c) The court should consider an installment payment plan for
      the payment of retroactive child support.

(emphasis added.) Thus, reading both statutes together, the court had
authority to make the retroactive award of support to the date of the
parties’ separation.

    The court did err, however, in failing to give credit to appellant for
amounts he paid to appellee for the children’s benefits during the entire
retroactive period. It concluded that because appellant was paying routine
marital expenses, he should get no credit. Section 61.30(17)(b), Florida
Statutes requires the court to consider all actual payments made to the
other parent for the benefit of the child. Appellant was providing $900 per
month to cover the expenses of both the wife and children during this
period, including mortgage payments. The court should have allowed
credit for these amounts. See Julia v. Julia, 263 So. 3d 795, 798 (Fla. 4th
DCA 2019) (in determining retroactive child support trial court erred in
failing to credit husband for mortgage payments he made during
retroactive period).

    Finally, appellant challenges the equitable distribution made by the
trial court, contending that the judgment is inconsistent. He notes that
the first Judgment of Dissolution of Marriage contained an equalization
schedule for equitable distribution which was attached as Exhibit A to the
judgment, which includes an equalization payment. But the Second
Amended Final Judgment of Dissolution states that “no equalization
payment is due to either party as part of the equitable distribution,” and
no Exhibit A is attached. Paragraph 18 of the judgment states that the
husband continued to pay some of the debts after the parties separated.
But the last sentence of paragraph 18 of the Second Amended Final
Judgment states, “[t]he charges made by the Husband shall be addressed
in the equitable distribution and part of the equalization payment owed to
the wife.” The fact that the judgment referred to an “equalization payment
owed to the wife,” when it also states that no equalization payment is owed,
is a conflict within the final judgment. Further, no Exhibit A is attached
to the Second Amended Final Judgment. In contrast, appellee contends
that the Exhibit A attached to the original final judgment is what should
be attached to the Second Amended Final Judgment. She contends that
there is no ambiguity with the Second Amended Final Judgment, and no
equalization is due, even though one is included in Exhibit A attached to
the original final judgment. We conclude that the Second Amended Final
Judgment is ambiguous and needs correction. Based upon appellee’s
concession, we reverse and remand for correction of the Second Amended

                                     5
Final Judgment to attach Exhibit A, but to delete any equalization
payment on it in favor of appellee.

   In conclusion, we reverse the Second Amended Final Judgment to
reconsider credits which should have been allowed in the calculation of
retroactive child support for payments made by appellant during the
retroactive period. The child support calculation should be corrected to
reduce the childcare expenses in accordance with this opinion. Finally,
the judgment should be amended to include Exhibit A but without any
equalizing payment to appellee. In all other respects, we affirm the final
judgment.

CIKLIN and FORST, JJ., concur.

                           *        *        *

   Not final until disposition of timely filed motion for rehearing.




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