Hector and Maxine Joy Sallaberry of Florida had been married for 17 years and had one son.   Hector owned a copy machine repair business.  Maxine had almost no income and Hector supported the family.  Family expenses were about $5,000 a month.

In their divorce, Maxine hired a forensic accountant who reviewed Hector’s business records and testified that he made $6,752 a month.  Hector countered that he could only bill about one hour a day on the average at $95 an hour, and that his income was $3,400 a month.

The trial judge found that Hector was voluntarily underemployed.  He imputed income to Hector for child support and alimony on the following basis.  He said Hector could bill 20 hours a week which would result in about $95,000 a year in revenues.  Then he subtracted $15,000 for expenses leaving about $80,000 in profits which matched what the accountant said Hector earned.

On appeal, the Florida appeals court reversed, saying that (1) the judge’s finding that Hector could bill 20 hours a week was speculation, not evidence; (2) the accountant failed to subtract business expenses from his number; and (3) the judge could not impute income solely on past ability to pay because that might not reflect current earning power.

Sallaberry v. Sallaberry, et al., No. 4D08-2124 (Florida District Court of Appeal, Fourth District, February 17, 2010)

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