FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

No. 1D18-764

_____________________________

DANIEL WINDSOR,

Appellant,

v.

TIFFANY WINDSOR,

Appellee.

_____________________________

On appeal from the Circuit Court for Bay County.

Shonna Young Gay, Judge.

December 28, 2018

WINSOR, J.

When Daniel and Tiffany Windsor divorced in 2009, they 

agreed that Daniel would pay $550 monthly in child support. 

Financial circumstances changed over time, and Tiffany Windsor 

(the ex-wife) later petitioned for increased support. Daniel

Windsor (the ex-husband) counter-petitioned for a decreased 

amount. The trial court agreed with the parties that there had 

been a substantial change in circumstances—a prerequisite to any 

change in support obligations, see § 61.14, Fla. Stat.—and it also 

concluded that the ex-husband was voluntarily underemployed. 

The court then recalculated the ex-husband’s child support 

obligation based on an imputed income of $100,000, rather than 

the ex-husband’s lower, actual income. The sole question here is 

whether that $100,000 imputation was permitted.
2

“When the obligor spouse voluntarily becomes unemployed or 

underemployed, the income that he or she is capable of earning 

may be imputed for purposes of determining an appropriate award 

of support.” Smith v. Smith, 737 So. 2d 641, 644 (Fla. 1st DCA 

1999); see also § 61.30(2)(b), Fla. Stat. Therefore, the first step is 

to determine whether there is voluntary unemployment or 

underemployment. If there is, then the second step is to determine 

the amount of income to impute. 

As to the first step, we conclude that competent, substantial 

evidence supported the trial court’s finding of underemployment. 

The ex-husband was in the restaurant business and once held 

high-paying executive-chef positions. He then owned his own 

restaurant, where he perhaps earned somewhat less, but still more 

than he makes now. More recently, he sold that restaurant and 

opened a small, unprofitable coffee shop. His current wife owns the 

coffee shop with him, and she testified that they sold the 

restaurant in favor of a coffee shop because they were ready to 

“slow down some.” That evidence—that the ex-husband accepted a 

less profitable arrangement to enjoy slowing down—is enough to 

support the court’s finding of voluntary underemployment. Cf. 

Gillette v. Gillette, 226 So. 3d 958, 961 (Fla. 4th DCA 2017) (“[A] 

person can become ‘underemployed’ by leaving a more lucrative 

position in order to pursue an interest in a family business.”); 

Guard v. Guard, 993 So. 2d 1086, 1090 (Fla. 5th DCA 2008) 

(“[D]espite the family business’s lack of success, the husband failed 

to seek profitable employment. . . . [I]n choosing to pursue his 

interest in the family business, he has become underemployed.”). 

As to the second step, we conclude that there was not 

competent, substantial evidence supporting the trial court’s 

decision to impute $100,000. The trial court correctly noted that 

the ex-husband previously earned more than $100,000—and that 

he once expected to make even more through a Kentucky business 

arrangement that did not materialize. But to impute $100,000 of 

income, the court needed evidence that the ex-husband had the 

present ability to earn $100,000 in his community. § 61.30(2)(b), 

Fla. Stat.; cf. also Rabbath v. Farid, 4 So. 3d 778, 782 (Fla. 1st DCA 

2009) (reversing imputation of income based on past, foreign job 

because “[n]o evidence was presented regarding the current, 

prevailing earnings level and the potential source(s) or amount of 
3

income in the pertinent community.” (emphasis added)). Yet there 

was no evidence below about the relevant job market in the exhusband’s area, Panama City. See Rabbath, 4 So. 3d at 782 

(“Before the trial court could impute income to Appellant, it had to 

make particularized findings relating to the current job market, 

Appellant’s more recent work history, his occupational 

qualifications, and the prevailing earnings level in the local 

community where he and his family live.”). There was testimony 

from the ex-husband’s former employer that if his outfit was hiring 

someone with the ex-husband’s credentials, it would pay at least 

$100,000. But there was no evidence that such a job was available. 

See § 61.30(2)(b)1.b. (noting petitioner must provide “evidence of 

income from available employment for which the party is suitably 

qualified”). We therefore reverse and remand for further 

proceedings, during which the trial court should determine an 

appropriate amount of imputed income. 

REVERSED and REMANDED.

ROBERTS and RAY, JJ., concur.

_____________________________

Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

_____________________________

Jonathan W. Dingus, Panama City, for Appellant.

Jeffrey P. Whitton, Panama City, for Appellee.