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FLORIDA CHILD SUPPORT GUIDELINES UPDATE AND CURRENT TRENDS 2004
(provided by Michael L. Hastings, Esq.)
Michael L. Hastings,St. Petersburg, Florida
The Honorable John C. Lenderman, St. Petersburg, Florida
INTRODUCTION Child support determinations are within the sound discretion of the trial court, subject to the child support guidelines in Section61.30, (2003). The child support guidelines are the starting point for determining the appropriate amount of child support. Guida v. Guida, 870 So.2d 222 (Fla. 2d DCA 2004); and Pedroza v. Pedroza, 779 So.2d 616 (Fla. 5th DCA 2001).
This article will address pertinent subsections of Section 61.30 in sequential order. Each subsection will be analyzed with appropriate case law related thereto.
Before addressing Section61.30, it is important to note that in 2004 the Florida Statutes have been amended to permit courts to modify, vacate or set aside a temporary child support order without a showing of a substantial change of circumstances. Section61.14 (9). This new statute further provides that a modification of a temporary order may be retroactive to the date of the prior order, or the filing date or the date of a supplemental petition.
Section 61.30(1)(a) BASIC GUIDELINE PRINCIPLES
Section 61.30(1)(a) establishes a number of basic principles, which are as follows:
1. The guidelines presumptively establish the appropriate child support amounts in initial and modification child support proceedings.
2. The trial judge has the discretion to vary the presumptive amount, more or less than 5%, after analyzing all relevant factors.
3. The trial judge may vary the presumptive amount more than 5% ONLY upon written finding, explaining the basis for the deviation.
4. Irrespective of the variance limitations set forth herein above, the court may, on a temporary or permanent basis, vary the guideline amount, whenever any of the children spend a „substantial amount of time" with each parent as permitted under Section 61.30(11)(b).
The basic provisions in Section 61.30(1)(a) must be followed in all cases. Appellate courts adhere strictly to the guidelines. Kranz v. Kranz, 737 So.2d 1198 (Fla. 5th DCA 1999) (the trial court was reversed because there were no reasons given for departing from the guideline amount).
We are reminded that Florida Family Law Rules of Procedure 12.285(j) require the parties to file Child Support Guidelines Worksheets. The parties may not waive this provision. Durham v Department of Revenue ex rel Durham, 850 So.2d 653 (Fla. 2nd DCA 2003). Further, F.S.Section 61.30(14) requires each party to file a financial affidavit explaining income and allowable deductions.
If the trial courts do not follow the guidelines, the district courts do not hesitate to reverse and remand for findings. Douglas v. Douglas, 795 So.2d 99 (Fla. 5th DCA 2001) (there were no calculations as to how the trial court arrived at the child support amount).
The better practice for trial courts is to recite findings of fact on the face of the judgment. Herring v. Herring, 869 So.2d 630 (Fla. 5th DCA 2004).
Appellate courts will reverse decisions of the trial courts when there are no findings of fact regarding the net income of the parties. Deoca v. Deoca, 837 So.2d 1137 (Fla. 5th DCA 2003); Harbin v. Harbin, 762 So.2d 561 (Fla. 5th DCA 2000).
Section 61.30(1)(b) GUIDELINES MAY PROVIDE BASIS FOR CHILD SUPPORT MODIFICATION
The guidelines may be used to provide the basis for proving a substantial change in circumstances upon which modification of an existing order may be granted if the existing order deviates from the amount under the guideline by 15% or $50. Section 61.30(l)(b), (2003). In fact, the guideline amount is presumptively the amount the trial court shall order in a modification proceeding. So long as the statutory threshold is met an increase in the paying parent‚s income, standing alone, is sufficient to establish a substantial change in circumstances without proof of increased need. Garone v Garone, 878 So.2d 430 (Fla. 3rd DCA 2004); and Seiberlich v Wolf, 859 So.2d 570 (Fla. 5th DCA 2003).
Equally important, findings of fact are required in modification cases. The lack of findings results in a reversal. Department of Revenue v. Skirko, 855 So.2d 1205 (Fla. 5th DCA 2003); Matthews v. Matthews, 677 So.2d 323 (Fla. 1st DCA 1996); Whight v. Whight, 635 So.2d 135 (Fla. 1st DCA 1994) (The new amount must be at least 15% or $50.00 different). In Joseph v Joseph, 871 So.2d 985 (Fla. 4th DCA 2004), the Fourth District reversed a downward modification for lack of findings.
A financial affidavit must be filed with a Supplemental Petition to Modify Child Support. Section61.30(14). The failure to file the financial affidavit justifies dismissal of the Petition, but with leave to amend. Henderson v Henderson, 29 Fla. Law Weekly D 2111 (Fla. 1st DCA September 27, 2004).
The Third District in Turner v. Turner, 695 So.2d 422 (Fla. 3d DCA 1997), distinguished Whight, and held: We are aware that the wording of the statute, on its face, arguably supports the action taken by the trial court in this case. However, we conclude that the legislature could not have intended to allow a father to use the guidelines statute to avoid his own, freely entered into agreement within one year of its making even though his income has increased and the child‚s needs have not decreased, particularly where, as here, there is no finding of fraud, duress, or other intentional misleading circumstances surrounding the entry of the settlement agreement.
The First District agreed with the decision in Turner. Ervin v. Chason, 750 So.2d 148 (Fla. 1st DCA 2000).
An existing arrearage in child support does not constitute a substantial change for purposes of a downward child support modification so long as the movant can show that [s]he was unable to comply with the child support order. Any other result would be inequitable. Blender v. Blender, 760 So.2d 950 (Fla. 4th DCA 1999).
The standard of appellate review in child support modification cases is "abuse of discretion." The trial court abused its discretion in denying petition for modification of child support where evidence showed substantial change in circumstances. Bunassar v. Diaz, 804 So.2d 487 (Fla. 3d DCA 2001); Seward v Florida Department of Revenue, 794 So.2d 614 (Fla. 2d DCA 2001). Both of these cases involved a successful downward modification wherein the paying party was involuntarily unemployed.
An increase in the ability to pay may be sufficient to increase an upward modification of child support. Knapp v. Knapp, 778 So.2d 475 (Fla. 3d DCA 2001). However, future or anticipated events may not be considered due to uncertainty surrounding the events. Knapp v Knapp, 778 So.2d 475 (Fla. 3rd DCA 2001) and Hanbin v Hanbin , 762 So.2d 561 (Fla. 5th DCA 2000).
