Cash v. Cash

122 So. 3d 430, 2013 WL 5288857, 2013 Fla. App. LEXIS 14970
CourtDistrict Court of Appeal of Florida
DecidedSeptember 20, 2013
DocketNo. 2D12-435
StatusPublished
Cited by6 cases

This text of 122 So. 3d 430 (Cash v. Cash) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cash v. Cash, 122 So. 3d 430, 2013 WL 5288857, 2013 Fla. App. LEXIS 14970 (Fla. Ct. App. 2013).

Opinion

BLACK, Judge.

Charles E. Cash, the former husband, appeals the trial court’s supplemental final judgment of dissolution of marriage. The former husband and Jennifer Sue Cash, the former wife, were married in 2001 and divorced in 2007. During the dissolution proceedings, the parties entered into a marital settlement agreement which included a child support obligation calculated using a stipulated-to income attributed to the former husband.

In 2010, the former husband filed a petition to modify his child support payments, contending that his income had drastically decreased from the attributed figure, constituting a material change in his financial circumstances. Following a one-day hearing on the former husband’s petition, the trial court entered a letter ruling reducing the former husband’s monthly child support obligation from $5031 to $3756. Two months later the court rendered the supplemental final judgment in order form. The order is identical to the letter ruling.

On appeal, the former husband argues that the trial court abused its discretion in ordering child support that deviates from the guidelines figure. He also argues that the trial court erred in failing to impute income to the former wife, in calculating the former husband’s income, and in failing to apply the reduced child support obligation retroactively to the date the petition for modification was filed. We agree with the former husband.

I. Deviation from the guidelines

In its supplemental final judgment, the trial court included two upward deviations from the child support guidelines’ figure, stating that “the [cjourt shall deviate from the child support guidelines by the [five percent] permitted without extraordinary circumstances required and shall further deviate by requiring an additional [five percent] as a result of the [h]usband’s limited timesharing with the children.” The order on appeal includes only the finding that “[c]hild support based on [the former husband’s monthly] income of $23,000 will dramatically decrease the [fjormer [w]ife’s child support income and make it difficult for the [f]ormer [w]ife to meet her financial obligations.” The trial court made no oral findings on the record at the hearing on the former husband’s petition.

Section 61.30(l)(a), Florida Statutes (2010), provides:

The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.

[433]*433Section 61.30(ll)(a) provides an additional set of deviation factors:

The court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon the following deviation factors:
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.
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 presumptive amount established by the guidelines.
7. Total available assets of the obligee, obligor, and the child.
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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.

Although not entirely clear, it appears the court may have deviated from the presumptive child support figure based upon the former wife’s purported monthly deficit in the event the child support significantly decreased. While we recognize that specific findings are not required for a five percent deviation, see Fla. Dep’t of Revenue ex rel. Bloemendal v. Hodge, 754 So.2d 845, 846 (Fla. 2d DCA 2000), neither the record nor the order in this case indicates that the court considered any of the statutory factors in increasing the presumptive child support obligation by five percent. Therefore, the trial court abused its discretion in ordering the deviation. See Thyrre v. Thyrre, 963 So.2d 859, 863-64 (Fla. 2d DCA 2007).

The court also abused its discretion in ordering a second five percent deviation. The supplemental final judgment states only that the court is deviating from the guidelines by an “additional [five percent] as a result of the [former] [h]usband’s limited time sharing with the children.” Section 61.30(1) mandates that a deviation in excess of five percent must be supported by “a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.” § 61.30(l)(a); see also Whittingham v. Whittingham, 67 So.3d 239, 239 (Fla. 2d DCA 2010). Here, the court’s finding is insufficient. See Swanston v. Swanston, 746 So.2d 566, 570 (Fla. 1st DCA 1999); cf. Hodge, 754 So.2d at 847. See generally Hall v. Hall, 994 So.2d 1169, 1171 (Fla. 1st DCA 2008) (“[Djeviation from the guidelines normally is justified where a child’s special needs call for more support.”).

II. Failure to impute income to former wife

In the supplemental final judgment the court did not impute income to the former wife, finding that “the evidence was insufficient.” The former husband contends this is error given the evidence presented at the hearing. The court’s order provides no basis for its decision to impute no income to the former wife, and the record reflects that the former husband asked the court to impute income at the hearing on his petition for modification.

[434]*434Monthly income “shall be imputed to an unemployed or underemployed parent when such [unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control.” § 61.30(2)(b). Imputing income is a two-step analysis: “(1) the determination of whether the parent’s underemployment was voluntary, and (2) if so, the calculation of imputed income.” Bator v. Osborne, 983 So.2d 1198, 1200 (Fla. 2d DCA 2008). The former husband had the burden of proof as the party asserting that the former wife was voluntarily unemployed and that income should be imputed to her. See Torres v. Torres, 98 So.3d 1171, 1172 (Fla. 2d DCA 2011).

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Cite This Page — Counsel Stack

Bluebook (online)
122 So. 3d 430, 2013 WL 5288857, 2013 Fla. App. LEXIS 14970, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cash-v-cash-fladistctapp-2013.