Next, to the extent that the trial court's finding that Mother's failure to demonstrate a need for appellate attorney's fees was related to the court imputing some level of income to her due to her voluntary unemployment, this was error because the court made no findings as to either the amount or the source of this imputed income. SeeZubkin v. Zubkin , 823 So. 2d 870, 871 (Fla. 5th DCA 2002) (recognizing that a trial court may only impute income to a party who is voluntarily unemployed but that the imputation must be supported by specific findings of fact indicating the amount and the source of the imputed income). Lastly, we recognize that, beyond the primary determinations to be made by a trial court when awarding or assessing attorney's fees under section 742.045 of one party's need and the other party's ability to pay, a court may consider secondary factors such as the length and scope of the litigation and the parties' behavior during the litigation.
"Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today." Andrews v. Andrews, 867 So. 2d 476, 479 (Fla. 5th DCA 2004) (quoting Woodard v. Woodard, 634 So. 2d 782, 782–83 (Fla. 5th DCA 1994) ); see also Zubkin v. Zubkin, 823 So. 2d 870, 871 (Fla. 5th DCA 2002) (holding trial court erred in imputing income to former husband based on working five days per week because former husband previously worked five days per week; evidence was that former husband worked four days per week and no evidence was presented that former husband had opportunity to work fifth day or obtain other employment for only one day per week). Here, Former Husband failed to present any evidence of available jobs that Former Wife would qualify for or the salaries for those jobs.
The parties appear to agree that the circumstances justifying the modification existed at the time the petition was filed. Therefore, the trial court was required to either make the increased support award retroactive to the date of the petition, or explain its reasons for not doing so. Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002). It did neither. Accordingly, we reverse that portion of the trial court's order setting the increased support payments to begin on July 1, 2007.
Specific findings of fact must support the imputation decision. Zubkin v. Zubkin, 823 So.2d 870, 871 (Fla. 5th DCA 2002). Because of a downturn in the insurance industry, the Husband's income decreased gradually during the fourteen-year marriage from $80,595 in 1991 to $45,415 in 1995.
This critical failure of proof requires reversal of the modification denial which was predicated on the former husband's deliberate underemployment. See also Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002) (reversing modification decree which imputed excessive income). This court's decision in Florida Dept. of Revenue ex. rel. Kaiser v. Kaiser, 890 So.2d 364 (Fla. 4th DCA 2004), is distinguishable.
This critical failure of proof requires reversal of the modification denial which was predicated on the former husband's deliberate underemployment. See also Zubkin v. Zubkin, 823 So. 2d 870 (Fla. 5th DCA 2002) (reversing modification decree which imputed excessive income). As the court stated in Hinton v. Smith, 725 So. 2d 1154, 1157 (Fla. 2d DCA 1998), "the attainment of a degree alone does not guarantee employment or a particular salary and, thus, does not constitute sufficient evidence to support imputation."
Zanone v. Clause, 848 So.2d 1268, 1271 (Fla. 5th DCA 2003). See also Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002); Batson v. Batson, 821 So.2d 1141 (Fla. 5th DCA 2002); Vitek v. Vitek, 661 So.2d 965 (Fla. 5th 1995); Strickland v. Strickland, 639 So.2d 149 (Fla. 5th DCA 1994). In determining the amount of income to impute, the court must consider the spouse's recent work history, his or her occupational qualifications, and the prevailing earnings in the community for that class of available jobs.
Then, however, without making any findings as to any amount it was imputing to Zanone and without finding that Zanone was underemployed, the court imposed the fee order, presumably imputing some additional income to Zanone that was not evidenced at the hearing. In Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002), this court described what was necessary to properly impute income: A trial court may only impute income to a party who is voluntarily unemployed or under-employed.
On numerous occasions, this court has struck findings of imputed income where the trial judge fails to identify with particularity the source of the imputed income, and no evidence of this anticipated source is apparent in the record. See, e.g., Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002) (imputation of income to father for purposes of child support error where it was supported only by trial judge's comments that he was not convinced father could not earn more than what he was earning); Warner v. Warner, 692 So.2d 266 (Fla. 5th DCA 1997) (imputation of income to husband was error where there was nothing in the record which suggested he was voluntarily underemployed or that he had been anything less than diligent in making efforts to improve his financial picture); Davis v. Davis, 691 So.2d 626 (Fla. 5th DCA 1997) (imputation of income was error where there was no evidence of the anticipated source of the imputed income). Although these rulings have been in favor of the husband, they should apply equally to the wife: "What's sauce for the goose is sauce for the gander."