Section 61.30(2)(a) and (b) GROSS INCOME
Section 61.30(2)(a) provides that gross income shall include certain items, including:
1.Salary or wages;
2. Bonuses, commissions, allowances, overtime, tips, and other similar payments;
3. Business income from sources such as self-employment, partnership, close corporations, and independent contracts;
4. Disability benefits;
5. Worker's compensation;
6. Unemployment compensation;
7. Pension, retirement, or annuity payments;
8. Social security benefits;
9. Spousal support received from a previous marriage or court ordered in the marriage before the court;
10. Interest and dividends;
11. Rental income, which is gross receipts minus ordinary and necessary expenses required to produce the income;
12. Income from royalties, trusts, or estates;
13. Reimbursed expenses or in kind payments to the extent that they reduce living expenses; and
14. Gains derived from dealings in property, unless the gain is nonrecurring.
In Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003), the court held that overtime pay is included in the calculation of gross income under Section 61.30, but to be includable, the overtime pay must be regular and continuous.
Under Section 61.30, allowances for home leave (travel), housing, and vehicle/gas are includable as a part of gross income if they reduce living expenses. Pedroza v. Pedroza, 779 So.2d 616 (Fla. 5th DCA 2001).
In Perdoza, the former husband‚s allowances and reimbursed expenses for housing and travel, which reduced his living expenses, were includable in his gross income. (Id). Any other legitimate perk should be considered a part of gross income as well, if the perk reduces living expenses. Department of Revenue ex rel. Hope v. Hinnerschietz, 850 So.2d 625 (Fla. 2d DCA 2003).
Section 61.30(2)(a)(13) provides that "reimbursed expenses or in-kind payments to the extent that they reduce living expenses" shall be a part of gross income. These payments include housing or housing expenses. See Arze v. Sadough Arze, 789 So.2d 1141 (Fla. 4th DCA 2001); Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995); Garcia v. Garcia, 560 So.2d 403 (Fla. 3d DCA 1990); Sency v. Sency, 478 So.2d 432 (Fla. 5th DCA 1985) (award of exclusive occupancy of home characterized as "child support in kind").
In Lauro v. Lauro, 757 So.2d 523 (Fla. 4th DCA 2000), the Fourth District found that in order for a per diem to be includable in gross income, it must first be shown that the per diem reduced the living expenses of the payor spouse. In Lauro, the payor husband argued that the per diem did not cover his actual expenses. (Id). The court held that unless the husband deducted his actual expenses from his income tax, the per diem could not be included. (Id).
The Legislature intended that reimbursed expenses and in kind payments cover items such as food, housing and vehicles furnished by an employer who is paying wages. These in-kind contributions are included in the calculation of gross income, not net income. Jones v. Jones, 679 So.2d 1270 (Fla. 2d DCA 1996) (specific dollar amounts for in-kind contributions are required); Chapoteau v. Chapoteau, 659 So.2d 1381 (Fla. 3d DCA 1995) (employer-provided housing is included as gross income under 61.30(2)(13); Cozier v. Cozier, 819 So.2d 834 (Fla. 2nd DCA 2002) (company benefits for medical insurance, term life insurance, company car, and IRA contributions are included); and Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003) (company benefits added to gross income).
It should not be overlooked that equitable distribution must be decided before the child support determination. Interest income to be derived in the future on a parent‚s share of the equitable distribution must be considered in determining income for child support. Elliott v. Elliott, 867 So.2d 1198 (Fla. 5th DCA 2004).
The Second District took an interesting approach in Thomas v. Thomas, 712 So.2d 822 (Fla. 2d DCA 1998), by stating:
Nevertheless, under the law governing child support, Mrs. Thomas's exclusive right to occupy the jointly-owned home is in-kind expenses which will reduce living expenses. The award of exclusive use of the marital home to one party reduces the party‚s living expenses, as that party is not required to pay the other party reasonable rental value.
According to the Second District in Thomas, one half of the reasonable rental value shall be included in Mrs. Thomas gross income for child support. (Id).
The rationale for this Thomas rule is that the home is a benefit for the child and custodial parent, incident to child support. The Second District has cited its own Thomas decision with approval in Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003) and Cooper v. Cooper, 760 So.2d 1048 (Fla. 2d DCA 2000). Mitchell holds that Courts have the discretion to award exclusive use and possession of jointly held property to the custodial parent as incident of the noncustodial parent‚s child support obligation. This same principle applies to the noncustodial parent‚s nonmarital property if it shows that the obligor has insufficient income to pay the child support obligation.
The First District in Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002) and Bryan v. Bryan, 765 So.2d 829 (Fla. 1st DCA 2000), agree with Thomas. The Fourth District disagrees with the Second District‚s holding in Thomas, which creates a conflict. Hanley v. Hanley, 734 So.2d 529 (Fla. 4th DCA 1999) (on mot. for certif.) pet. dism, 743 So.2d 12 (Fla. 1999) (payments in-kind are limited to: food, housing, and vehicles furnished by the employer paying wages or reimbursed by another, not as a part of an obligation to maintain joint-property).
Section 61.30(2)(a)(7) requires that portions of a spouse's retirement income be allocated to each of the parties to be included in their respective gross incomes for purposes of the child support calculation. Swanston v. Swanston, 746 So.2d 566 (Fla. 1st DCA 1999); Wrona v. Wrona, 592 So.2d 694 (Fla. 2d DCA 1991).
Sections 61.30(2)(a)(9) and 61.30(3)(g) require that spousal support paid pursuant to a court order be included in the recipient spouse's gross income and deducted from the gross income of the paying spouse. Melo v Melo, 864 So.2d 1268 (Fla. 3rd DCA 2004); Green v Green, 788 So.2d 1083 (Fla. 1st DCA 2001); Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999); Shapiro v. Shapiro, 710 So.2d 114 (Fla. 4th DCA 1998). The calculation of the relative child support obligations of the parties therefore depends upon whether alimony is awarded on remand. Swanston v. Swanston, 746 So.2d 566 (Fla. 1st DCA 1999).
Section 61.30(2)(a)(12) requires that the court consider a person‚s trust income in computing income for child support. Beck v. Beck, 852 So.2d 934 (Fla. 2d DCA 2003). Beck further holds that if a party defers receipt of trust income during the pendency of the case, the trust income is not excluded from gross income.
