Allison v. Allison

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TARA F. ALLISON, Appellant, v. STUART F. ALLISON, Appellee.

No. 2D21-3677

Florida Court of Appeals, Second District

June 21, 2023

Appeal from the Circuit Court for Hillsborough County; G. Gregory Green, Judge.

Samuel Alexander of Alexander Appellate Law, P.A., DeLand, for Appellant.

Blair H. Chan, III, Tampa, for Appellee.

KHOUZAM, JUDGE

The Former Wife, Tara F. Allison, timely appeals an order denying her exceptions to a general magistrate's report and recommendation in this postdissolution modification proceeding against the Former Husband, Stuart F. Allison. The order adopts the magistrate's recommendation to impute income to the Former Wife for purposes of child support on the basis that she is voluntarily underemployed.

On appeal, the Former Wife frames four issues, all of which challenge the imputation of income in different ways. We agree with the claims framed in Issues II and III in the briefing to the extent that the burden of proof was effectively placed upon the Former Wife below, instead of on the Former Husband as required by law. We accordingly reverse on this basis and reject without comment the remaining claims.

BACKGROUND

After marrying in 2003, the parties divorced in 2014. The final judgment of dissolution adopted the parties' marital settlement agreement and parenting plan, under which the Former Wife had majority timesharing and home schooled the parties' two minor children.

In 2019, the Former Husband petitioned to modify timesharing and child support. He sought equal timesharing and imputation of income to the Former Wife, asserting that she was voluntarily underemployed and that modification of timesharing would allow her to work more at her current position, thereby generating more income. The Former Wife counterpetitioned opposing the requests and seeking her own relief.

Following hearings in 2020, a magistrate recommended modifying timesharing to be more even, ending the Former Wife's home-schooling of the children, and imputing income to the Former Wife. After the Former Wife filed exceptions to the recommendation, the trial court largely adopted the report but granted her exception "on the limited issue of Former Wife's imputed income." Concluding that the magistrate's findings were insufficient to support the imputation of income, the trial court remanded "to readdress this finding of fact and conclusion of law."

In opening statement at the first hearing before the magistrate on remand, the Former Wife's counsel asserted her position that the Former Husband could not meet his burden to impute income to the Former Wife. Her counsel then asked who should proceed with evidence first, stating that the Former Wife had no position on the order of presentation.

The Former Husband's counsel asserted that the Former Wife should proceed first because "this is their exception. They're asking the court to, you know, change the prior ruling, so I think it is their burden of proof." The magistrate responded "Okay" and directed the Former Wife to proceed first with questioning.

Evidence Below

The Former Wife testified that she works as a flight attendant as she had throughout the marriage. Historically, she had worked only about fifteen to twenty-five hours per month, due not only to her majority timesharing and home-schooling the children but also to several atypical restrictions on her work scheduling. But she testified that even under the new more even timesharing schedule and scheduling limitations she could not regularly work more without missing overnights with the children.

Under her employer's procedures, the Former Wife makes bids for scheduling slots a month in advance. The bids are thereafter awarded by her employer in its discretion based on various factors including seniority, supply, and demand. Scheduling is further complicated by a twelve-hour period of ineligibility following each flight assignment. When the Former Wife is not awarded her requested timeslots, she trades shifts with coworkers as necessary to maintain her timesharing schedule.

For nearly all of her two-decade career as a flight attendant including the present, the Former Wife has been based out of the same New Jersey airport. That airport is a busy international hub with many flight assignments, granting her the best flexibility in scheduling to allow her to meet her irregular timesharing obligations. But because she is only paid for hours worked on a scheduled leg, each paid shift is surrounded by two half-day unpaid commutes to and from New Jersey.

Acknowledging that this commute materially limits her working hours and shift availability, the Former Wife discussed the feasibility of seeking a transfer to a base in Florida. At the time, all bases had been closed to transfers for the entire year due to various complications arising from the COVID-19 pandemic. Further, the Former Wife testified that even had transfers been available, there had not been any openings for her particular position at any bases in Florida for over a year. Moreover, despite her relative seniority, the Florida bases had significantly more senior flight attendants whom she-if transferred- would be bidding against for scheduling slots, thereby "risk[ing] losing control of [her] schedule."

Ultimately, the Former Wife had not requested a transfer to a Florida base and did not plan to do so. She testified that, given these obstacles to transfer and the unlikelihood that scheduling would be any better even if transferred, her best opportunity to meet the timesharing schedule was to remain with the larger, busier New Jersey hub.

The Former Husband did not dispute any of this testimony about transferring bases or offer contrary evidence. Instead, he expressly disclaimed knowledge of any actions she had taken regarding a transfer.

The Former Wife also testified that she had entered into a "line share" program that limited her monthly work hours. She explained that a "furlough mitigation partnership" had been "offered during the pandemic as the alternative to furlough." Under that program, rather than being suspended without pay, employees could elect to split their hours with another employee and thereby continue to earn some income.

The Former Wife had joined the line share program because "it was the only choice other than furlough at the time." That program was canceled but later reinstated as an annual program "in anticipation of another furlough" when congressional relief to airlines was scheduled to expire. She had entered into the new program because it maximized her scheduling flexibility, thereby allowing her to meet the timesharing schedule. She testified that absent the program, her schedule would preclude her from exercising timesharing under the existing plan.

The annual line share program lasts for twelve months. The only relevant grounds identified for exiting it are receiving a "hardship release" or a transfer to another base. The record does not reflect what constitutes a hardship or how an employee can obtain such a release.^[1]

Again, the Former Husband did not refute any of this testimony about the line share program. Instead, he expressly agreed that the program allows more flexibility in scheduling, among other benefits.

The Former Wife also testified that she lives with her mother, who has helped with childcare in the past when she and the Former Husband were unavailable. But she testified that the maternal grandmother had developed a blood disorder requiring intermittent hospitalization and care that would interfere with her availability to regularly help take care of the parties' children, particularly given the Former Wife's commute.

Once again, the Former Husband did not dispute this testimony or offer any contrary evidence. He said that the grandmother had helped with exchanges of the children and had watched them in the past, but he did not provide any quantification or context.

Ruling

The magistrate recommended imputing $4,631 in monthly income to the Former Wife, representing a full-time schedule at her current position and pay rate. It found that she had "voluntarily . . . cut her work hours in half" by entering the line share program. It found the Former Wife had "provided no evidence" that she had attempted to find alternative employment. The magistrate found "There was no evidence presented that she desires to work over one 5-hour shift per week."

Although the magistrate acknowledged the Former Wife's testimony that "she cannot be transferred to" a Florida base, it rejected the testimony on the express basis that "there was no evidence presented that she has even attempted such a transfer." It found that she "showed no effort whatsoever to be based other than in New Jersey."

In so finding, the magistrate did not address the Former Wife's unrebutted testimony about the circumstances precluding her from transferring, or the worse scheduling circumstances if she nonetheless somehow accomplished such a...