Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D20-1534 _____________________________ LIGIA ORTEGA, Appellant, v. FREDRIK WOOD, Appellee. _____________________________ On appeal from the Circuit Court for Alachua County. Robert K. Groeb, Judge. April 9, 2021 WINOKUR, J. Ligia Ortega appeals the trial court’s decisions concerning the marital home and the income of her former husband, Fredrik Wood, in the final judgment of dissolution of marriage. We find no merit in her arguments concerning the partition of the marital home and affirm without further discussion. However, the trial court erred in its determination of Wood’s income. Wood is an optician who owns an optical business with his mother. Ortega sought to impute as income the reimbursements and in kind benefits provided by Wood’s business. The business provided Wood with an apartment where he was living with the couple’s minor children at no cost. Wood also used the company card to pay for a variety of personal expenses, such as massages, dentist appointments, physician appointments, and lab tests for Wood, prescriptions for Wood and his children, a lawn mower that was used for and kept at his private residence, cord blood storage bills for the children, and products from GNC stores. The trial court refused to consider anything provided by the business as imputed income. Because Wood testified that the business offered the same reimbursements to all the employees, the trial court decided the expenditures were legitimate business expenses and ended its analysis. The trial court also concluded the apartment was a corporate asset of the business and likewise ended its analysis. Because the apartment was not marketable to third parties, the trial court would not consider its rental value. The trial court erred in concluding that any corporate asset or expense cannot also be imputed as income. Section 61.046(8), Florida Statutes, defines income as “any form of payment to an individual, regardless of source, including, but not limited to: wages, salary, commissions and bonuses, compensation as an independent contractor, worker’s compensation, disability benefits, annuity and retirement benefits, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal or state government, or any unit of local government.” The child support guidelines specify that gross income includes “[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses.” § 61.30(2)(a)13., Fla. Stat. The relevant inquiry is whether the benefit is regular and expected and whether the benefit reduces living expenses. See Dep’t of Revenue o/b/o Shorter v. Amico, 265 So. 3d 681, 683 (Fla. 5th DCA 2019) (holding that a court should include as income “those regular and expected employment benefits” to the extent the court can determine how they correlate with living expenses (citing Cozier v. Cozier, 819 So. 2d 834, 836 (Fla. 2d DCA 2002)). It was error not to include the former husband’s business income or his reimbursed and in kind payments that reduced his living expenses. See Mills v. Mills, 62 So. 3d 672, 675 (Fla. 2d DCA 2011). However, where reimbursements are for business expenses incurred by a party instead of living expenses, they are not to be 2 imputed as income. See Valentine v. Van Sickle, 42 So. 3d 267, 273 (Fla. 2d DCA 2010) (holding husband’s per diem reimbursement for business expenses could not be included in monthly income for purposes of calculating alimony where funds were used to pay for husband’s business travel and did not reduce his personal living expenses). Medical insurance, term life insurance, the use of a company car, and contributions to an IRA account paid by an employer have been found to be income. See Cozier, 819 So. 2d at 836. However, where gifts of food, clothing, the use of a home, money for bills and the payment of some of the children’s tuition are periodic and not regularly provided, it is error to impute their value as income. Id. Where the occasional use of a home was not imputed as income under Cozier, the value of free housing has been imputed were the benefit is expected. In Posner v. Posner, 39 So. 3d 411, 414 (Fla. 4th DCA 2010), the Fourth District concluded the trial court did not abuse its discretion in imputing the rental value of a home provided by the husband’s parents as in kind income to the husband. There, the husband’s parents had paid such expenses for an extended period of time and the husband’s mother testified that she would pay for his expenses of shelter should he need it. Id. The trial court could infer that the parents would continue to allow their son to live rent free until his income level increased to the point where he could pay for his own housing. Id. The source of the benefit, whether from Wood’s mother or from the business, is immaterial. Nor does it matter whether he owned the business or was merely an employee. The trial court made several statements that illustrate its confusion. According to the trial court, in order to be considered imputed income Ortega would have to demonstrate that no other employees were availing themself of the benefit. To the contrary, the fact that Wood testified that all employees can expect to have these personal expenses reimbursed through the company supports the conclusion these benefits were regular and expected. Accordingly, the trial court’s determination of Wood’s income for alimony and child support purposes is reversed. On remand the trial court is to evaluate in kind contributions to Wood, regardless 3 of source, and impute their value as income where they are expected and reduce Wood’s living expenses. AFFIRMED in part, REVERSED in part, REMANDED with instructions. B.L. THOMAS and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Adam S. Vorhis of Vorhis Legal, PLLC, Asheville, NC, for Appellant. John R. Nettles, Gainesville; Kristin Adamson, Tallahassee, for Appellee. 4