Section 61.30(2)(b) sets forth the criteria for the trial court to consider in imputing income to a parent. Section 61.30(2)(b) requires that income be imputed to a parent who is voluntarily unemployed or underemployed, absent physical or mental incapacity or other circumstances beyond the control of the parent. Young v. Taubman, 855 So.2d 184 (Fla. 4th DCA 2003). There must be evidence presented in the record that the obligor is voluntarily underemployed or unemployed. Without any such evidence of voluntary unemployment, there can be no finding of unemployment or underemployment. Gerthe v. Gerthe, 857 So.2d 306 (Fla. 2d DCA 2003); McDowell v McDowell, 770 So.2d 1289 (Fla. 1st DCA 2000).
There must be evidence of the amount and source of the imputed amount. Zubkin v. Zubkin, 823 So.2d 870 (Fla. 5th DCA 2002); and Andrews v. Andrews, 867 So.2d 476 (Fla. 5th DCA 2004). If evidence is presented to impute income the Court must make findings of fact to support or deny the imputation of income. Alpert v. Alpert, 29 Fla. L.Weekly D 2308 (Fla. 2nd DCA October 15, 2004); Tipton v Crotty, 872 So.2d 976 (Fla. 5th DCA 2004); and Zanone v Clause, 848 So.2d 1268 (Fla. 5th DCA 2003). There must be competent substantial evidence to support imputed income. LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2nd DCA 2003); and Andrews v Andrews, 867 So.2d 476 (Fla. 5th DCA 2004). Insufficient evidence in Nicholas v. Nicholas, 870.2d 245 (Fla. 2nd DCA 2004 ) precluded any amount of imputed income.
The court may impute income to a spouse, but it is error to use outdated income records to determine the amount of imputed income. Wendel v. Wendel, 852 So.2d 277 (Fla. 2d DCA 2003) (gross income records eight (8) years prior to hearing outdated); Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003) (error to use old income records where spouse‚s income was rising at the time of hearing); Porter v. Porter, 873 So.2d 538 (Fla. 1st DCA 2004); and LaFlam v. LaFlam, 854 So.2d 809 (Fla. 2nd DCA 2003). It is also error for a court to impute income to a spouse at a level which they have not earned in the past. Tarnawski v. Tarnawski, 851 So.2d 239 (Fla. 4th DCA 2003). See also, Solomon v Solomon, 861 So.2d 1218 (Fla. 2nd DCA 2003); Gerthe v Gerthe, 857 So.2d 306 (Fla. 2nd DCA 2003); and Gruber v Gruber, 857 So.2d 329 (Fla. 2nd DCA 2003). The imputation of income, however, is not a basis for holding the payor in contempt. A one time purge payment does not establish the ability to pay in a contempt action. Wendel v Wendel, 875 So.2d 820 (Fla. 2nd DCA 2004).
A court can refuse to impute income to a custodial parent if there is a finding that it is necessary for the parent to stay at home with the children. Section61.13(2)(b). Once children are school aged, custodial ability to work to some extent is usually justified. Mitchell v Mitchell, 841 So.2d 564 (Fla. 2nd DCA 2003).
If a party refuses to provide sufficient documentation to establish income, the trial court may make findings of an amount of imputed income to the recalcitrant litigant. Deoca v Deoca, 837 So.2d 1137 (Fla. 5th DCA 2003). It must be kept in mind that a trial court can only impute income to a level of income that a party could earn, legally. Abbott v Abbott, 832 So.2d 964 (Fla. 2nd DCA 2002).
The financial assistance received by the paying spouse from a boyfriend, girlfriend, parent, other relative or friend is not a factor in determining child support, unless there is evidence such support will continue in the future. Rogers v. Rogers, 824 So.2d 902 (Fla. 3d DCA 2002). The continuation of such financial assistance is purely speculative and nothing more than a mere expectancy. Cozier v. Cozier, 819 So.2d 834 (Fla. 2d DCA 2002) (no evidence that gifts were regular and consistent); Bunassar v. Diaz, 804 So.2d 487 (Fla. 3d DCA 2001); Vorcheimer v. Vorcheimer, 780 So.2d 1018 (Fla. 4th DCA 2001); and Elremmash v. Peterson, 676 So.2d 525 (Fla. 2d DCA 1996) (income for child support purposes cannot be based on family gifts or loans).
Gifts that are made on a continuous basis, which will continue for certain into the future, can be included in determining income. Vorcheimer v. Vorcheimer, 780 So.2d 1018 (Fla. 4th DCA 2001). Generally, the court may not consider future or anticipated events in setting child support due to the uncertainty and speculation of the future event. Edwards v. Sanders, 622 So.2d 587 (Fla. 1st DCA 1993). However, when the future event is certain, the court may consider the event. Nelson v. Nelson, 651 So.2d 1252 (Fla. 1st DCA 1995) (husband‚s decrease in earnings due to the time that will be required in the future to prepare for medical board exams should be considered in advance at the trial as the need for these exams and dates are in the record).
Alimony paid should be deducted from the obligor‚s gross income, and alimony received should be included as income to the obligee for purposes of determining child support. These computations are mandatory. Section61.30(2)(a)(9), and 61.30(3)(9), (2003); Swanston v. Swanston, 746 So.2d 566 (Fla. 1st DCA 1999); Calderon v. Calderon, 730 So.2d 400 (Fla. 5th DCA 1999).
Section 61.30(3) Allowable Deductions from Gross Income
Section 61.30(3) provides the allowable deductions from gross income, including:
(a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities.
(b) Federal insurance contributions or self-employment tax.
(c) Mandatory union dues. (Note: Article I, Section6, Fla. Constitution Ų Right to Work).
(d) Mandatory retirement payments.
(e) Health insurance payments, excluding payments for coverage of the minor child.
(f) Court-ordered support for other children which is actually paid.
(g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court. (2003).
The allowable deductions must actively be paid. If the deduction is not paid, it is not deductible for child support. Torres v Torres, 29 Fla. L. Weekly D1285 (Fla. 3rd DCA August 11, 2004).
