        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                           JENNIFER HEARD,
                               Appellant,

                                      v.

                            MIGUEL PERALES,
                                Appellee.

                              No. 4D17-3115

                              [May 16, 2018]

   Appeal 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.

    E. Christopher DeSantis, Stuart, for appellant.

    Michael Rebuck of Michael Todd Rebuck, P.A., Palm City, for appellee.

PER CURIAM.

   The 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.

   The 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

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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.

   The 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).

    “The 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.

   Affirmed.

MAY and DAMOORGIAN, JJ., concur.
WARNER, J., concurs specially with opinion.




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WARNER, J., concurring specially.

    While I 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.

  The 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), the steps the trial court must take in
imputing income:

     In imputing income, the trial court engages in a two-step
     process. First, the court must conclude that the termination
     of income was voluntary. Schram, 932 So. 2d at 249. Second,
     the court must determine whether the subsequent
     unemployment “resulted from the spouse’s pursuit of his own
     interests or through less than diligent and bona fide efforts to
     find employment paying income at a level equal to or better
     than that formerly received.” Id. at 249–50 (citation omitted).
     “When imputing income to a party, the trial court must set
     forth factual findings as to the probable and potential
     earnings level, source of imputed and actual income, and
     adjustments to income.” Id. at 249. “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).

Schram, however, was decided prior to the 2010 amendments to the child
support statutes. The legislature enacted section 61.29(1), Florida
Statutes (2011), which declared that, “Each parent has a fundamental
obligation to support his or her minor or legally dependent child.”
(emphasis added). Section 61.30(2)(b), Florida Statutes (2011), modified
the determination of imputation of income. That section now provides:

     (b) Monthly income shall be imputed to an unemployed or
     underemployed     parent    if    such   unemployment     or
     underemployment is found by the court to be voluntary on
     that parent's part, absent a finding of fact by the court of
     physical or mental incapacity or other circumstances over
     which the parent has no control. In the event of such
     voluntary    unemployment      or    underemployment,    the


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      employment potential and probable earnings level of the
      parent shall be determined based upon his or her recent work
      history, occupational qualifications, and prevailing earnings
      level in the community if such information is available. If the
      information concerning a parent's income is unavailable,
      a parent fails to participate in a child support proceeding,
      or a parent fails to supply adequate financial information
      in a child support proceeding, income shall be
      automatically imputed to the parent and there is a
      rebuttable presumption that the parent has income
      equivalent to the median income of year-round full-time
      workers as derived from current population reports or
      replacement reports published by the United States
      Bureau of the Census. However, the court may refuse to
      impute income to a parent if the court finds it necessary for
      that parent to stay home with the child who is the subject of
      a child support calculation or as set forth below:

         1. In order for the court to impute income at an
         amount other than the median income of year-
         round full-time workers as derived from current
         population reports or replacement reports published
         by the United States Bureau of the Census, the court
         must make specific findings of fact consistent with
         the requirements of this paragraph.       The party
         seeking to impute income has the burden to present
         competent, substantial evidence that:

         a. The unemployment         or    underemployment      is
         voluntary; and

         b. Identifies the amount and source of the imputed
         income, through evidence of income from available
         employment for which the party is suitably qualified by
         education, experience, current licensure, or geographic
         location, with due consideration being given to the
         parties' time-sharing schedule and their historical
         exercise of the time-sharing provided in the parenting
         plan or relevant order.

§ 61.30(2)(b), Fla. Stat. (2014) (emphasis added). Thus, the legislature has
strengthened the requirement that each party must contribute to the
support of his or her child as a fundamental responsibility of parenthood.


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Therefore, it is the court’s obligation to impute income as necessary, where
a court finds that a parent is voluntarily unemployed or underemployed.

   Furthermore, the legislature created a rebuttable presumption that a
default amount of income — U.S. Census Bureau median income for full
time workers — must be imputed when the evidence is insufficient for the
court to make an individualized determination of imputed income for the
parent. 1 Judges may take judicial notice of the census. See, e.g., Yoo Kun
Wha v. Kelly, 154 So. 2d 161, 164 (Fla. 1963). In light of these statutory
changes, litigants should be cognizant of the application of the U.S.
Census Bureau median income evidence as the “automatic” default level
of income in cases of imputed income. Because there is a rebuttable
presumption, any party seeking to avoid application of the presumed
amount of the U.S. Census Bureau median income will have the burden
of persuasion.

                             *          *         *

   Not final until disposition of timely filed motion for rehearing.




_________________________________________________________________________
1  The presumption is one “affecting the burden of producing evidence and
requiring the trier of fact to assume the existence of the presumed fact, unless
credible evidence sufficient to sustain a finding of the nonexistence of the
presumed fact is introduced, in which event, the existence or nonexistence of the
presumed fact shall be determined from the evidence without regard to the
presumption[.]” § 90.302(1), Fla. Stat. (2014).


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