Law Offices of Robin Bresky Wins Affirmance of Trial Court Ruling Denying Mother’s Request for Attorney’s Fees, Awarding Father Attorney’s Fees, Imputing Income to Mother, and Awarding Rotating Timesharing

Bresky_Divorce

Gonzalez v. Walker, Case No. 4D14-4013 (Fla. 4th DCA, May 18, 2016)*

The Law Offices of Robin Bresky recently obtained an affirmance on appeal in favor of our client on a number of important disputed issues between the parties. We represented the father in the appeal. The trial court had held a trial and entered a Final Judgment of Paternity prior to our involvement in the case. The trial court awarded rotating timesharing of the parties’ child as requested by the Father, and awarded him ultimate decision-making authority over certain aspects of the child’s welfare. The court also found that the mother, who was employed on a part-time basis by her boyfriend, was voluntarily underemployed because she was not working full-time. The trial court imputed income to the mother based upon a full-time work week at the hourly rate of her previous employment. The trial court denied the mother’s request for attorney’s fees, and awarded the father a small amount of attorney’s fees that were necessitated by the mother’s conduct in the litigation.

The mother was unhappy with the Final Judgment and raised a staggering fifteen substantive issues and sub-issues on appeal. The majority of the issues related to attorney’s fees, timesharing, ultimate decision-making authority, and the imputation of income. The mother argued that the trial court had erroneously denied her request for fees without allowing her attorney to present evidence. She also claimed that the record did not support the award of fees to the father. She argued that it was an abuse of discretion to impute income to her because the trial court had not made sufficiently specific findings and there was insufficient evidence to support either the imputed amount or that the mother had previously worked full-time. She also asserted that the trial court erred in awarding the father ultimate decision-making authority where the father had not requested it in his pleadings.

As to attorney’s fees, we pointed out that the trial court had already heard the mother’s purported evidence of financial need and the father’s ability to pay. We argued that a further hearing on the matter would have been unnecessary. We also maintained that the trial court’s award of a small amount of attorney’s fees to the father was within the trial court’s discretion; and the father had the need for the fees and the mother had the ability to pay the small sum. We argued that the imputation of income to the mother was appropriate because the trial court made the necessary findings that she was underemployed and there was evidence to support the rate of income the trial court imputed, and it was the mother’s voluntary decision to work part-time and attend school. We also argued that the issue of ultimate decision-making authority over certain decisions pertaining to the child’s welfare had been tried by implied consent because the father had included it in his proposed parenting plan.

The Fourth DCA affirmed the Final Judgment in favor of our client on every issue except the issue of ultimate decision-making authority. The court also conditionally awarded our client his appellate attorney’s fees. This favorable result for our client upheld numerous favorable aspects of the trial court’s decision.

* The decision is not final until disposition of any timely-filed motion for rehearing.