The Fourth District stated, "In calculating the husband's income for child support, the only deductions allowed from his salary are those listed in Section 61.30(3). Furthermore, alimony is treated as income to the wife under Section 61.30(2)(a)(9) and a deduction from the husband's income under Section 61.30(3)(g)." Shrove v. Shrove, 724 So.2d 679 (Fla. 4th DCA 1999). The allowable deductions listed in the statute are mandatory when determining the net income of each parent. The trial court has no discretion to change any of the statutory deductions. In determining the amount of child support the husband owes the wife under the guidelines, spousal support paid pursuant to a court order is deducted from the husband‚s income, and added to the wife‚s income. King v. King, 734 So.2d 470 (Fla. 3d DCA 1999).
It must be kept in mind that if alimony ceases after 4 years, the amount child support, originally calculated upon the alimony amount, there is usually an increase in child support at the end of the alimony period. Alimony is no longer considered in determining child support and basis for an increase child support may exist. Perez v Perez, 882 So.2d 537 (Fla. 3d DCA 2004).
The language of Section 61.30(3) is intended to permit only those items listed in the statute as deductions from gross income. Hutslar v. Lappin, 652 So.2d 432 (Fla. 1st DCA 1995). Housing, club fees, car and gas may be income, and foreign taxes are deductions. Any obligation to reimburse the employer is a deduction. Pedroza v. Pedroza, 779 So.2d 616 (Fla. 5th DCA 2001).
"Actual Filing Status" under Section 61.30(3)(a) means post-dissolution filing status. Weiser v. Weiser, 782 So.2d 986 (Fla. 4th DCA 2001). Money tithed is not allowable as a deduction under the statute. Copeland v. Copeland, 667 So.2d 487 (Fla. 1st DCA 1996); Knight v. Knight, 702 So.2d 242 (Fla. 4th DCA 1997). The trial court erred in ordering the amount tithed be deducted from the gross income when calculating child support. (Id).
Section 61.30(7) CHILD CARE COSTS
Whenever childcare costs exist, the provisions of 61.30(7) must be followed. Section 61.30(7) provides:
Child care costs incurred on behalf of the children due to employment, job search, or education calculated to result in employment or to enhance income of current employment of either parent shall be reduced by 25 percent and then shall be added to the basic obligation. After the adjusted child care costs are added to the basic obligation, any moneys prepaid by the noncustodial parent for child care costs for the child or children of this action shall be deducted from that noncustodial parent's child support obligation for that child or those children. Child care costs shall not exceed the level required to provide quality care from a licensed source for the children. (2003).
This section provides that the amount of childcare costs shall be reduced by 25% and then added to the basic child support obligation. Thereafter, calculations are made so that each parent pays his or her pro rata share of the childcare costs. Childcare costs shall not exceed the level required to provide quality care from a licensed provider.
When daycare is necessary because of a spouse's employment, job search or education, Section61.30(7) requires 75% of day care costs be added to the child support obligation. Mannix v. Mannix, 763 So.2d 1135 (Fla. 4th DCA 1999). An obligor should not be required to continue to contribute money for day care expenses if the child is no longer in day care. Sanchez v. Sanchez, 773 So.2d 611 (Fla. 5th DCA 2000). Without questions, findings are required for daycare expenses. Layeni v Layeni, 843 So.2d 295 (Fla. 5th DCA 2003).
Section 61.30(8) HEALTH INSURANCE
The payor spouse is not required to provide health insurance in every case. The trial court erred in requiring a parent to pay health insurance when such insurance was not reasonably available. Certuso v Dick, 843 So.2d 942 (Fla. 4th DCA 2003); Gibson v. Gibson, 596 So.2d 1223 (Fla. 2d DCA 1992). Findings of fact are required before a health insurance obligation can be imposed. Porzio v. Porzio, 760 So.2d 1075 (Fla. 5th DCA 2000).
Section 61.30(11) ADJUSTMENTS OR DEVIATION FROM THE MINIMUM GUIDELINE AMOUNT
The child support guidelines create a presumptive amount the trial court shall set as child support. However, the guidelines are not inflexible and a variation or deviation is permitted under certain equitable circumstances.
As set forth in Section 61.30(1)(a), the trial court, in its discretion, may increase or decrease the guideline amount up to 5%, without written findings, and may exceed 5% if a written finding for the deviation is made. (2003). Child support determinations should not be made by the mathematical formula, standing alone. All cases justify an examination to determine if a deviation or adjustment is appropriate or equitable in light of the totality of the circumstances.
The presumptive amounts of child support are set forth in Section 61.30(6). A trial court must begin with the assumption that the guideline amount is the correct amount for purposes of child support. However, a court may deviate from the presumptive guideline amount in accordance with the provision of Section 61.30(11)(2003).
Section 61.30(11) provides:
(a) The court may adjust the minimum child support award, or either or both parents' share of the minimum child support award, based upon the following considerations:
1. Extraordinary medical, psychological, educational, or dental expenses.
2. Independent income of the child, not to include moneys received by a child from supplemental security income (the child‚s social security on account of the child‚s disability is not a reason to deviate).
3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need.
4. Seasonal variations in one or both parents' incomes or expenses.
5. The age of the child, taking into account the greater needs of older children.
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines.
7. Total available assets of the obligee, obligor, and the child.
8. The impact of the Internal Revenue Service dependency exemption and waiver of that exemption. The court may order the primary residential parent to execute a waiver of the Internal Revenue Service dependency exemption if the noncustodial parent is current in support payments.
9. When application of the child support guidelines requires a person to pay another person more than 55 percent of his or her gross income for a child support obligation for current support resulting from a single support order.
10. The particular shared parental arrangement, such as where the child spends a significant amount of time, but less than 40 percent of the overnights, with the noncustodial parent, thereby reducing the financial expenditures incurred by the primary residential parent; or the refusal of the noncustodial parent to become involved in the activities of the child.
11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt. Such expense or debt may include, but is not limited to, a reasonable and necessary expense or debt which the parties jointly incurred during the marriage.
(b) Whenever a particular shared parental arrangement provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, as follows:
1. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the noncustodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
2. In accordance with subsections (9) and (10), calculate the amount of support obligation apportioned to the custodial parent without including day care and health insurance costs in the calculation and multiply the amount by 1.5.
3. Calculate the percentage of overnight stays the child spends with each parent.
4. Multiply the noncustodial parent's support obligation as calculated in subparagraph 1. by the percentage of the custodial parent's overnight stays with the child as calculated in subparagraph (3).
5. Multiply the custodial parent's support obligation as calculated in subparagraph (2). by the percentage of the noncustodial parent's overnight stays with the child as calculated in subparagraph( 3).
