CRESPO v. WATTS (2020)

The mother raises two issues on appeal. In her first issue, the mother argues that the Administrative Law Judge (ALJ) erred by imputing her 2018 wages to her. We agree that this was error and reverse. We affirm the second issue without comment.

The record shows that in 2018, the mother applied for assistance, and the Department of Revenue (DOR) assisted her with establishing paternity and support for the parties’ child. After DOR sent the parties a proposed final order of paternity and support, the father timely requested a hearing. When the matter came before the ALJ for a hearing, the mother failed to appear even though she was properly noticed.

During the hearing, the ALJ noted the lack of financial information she had for the mother. The mother filled out only two of the six pages concerning her financial information, and one of those pages contained only the mother's signature and the date. At some point in time, the mother provided her 2018 W-2 and a form stating that she was a full-time student. Because the mother was receiving cash assistance, DOR indicated that the mother was not working. However, no evidence was presented concerning why or how the mother became unemployed.

Florida law requires an ALJ to impute income to a parent in accordance with section 61.30, Florida Statutes (2019), unless there is a lack of reliable, current financial information available. § 409.2563(6), Fla. Stat. (2019). When determining whether to impute income, the trier of fact must first determine whether the unemployment was voluntary, followed by a determination of the amount of income to be imputed. Windsor v. Windsor, 262 So. 3d 853, 854 (Fla. 1st DCA 2018). In order to determine whether a parent's unemployment is voluntary, the court applies a two-step process: (1) whether the termination of employment was voluntary, and (2) whether the unemployment resulted from the parent's pursuit of her own interests or through the less-thandiligent and bona fide efforts to find employment at or higher than her former employment. Wood v. Wood, 162 So. 3d 133, 136 (Fla. 1st DCA 2014).

The ALJ noted that she did not know why the mother was unemployed, and there is no evidence in the record concerning this issue. Because there was no evidence concerning the reason behind the mother's unemployment, the ALJ could not determine whether the mother's unemployment was voluntary. Since the ALJ could not determine if the mother's unemployment was voluntary, the ALJ could not impute income to the mother in accordance with section 61.30, Florida Statutes (2019).

In addition to not knowing whether the mother was voluntarily unemployed, the ALJ possessed very little information about the mother's income. The information the ALJ had was not reliable and current. As a result, section 409.2563(6) required the ALJ to presume the mother was capable of earning the federal minimum wage. Since the father did not present any evidence to rebut this presumption, the ALJ was required to impute the federal minimum wage. Accordingly, we reverse and remand for the ALJ to impute the federal minimum wage to the mother and to recalculate the father's child support accordingly.

Affirmed in part, Reversed in part, and Remanded with instructions.

Per Curiam.

Lewis, Roberts, and Makar, JJ., concur.