                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA
GLENN ROBERT BROGA,
Former Husband,                        NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D16-20

LINDA MARIE BROGA,
Former Wife,

      Appellee.

_____________________________/

Opinion filed October 11, 2017.

An appeal from an order of the Circuit Court for Leon County.
Karen A. Gievers, Judge.

Emilian “Ian” Bucataru, Tallahassee, for Appellant.

No appearance for Appellee.



KELSEY, J.

      We previously reversed several aspects of the final judgment dissolving

these parties’ marriage, remanding for further proceedings. Broga v. Broga, 166

So. 3d 183, 188 (Fla. 1st DCA 2015). The former husband appeals from the new

order entered on remand, arguing the trial court erred in three respects: in imputing

$80,000 of income to him on the assumption that he could secure a job as a
corporate pilot while still maintaining his equal timesharing with the parties’ minor

children in Tallahassee; in requiring him to carry life insurance to secure payment

of child support; and in ordering him to pay all of the former wife’s attorney’s fees

for the first appeal and all post-remand proceedings. We affirm the life insurance

requirement without further comment, but reverse the trial court’s rulings on

imputed income and attorney’s fees and remand for further proceedings.

      Imputed Income.

      The former husband last worked as a pilot in 2013. The record evidence

indicates that he is not qualified for a commercial pilot position because he does

not have a bachelor’s degree. He would have to undergo re-certification training to

qualify to pilot some aircraft, at great expense and far away from home. He has

tried without success to obtain a corporate pilot position. At the time of the post-

remand hearing, he was working for the state as a medical disability examiner

earning $35,000 a year.

      At the evidentiary hearing on remand, the former wife again failed to adduce

competent, substantial evidence to support the trial court’s imputation of $80,000

income to the former husband. The former wife’s expert testified that he was

unaware of any current corporate pilot positions in Tallahassee for which the

former husband would qualify and that would work with the equal timesharing

plan. The expert testified that contract pilot jobs—single, daily flight jobs—are

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always available through word of mouth, but he did not testify as to the income

that could be earned through such ad-hoc flights. The former wife also failed to

adduce evidence sufficient to establish the geographic bounds of the relevant

employment community, and likewise failed to establish that the former husband

could obtain a pilot position making $80,000 within an appropriate geographic

area. Given this failure of proof, the trial court improperly imputed income to the

former husband. See Broga, 166 So. 3d at 186; Leonard v. Leonard, 971 So. 2d

263, 266 (Fla. 1st DCA 2008) (holding court abuses its discretion if findings on

imputed income are not supported by competent, substantial evidence). We

therefore again reverse the imputation of income to the former husband.

      The former husband argues that, because the former wife already has had

two opportunities to prove that income should be imputed to him and in what

amount, and has failed, she should not be given a third bite at the same apple.

While we agree that the evidence already of record is not legally sufficient to

support the imputation order currently before the Court, the parties continue to

have the right to seek relief on the basis of changed circumstances. See § 61.14,

Fla. Stat. (2017). Absent legally sufficient evidence to support imputed income,

however, the trial court must re-calculate former husband’s child support

obligations and arrearages on the basis of his actual earnings. Nicholas v. Nicholas,

870 So. 2d 245, 248 (Fla. 2d DCA 2004) (instructing trial court to base alimony

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and child support on actual income upon failure of proof to support imputed

income).

      Attorney’s Fees.

      Because the trial court’s attorney-fee award was based on imputed income

that we have reversed, the award cannot stand. We note also that the former

husband obtained relief on the merits in the first appeal and again in this appeal,

which must be taken into account. In addition, the trial court failed to make

findings of fact distinguishing between costs of litigation attributable to improper

vexatious litigation, and costs that would have been incurred absent any such

inappropriate litigiousness. An award of fees for inequitable conduct should be

rare, and must be supported by highly specific findings of fact. Moakley v.

Smallwood, 826 So. 2d 221, 227 (Fla. 2002) (“[A] finding of bad faith conduct

must be predicated on a high degree of specificity in the factual findings.”). Any

such award also must be apportioned between attorney’s fees and costs attributable

to inappropriate conduct and those that would have been incurred in normal

litigation. See Myrick v. Myrick, 214 So. 3d 769, 772 (Fla. 2d DCA 2017) (holding

“trial court must also explicitly apportion the amount of the award that is directly

related to the attorney fees and costs that the opposing party incurred as a result of

the additional work caused by the specific bad faith conduct of the other party”).




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      Finally, the trial court also improperly failed to determine whether the

former husband had the ability to pay the fee award. Sutter v. Sutter, 578 So. 2d

788, 788–89 (Fla. 4th DCA 1991) (reducing award of fees to correspond to payor

spouse’s ability to pay, regardless of that spouse’s litigiousness). On remand, the

trial court must make appropriate findings, supported by competent, substantial

evidence, resolving these issues.

      AFFIRMED in part, REVERSED in part, and REMANDED.


WINOKUR and WINSOR, JJ., CONCUR.




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