6. The difference between the amounts calculated in subparagraphs (4) and (5) shall be the monetary transfer necessary between the custodial and noncustodial parents for the care of the child, subject to an adjustment for day care and health insurance expenses.
7. Pursuant to subsections (7) and (8), calculate the net amounts owed by the custodial and noncustodial parents for the expenses incurred for day care and health insurance coverage for the child. Day care shall be calculated without regard to the 25-percent reduction applied by subsection (7).
8. Adjust the support obligation owed by the custodial or noncustodial parent pursuant to subparagraph (6) by crediting or debiting the amount calculated in subparagraph (7). This amount represents the child support which must be exchanged between the custodial and noncustodial parents.
9. The court may deviate from the child support amount calculated pursuant to subparagraph (8) based upon the considerations set forth in paragraph (a), as well as the custodial parent's low income and ability to maintain the basic necessities of the home for the child, the likelihood that the noncustodial parent will actually exercise the visitation granted by the court, and whether all of the children are exercising the same shared parental arrangement.
10. For purposes of adjusting any award of child support under this paragraph, "substantial amount of time" means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.
(b)A noncustodial parent's failure to regularly exercise court-ordered or agreed visitation not caused by the custodial parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation. (2003).
A careful analysis of Section 61.30(11), and relevant case law, reveals supportable legal theories to successfully deviate from the minimum presumptive guideline amount. Generally, a trial court‚s deviation or adjustment will not be disturbed on appeal if the variation is based upon the statutory factors and a written finding. Each of the eleven (11) statutory adjustment or deviation factors of section 61.30(11)(a) must be analyzed in each and every case. Obviously, all of these factors do not apply in each case. Nevertheless, it is important to look at each factor thoroughly in every case to determine if a justifiable basis exists to deviate from the minimum guideline amount.
If the overnights for the year are less than 40 percent, („significant amount of time" in Section61.30(11)(a)10 the trial court has the discretion to adjust the child support. Karimi v.Karimi, 867 So.2d 471 (Fla. 5th DCA 2004). On the other hand, if the non-custodial parent has the child for annual overnights of over 40 percent, the trial court is not even mandated to apply the „substantial amount of time" adjustment under the guidelines. The trial judge must consider, in its discretion, the factors in Section61.30(11)(b) before an adjustment can be made. Mitchell v Mitchell, 841 So.2d 564 (Fla. 2nd DCA 2003).
Section61.30(11)(a)(1) Extraordinary Medical, Psychological, Educational, or Dental Expense
Section Section61.30(11)(a)(1) requires a court to evaluate any extraordinary health or educational expenses. Quite clearly, the special needs of the child must be included. Torres v Torres, 29 Fla. L. Weekly D1285 (Fla. 3rd DCA August 11, 2004). Courts may order a parent or parents to pay for private school tuition where there is an ability to pay and private school is in the best interests of the child, so long as there is competent substantial evidence that:
a. the parties agree the child should be in private school; or
b. private school is the customary standard of living, Cleary v Cleary, 872 So.2d 299 (Fla. 2nd DCA 2004); or
c. the child has special needs that cannot be met by the public schools, Hanely v Hanley, 734 So.2d 529 (Fla. 4th DCA 1999); or
d. the Court follows Section61.30(11)(a) and deviates more than five (5) percent with specific findings. Forrest v Ron, 821 So.2d 1163 (Fla. 3rd DCA 2002); Liebler v Liebler, 413 So.2d 1246 (Fla. 3rd DCA 1982).
In Mosser v Watkins, 752 So.2d 141 (Fla. 2nd DCA 2000) the court reversed an order requiring payment for private school. The evidence to meet the legal criteria was insufficient. The First District agreed in McDaniel v McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003).
In Pollow v. Pollow, 712 So.2d 1235 (Fla. 4th DCA 1998), a deviation upward from the guideline amount was justified due to the extraordinary condition of the mental health needs of the children. However, the court found the husband‚s current income was insufficient to require him to pay private school tuition. His monthly gross income was $5,500. (Id). The trial court required the husband to pay $1,800 in tuition costs. (Id). The Fourth District reversed the tuition award because it found that the child support and tuition awards would be 78% of the husband‚s income. (Id).
The Second District found in Friedman v. Carr, 777 So.2d 1012 (Fla. 2d. DCA 2000), an order requiring the father to continue paying for the child's tuition was ambiguous, and not enforceable. The mother had enrolled the child in private elementary school and sought reimbursement of over $5,000 for the tuition deposit. (Id). The court held that the order to pay tuition was not enforceable. (Id). The order did not specify whether tuition payments would continue when the child started elementary school. (Id). The elementary school tuition was substantially higher than the pre-school tuition the father had been paying. (Id).
Section 61.30(a)(2) Independent Income of Child
A typical form of independent income attributable to a child is social security benefits. There are significant issues in determining how social security benefits are treated in child support calculations. Typical social security benefits are:
1. Disability benefits resulting from a party‚s disability and received by the parent.
2. Disability benefits resulting from the parent‚s disability and received by the child or children.
3. Disability benefits resulting from the child or children‚s disability and received by the child or children for retirement benefits.
One issue is how social security benefits should be treated in calculating child support under the guidelines. The First District held that a parties‚ income for child support purposes includes social security benefits paid to the party, plus the dependent benefits paid to the child. Williams v. Williams, 560 So.2d 308 (Fla. 1st DCA 1990). The Fourth District disagreed with the holding of Williams, but receded from its view in Sealander v. Sealander, 789 So.2d 401 (Fla. 4th DCA 2001). In Ford v. Ford, 816 So.2d 1193 (Fla. 4th DCA 2002), the court held:
When a parent is receiving social security disability income due to a disability and, as a result, his or her children receive dependent benefits, the total benefits received by or on behalf of that parent are attributed to the disabled parent as income in the child support guideline calculation. The dependent benefits are then credited toward the disabled parent's obligation, that is, they are a payment of the obligation on behalf of the disabled parent. If the benefits are less than the support obligation, the disabled parent must pay the difference. If they are more, the benefits pay the obligation in full, but any excess inures to the benefit of the children.
The Second District agreed with the First District‚s decision in Williams that child support calculations should attribute income to a party in the amount equivalent to the total of the monthly disability benefits received by the party, and the children resulting from his disability. Wallace v. Department of Revenue, ex. rel. Cutter, 774 So.2d 804 (Fla. 2d DCA 2000).
