OYEBANJI v. COLLIER (2022)

This appeal arises from an order denying Appellant's petition to modify child support based on his voluntary change in employment, which resulted in a decrease in pay. The trial court denied Appellant's petition without making particularized findings as to the imputation of income, which was error.

Imputing income involves a two-step analysis: “(1) the determination of whether the parent's underemployment was voluntary, and (2) if so, the calculation of imputed income.” Bator v. Osborne, 983 So. 2d 1198, 1200 (Fla. 2d DCA 2008); § 61.30(2)(b), Fla. Stat. (2021). Here, no dispute exists that Appellant's underemployment was voluntary, thereby leaving only the second step in the analysis to be addressed.

The calculation of imputed income is based on the following factors: the parent's recent work history, occupational qualifications, and prevailing earnings level in the community. Broga v. Broga, 166 So. 3d 183, 185 (Fla. 1st DCA 2015) (quoting § 61.30(2)(b), Fla. Stat. (2012)). The only factor addressed at the hearing below was Appellant's salary at his prior job, which relates to his work history. No findings were made as to that factor or any of the others, which conflicts with precedent that “[p]articularized findings relating to the current job market, the party's most recent work history, occupational qualifications, and the prevailing earnings level in the local community are all required to support an imputation of income.” Marlowe v. Marlowe, 123 So. 3d 1194, 1196 (Fla. 1st DCA 2013). The “[f]ailure to make these findings results in reversal.” Broga, 166 So. 3d at 185.

Accordingly, the trial court's order is reversed and remanded for entry of an order with particularized findings as to the factors set out in section 61.30(2)(b), Florida Statutes (2021).

Gabriel Oyebanji did not appeal the original child support order against him. That order was based on uncontested findings and a guideline calculation premised on the job he held at the time. Cf. § 61.30(1)(a), Fla. Stat. Instead, after Mr. Oyebanji took a new job with the U.S. Army, he asked the trial court to modify that order because he was making considerably less than he was before. He stated in his petition, “I left my old job because the military offered more stability (my income varied a lot month to month at my old job)”; and he asked the court to recalculate his child support obligation “based on my current income.”

At the hearing on his petition, Mr. Oyebanji admitted that he voluntarily left his job to enlist in the Army. The support enforcement hearing officer ¹ recommended that the modification request be denied solely on the basis of his voluntarily changing to a job with lower income. The trial court approved and adopted that recommendation, and the record does not indicate that Mr. Oyebanji moved to vacate that order.² A voluntary change of circumstances cannot support a reduction in a parent's child support obligation. See In re Marriage of Johnson, 352 So. 2d 140, 141 (Fla. 1st DCA 1977); see also § 61.30(2)(b) (providing for income imputation if the obligor-parent is voluntarily “underemployed”). Under the circumstances here, then, there is no reason for the trial court to make the findings demanded by the majority, because we already know what Mr. Oyebanji's “employment potential and probable earnings level” is, “based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community.” § 61.30(2)(b), Fla. Stat. It is the amount that the trial court previously determined to be his income at the job he voluntarily left. I would affirm the denial of Mr. Oyebanji's requested child-support reduction.

FOOTNOTES

1.   See Fla. Fam. L. R. P. 12.491(c), (e).

2.   See id. (f) (allowing a party affected by a child support order to seek vacatur of the order within ten days of its entry).

Per Curiam.

Roberts and Makar, JJ., concur; Tanenbaum, J., dissents with opinion.