Section 61.30(11)(a)(6) Special Needs
Special needs of children can form a basis for an upward deviation from the guidelines. The additional expenses necessary to meet the needs of a handicap child justify a child support award exceeding the mathematical guidelines. Cifrian v. Cifrian, 715 So.2d 1068 (Fla. 4th DCA 1998). An upward deviation awarded in a modification case was granted for special needs of a disabled child. Kuthas v Ritter, 879 So.2d 3 (Fla. 2nd DCA 2004).
Special needs are not limited to handicapped children. Additional longstanding extracurricular activities such as 4-H club justify an increase in the child support award. Stock v. Stock, 693 So.2d 1080 (Fla. 2d DCA 1997). In Stock, the trial court increased the father‚s child support in excess of the guideline amount so to maintain the expense of the children‚s horse hobby. (Id). The Second District reversed and remanded for further consideration. (Id). The Second District held that on remand, the trial court must consider the parties‚ substantial debts and whether the parties can afford the maintenance and expense of the horses. (Id).
Section 61.30(11)(a)(7) Total Assets of Each Party and Child
The court may adjust child support upon consideration of the total assets of the obligee, obligor, and the child. This provision contemplates high asset levels without income to a party or the child.
The court has the authority to request marital assets to secure future child support. The special circumstances exist whenever there is a strong likelihood that the obligor will not pay child support in the future. In Cole v. Cole, 723 So.2d 925 (Fla. 3d DCA 1999), the husband‚s marital assets were sequestered given his unsettled immigration status in this country.
Section 61.30(11)(a)(8) Internal Revenue Service Dependency Exemption
The impact of the Internal Revenue Service dependency exemption is a discretionary decision by the trial court. The exemption may be awarded to either party. In Harris v. Harris, 760 So.2d 152 (Fla. 2d DCA 2000), the Second District stated:
Prior to the Tax Reform Act of 1984, the Internal Revenue Code specified the conditions under which a parent could claim a child as an income tax deduction. For example, a noncustodial parent could claim the deduction when the trial court order awarded it to him or her. However, the conditions were difficult to apply, and parents frequently contested the deduction issue with the Internal Revenue Service.
The trial court can have the primary parent sign a waiver (IRS form 8332) if the non-custodial parent is current in their support obligations. Davies v. Turner, 802 So.2d 1195 (Fla. 1st DCA 2002). The dependency exemption may be used by unmarried parents as long as One spouse is paying child support. Negron v.Ray, 769 So.2d 524 (Fla. 5th DCA 2000).
Section 61.30(11)(a)(9) Award in Excess of 55% of Obligor‚s Income
Whenever the presumptive child support amount is more than 55% percent of the obligor's gross income, the court may, in its discretion, make a deviation. Moss v. Moss, 636 So.2d 164 (Fla. 4th DCA 1994).
Section 61.30(11)(a)(11) Any Other Adjustment Necessary to Achieve Equitable Results
Finley v. Scott, 707 So.2d 1112 (Fla. 1998) is the seminal case in deviation from the guidelines to "achieve an equitable result." In Finley, the Court held that a trial court is not bound to mathematically apply the guidelines. (Id). The Court held:
To assist trial courts in making this fact-intensive decision in future cases, we expressly point out that a trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the guideline amount should be varied by more or less than five (5) percent, the trial court must explain in writing the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court's determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors. See also Solomon v. Solomon, 2003 Fla. App. LEXIS 12535 (Fla. 2d DCA 2003).
In Department of Revenue v. Smith, 716 So.2d 333 (Fla. 2d DCA 1998), a child was born out of wedlock. The mother sought child support from the father, who was married and had two children. (Id). To achieve an equitable result, the court appropriately deviated downward from the guideline amount for a child born out of wedlock. (Id).
Section 61.30(3)(f) states that a party may deduct from gross income for "court-ordered support" for other children which is actually paid. (2003). There is no specific deduction in Section 61.30 for child support "provided" by a parent to a child living with that same parent. To counter this inequity, Section 61.30(11)(a)(11) applies in cases where the parent obligated to pay child support also "provides" support for a child living with that parent. Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996). In Flanagan, the mother was obligated to pay child support for two children upon divorce. (Id). The court held that in a modification proceeding, the mother's child support obligation should be reduced by the amount she "provides" for support to another child living with to avoid an inequitable result. (Id). The First District agrees with this principle. Hutslar v. Lappin, 652 So.2d 432 (Fla. 1st DCA 1995).
Section 61.30(11)(b) SUBSTANTIAL AMOUNT OF VISITATION TIME
Section Section61.30(11)(b) provides that when a child spends a „substantial amount of time" with the non-custodial parent, the court shall adjust the child support award. Sichewski v. Sichewski, 796 So.2d 1233 (Fla. 4th DCA 2001). The statute defines „a substantial amount of time" as at least 40 percent of the overnights with the non-custodial parent. (Id). Whenever the non-custodial parent has at least 40% of the overnights, the trial court must calculate the child support in accordance with Section 61.30(11)(b), pursuant to Section61.30(1)(a). Rainsberger v. Rainsberger, 819 So.2d 275 (Fla. 2d DCA 2002). The calculation will result in a reduced child support amount owed by the non-custodial parent. Thereafter, the trial judge, utilizing discretion, shall recalculate the child support in light of all of the factors in Section61.30(11)(b). Migliore v. Migliore, 848 So.2d 1250 (Fla. 4th DCA 2003); Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003); Santiago v. Santiago, 830 So.2d 922 (Fla. 4th DCA 2002); Jensen v. Jensen, 824 So.2d 315 (Fla. 1st DCA 2002); Constantino v. Constantino, 823 So.2d 155 (Fla. 4th DCA 2002). However, the Fifth District has held that the reduction is mandatory. Seiberlich v. Sieberlich, 859 So.2d 570 (Fla. 5th DCA 2003).
As the Second District set forth in Mitchell, despite the 40% mandatory language of the statute, if after evaluating the criteria in Section 61.30(11)(b), the trial court finds that the child support award should not be modified, the court has the discretion to not adjust the child support award. Migliore, Mitchell, Santiago, Jenson, and Constantino state that the court must look to the criteria in 61.30(11)(b) before making its ultimate and final child support decision. The trial court is required to make the „substantial amount of time" calculation if the particular shared parental arrangement provides for at least 40% of the overnights for the non-custodial parent, irrespective of whether the 40% of overnights is actually exercised. Migliore, supra. If the 40% is not exercised, the custodial parent may seek a child support adjustment under Section 61.30(11)(c). (Id). Thus Section 61.30(11)(c) provides that failure to exercise the 40% shall be a substantial change of circumstances to modify child support payments from the calculations made based upon the shared parenting arrangement that the non-custodial parent has over 40% of the overnights.
Section 61.30(12) SUBSEQUENT CHILDREN
Section 61.30(12) sets forth considerations for courts when considering a petition for upward modification of child support when the payor spouse has subsequent children. This subsection has strict limitations. Subsequent children are not a basis for downward modification of an existing award.
However, in Gebauer v. State of Florida, Department of Revenue, 706 So.2d 407 (Fla. 4th DCA 1998), the Fourth District found an exception to Section 61.30(12). The subsequent child suffered rheumatoid arthritis. (Id). The child‚s special need warranted a deviation from Section 61.30(12). (Id). The Gebauer decision emphasizes that there must be some „special circumstance" to justify a deviation from the guidelines, otherwise, Section 61.30(12) will be followed. For example, there is no child support adjustment where an obligor-father had a baby with a new wife. Robinson v. Robinson, 657 So.2d 958 (Fla. 1st DCA 1995).
Section 61.30(12) sets forth a preference for a child under the protection of an existing court order over a subsequent child. Without this preference, the children of the first marriage might find their standard of living substantially reduced by the voluntary act or acts of the payor parent. Courts must focus on the fact that a payor parent, who elects to have subsequent children, does so with the knowledge of a continuing obligation to the children of the first marriage. Pohlmann v. Pohlmann 703 So.2d 1121 (Fla. 5th DCA 1997). In seeking a downward modification based upon subsequent children, a non-custodial parent has a heavy burden. Tietig v. Boggs 602 So.2d 1250 (Fla. 1992). Section 61.30(12) only applies in cases where there is an existing legal obligation of support, and then only in a proceeding for upward modification of that obligation. Department of Revenue v. Feeney, 689 So.2d 350 (Fla. 2d DCA 1997); Clowdis v. Earnest 629 So.2d 1044 (Fla. 2d. DCA 1993). In a proceeding seeking an upward modification, if the obligor raises the issue of subsequent children, the income of the obligor‚s present wife may be considered. The statute specifically so provides. Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996.)
In Department of Revenue ex rel. Marshall v. Smith, 716 So.2d 333 (Fla. 2d DCA 1998), the Second District identified two methods of accounting for other children in the guidelines calculation. The Second District stated:
In the present case, instead of subtracting the amount that Smith must reasonably expend for his two older children's support from his monthly income, the trial court subtracted the amount of child support that Smith would have been required to pay for their support pursuant to the guidelines if he and his wife had divorced. We conclude that it was within the trial court's discretion to use either approach. We recognize that section 61.30(3)(f), Florida Statutes (1995), allows a deduction from gross income for "[c]ourt-ordered support for other children which is actually paid." Obviously Smith does not pay a court-ordered amount for his two older children's support. See Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996). However, Smith is responsible for providing support for these two older children, regardless of whether he and his wife remain married. To only allow him credit for such support if he divorces would be unjust and would also be contrary to the State's interest in preserving the family unit. (Id).
Section 61.30(17) RETROACTIVE CHILD SUPPORT
Section Section61.30(17) provides that in any initial determination of child support, and any paternity action, dissolution of marriage, or petition for support during the marriage, the court has the authority in its discretion to award child support retroactive to the date when the parents last resided together in the same household with the child. (2003). In most cases, child support could be awarded, upon the prerequisite proof, to the date of separation but in no event can the retroactive child support be for a period exceeding 24 months from the filing date (add effective date to explain retroactive problem). (Id). Section 61.30(17) sets forth three separate factors, which the court must consider, including:
1. The guidelines in effect at the time of the hearing shall apply subject to the payor‚s actual income. If the payor does not demonstrate his or her income during the retroactive period, the court „shall" use the obligor‚s income at the time of the hearing in computing child support for the retroactive period.
2. The court shall consider actual payments made by the non-residential parent for child support or to third parties for the benefit of child during the retroactive period.
3. The court shall consider installment payments relating to any retroactive child support owed.
The statute makes it clear that the obligee does not have to prove the actual income of the obligor during the rehabilitative period to establish retroactive child support. If the obligor does not establish his or her income during the retroactive period, the obligor‚s income at the time of the hearing will be used to determine child support for the retroactive period. However, imputed income cannot be used. Cameron v. Dickey, 871 So.2d 1002 (Fla. 5th DCA 2004). During the retroactive period, the Court, in accordance with Section61.30(17)(b), must consider all actual payments by the non-residential parent to the residential parent or to third parties for the benefit of the child. Rogers v Brown, 29 Fla. L. Weekly D 2281 (Fla. 3rd DCA October 14, 2004).
One must keep in mind that the determination of the retroactive child support amount is a discretionary decision by the trial court. Miles v.Champlin, 805 So.2d 1085 (Fla. 1st DCA 2002). In Jacoby v. Jacoby, 763 So.2d 410 (Fla. 2d DCA 2000), the trial court did not abuse its discretion in denying retroactive child support. In an original proceeding, the court awarded child support retroactive to the date of the petition, Tomlinson v. Kowal, 780 So.2d 173 (Fla. 2d DCA 2001); McDowell v. McDowell, 770 So.2d 1289 (Fla. 1st DCA 2000). In fact, retroactive child support must be granted to the date of the petition or counter-petition for dissolution of marriage where a need exists and the ability to pay is present. Leventhal v Leventhal, 29 Fla. L. Weekly D 2171 (Fla. 3rd DCA September 29, 2004). The Court does not have jurisdiction to grant retroactive child support prior to the date of the petition or counter-petition. Galperin v Galperin, 682 So.2d 10 (Fla. 2nd DCA 2003).
In contrast, retroactive child support to the date of the petition was properly denied where the mother-custodial parent lived in the home with the child after the filing date in light of the totality of the circumstances. Thomas v. Thomas, 776 So.2d 1092 (Fla. 5th DCA 2001). However, in Yockey v. Yockey, 784 So.2d 582 (Fla. 4th DCA 2001), the Fourth District found that once a petition to reduce child support based on a child reaching the age of majority is filed, as a matter of law, no support is further owed for that child and the paying parent should not be required to continue payments simply because it may take several months or longer for the court to hear the petition. The court noted "to hold otherwise would encourage the receiving parent to engage in unnecessary delay and litigation to prolong the payment of support." (Id).
There is no standing for an adult child to sue for child support. In Bardol v. Martin, 763 So.2d 1119 (Fla. 4th DCA 1999), the Fourth District addressed the right of adult children to sue for child support. The court stated:
While the dissent argues the appellants have a common law right to retroactive support, our research reveals no case anywhere in which adult children have successfully maintained a suit against their parents for retroactive support. In fact, it seems there would be good policy reasons why an adult child would not have standing to sue a parent under these circumstances. (Id).
In Horn v. Florida Department of Revenue ex rel. Abel, 752 So.2d 687 (Fla. 3d DCA 2000), the Third District determined whether the revision on retroactivity could be applied retroactively. The Third District held, „Florida courts have consistently held Section 61.30 cannot be applied retroactively to cases filed prior to the statute's effective date." (Id., See also Martinez v. Agostini, 579 So.2d 280 (Fla. 3d DCA 1991); Trager v Trager, 541 So.2d 148 (Fla. 4th DCA 1989). This conclusion rests on the reasoning that the initial enactments of these subsections create new rights and liabilities, and should be applied only prospectively. Reed v. Reed, 597 So.2d 936 (Fla. 1st DCA 1992). In McMillian v. State, Department of Revenue on behalf of Searles, 746 So.2d 1234 (Fla. 1st DCA 1999), the First District stated:
Because the amendment to section 61.30(17) limits a child's right to past parental support, the amendment is primarily substantive in nature and thus may not receive retroactive application. In this regard, appellant's reliance on Walworth v. Klauder, 615 So.2d 219 (Fla. 5th DCA 1993), is misplaced. In Klauder, the court found the thrust of the revision to section 743.07(2) was to clarify the extent and scope of a parent's obligation to pay child support past the child's eighteenth birthday. Unlike Klauder, this case concerns a parent's obligation for past support, which obligation existed well before the effective date of the amendment to section 61.30(17).
If a court orders increased child support, retroactive child support is the rule, not the exception. It is an abuse of discretion to grant an increase in child support and deny retroactive child support where the need for support existed at the time the modification was filed. Levi v. Levi, 780 So.2d 261 (Fla. 3d DCA 2001). Any attempt to impute income to the payor for retroactive support must be based upon competent substantial evidence. In Kochinsky v. Moore, 729 So.2d 407 (Fla. 4th DCA 1999), the Fourth District found there was no basis to impute income of $4,500 per month for to the paying parent for retroactive child support because to „file a claim for retroactive child support, there must be competent substantial evidence of the obligor‚s ability to pay during the retroactive period."
When the child support provision fails to allocate the amount of support attributable to each child, the trial court cannot retroactively terminate child support before the date the petitioner requested such relief. Fla. Dept. Rev. v. Wilson, 782 So. 2d 952 (Fla. 2d DCA 2001); Ponce v. Minda, 805 So.2d 972 (Fla. 2d DCA 2001)
SPECIFIC WRITTEN FINDINGS TO JUSTIFY A DEPARTURE FROM GUIDELINE AMOUNT
It is imperative that the court order set forth the specific written findings providing the reasons for its deviation from the minimum guideline amount. Dep‚t of Revenue v. Skirko, 855 So.2d 1205 (Fla. 5th DCA 2003); McDaniel v. McDaniel, 835 So.2d 1265 (Fla. 1st DCA 2003); Niemann v. Anderson, 834 So.2d 319 (Fla. 5th DCA 2003). The findings are clothed with a presumption of correctness. LaFaille v. LaFaille, 837 So.2d 601 (Fla. 1st DCA 2003).
The obligor‚s need to replace his artificial leg may be a need for a deviation, but the trial court‚s failure to make specific findings required reversal and remand for further proceedings. State of Florida, Department of Revenue v. Cain, 675 So.2d 679 (Fla. 1st DCA 1996).
INCOME DEDUCTION ORDERS
When there is more than one Income Deduction Order Notice against the same obligor, child support obligations for the second wife and minor children have priority over past due support obligations for the obligor‚s adult children from the first marriage. Department of Revenue v. Knight, 765 So.2d 963 (Fla. 4th DCA 2000). In Knight, the Fourth District held, „The Income Deduction cannot be used for the payment of attorney‚s fees." Id.; See also Nash v. Nash, 688 So.2d 428 (Fla. 3d DCA 1997); Board of Pension Trustees of City, General Employees Pension Plan v. Vizcaino, 635 So.2d 1012 (Fla. 1st DCA 1994).
The Income Deduction Order cannot be used to effectuate an equitable distribution such as a pension plan. Motil v. Motil, 771 So.2d 1251 (Fla. 2d DCA 2000); Colligan v. Colligan, 759 So.2d 688 (Fla. 3d DCA 2000). The obligor‚s other financial obligations is not a basis to deviate from the minimum child support amount. Riley v. Parker, 624 So.2d 828 (Fla. 1st DCA 1993).
LIFE INSURANCE AS SECURITY FOR CHILD SUPPORT
The situation arises from time to time, where the child support obligor, who is required to maintain life insurance for child support, changes the beneficiary from the child to a new spouse or other beneficiary. Thereafter, the obligor dies and there is a major dispute between the child and the named beneficiary. This substantial issue has been resolved by the Second District in favor of the child.
There must be special circumstances that justify the need for life insurance as security for child support. Alpha v Alpha, Fla. Law Weekly, 5th DCA, November 2004. Special attention should be given to the presentation of competent substantial evidence to support an award of life insurance; insufficient evidence will preclude a life insurance provision in the judgment. Melo v. Melo, 864 So.2d 1268 (Fla. 3d DCA 2004).
In Browning v. Browning, 803 So.2d 722 (Fla. 2d DCA 2001), life insurance proceeds were awarded to the minor children rather than the named beneficiaries in accordance with the life insurance provisions in the final judgment. The critical issue is abuse of confidence or mistake by the party who failed to maintain the court-ordered life insurance policy by naming the child as the beneficiary of the policy as security for child support. (Id).
In Layeni v. Layeni, 843 So.2d 295 (Fla. 5th DCA 2003), the court held that it was error for the former husband to be required to maintain a life insurance policy to ensure payment of his child support obligations when no such necessity for the protection was shown.
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