Kuttas v. Ritter

879 So. 2d 3, 2004 WL 912663
CourtDistrict Court of Appeal of Florida
DecidedApril 30, 2004
Docket2D03-202
StatusPublished
Cited by8 cases

This text of 879 So. 2d 3 (Kuttas v. Ritter) 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
Kuttas v. Ritter, 879 So. 2d 3, 2004 WL 912663 (Fla. Ct. App. 2004).

Opinion

879 So.2d 3 (2004)

John C. KUTTAS, Appellant,
v.
Anne R. RITTER f/k/a Anne R. Kuttas, Appellee.

No. 2D03-202.

District Court of Appeal of Florida, Second District.

April 30, 2004.

*4 John Kuttas, Hartsdale, NY, for Appellant John C. Kuttas.

Jeanne L. Coleman of Law Office of Jeanne L. Coleman, Tampa, for Appellee.

CASANUEVA, Judge.

This unique case involves a modification of the child support aspects of a final judgment of dissolution of marriage. Both children concerned, two teenage boys, are affected by autism, one severely and the other mildly, as well as other behavioral and learning problems. The final judgment of dissolution provided for shared parental responsibility, with Ms. Ritter as the primary residential parent and Mr. Kuttas permitted liberal visitation. When Mr. Kuttas moved from Florida to Maryland without notifying Ms. Ritter in advance, Ms. Ritter filed a motion to modify child support on the ground that Mr. Kuttas was no longer able to exercise visitation with the boys approximately every other weekend. The consequence of that move was that Ms. Ritter received no regular relief from taking care of these difficult children, and she moved the court to modify the child support award by departing upward from the guidelines based upon the children's special needs. Mr. Kuttas contested the need for increased support and counterpetitioned for modification of the visitation aspects of the final judgment, requesting that he be allowed visitation for all of the summer months. After numerous motions and hearings, the trial court entered a final judgment modifying both child support and visitation; furthermore, the court ordered that Ms. Ritter was entitled to attorney's fees associated with Mr. Kuttas's failure to comply with an order on motion for contempt and for other bad faith conduct during the litigation. We affirm in part, reverse in part, and remand.

*5 Substantial Change in Circumstances

Section 61.13(1)(a), Florida Statutes (2001), provides that a court has the authority to modify child support orders "when there is a substantial change in the circumstances of the parties." See also Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997). Mr. Kuttas contends that the court erred in finding a substantial change in circumstances based simply on his move to Maryland and his concomitant inability to exercise weekend visitation, asserting that there is no correlation between visitation and child support. See Bassett v. Saunders, 835 So.2d 1198, 1200 (Fla. 1st DCA 2002) (citing section 61.13(4)(b), Fla. Stat. (2000), for the proposition that "visitation rights and the obligation for child support are unrelated").

In another vein, Mr. Kuttas also argues that modification was inappropriate because his basic statutory guideline obligation after the move to Maryland was changed in an insignificant amount. As stated in the March 2001 order, Mr. Kuttas's basic statutory support obligation was $1040; following the final hearing, his basic obligation (if calculated correctly) increased only $53 to $1093.87 per month, a difference of only five percent. Furthermore, the March 2001 order provided: "Should the Former Wife incur child care costs, the Former Wife shall present proof of the child care expense and the Former Husband shall reimburse her within 14 days of receipt of the accounting." Thus, Mr. Kuttas claims that there had been no substantial change in circumstances, in that the financial ramifications of his new employment were not substantial and a mechanism was in place by which Ms. Ritter would be compensated for child care costs.

Mr. Kuttas's argument is without merit, however, not only because section 61.13(4)(b) speaks to a circumstance not present here—a noncustodial parent's withholding of child support based on the custodial parent's refusal to honor the noncustodial parent's visitation—but also because this case presents a unique situation. After Mr. Kuttas moved to Maryland, Ms. Ritter sought for the first time an upward deviation from the child support guidelines based upon the children's "[s]pecial needs, such as costs that may be associated with the disability of a child." § 61.30(11)(a)(8), Fla. Stat. (2001). Both parents agreed that their children were disabled within the meaning of section 743.07(2), Florida Statutes (2001), and would require support beyond the age of majority. See Hanley v. Hanley, 734 So.2d 529, 530 (Fla. 4th DCA 1999) (affirming the requirement that the father continue to pay one-half of the private school tuition beyond the child's eighteenth birthday because the trial court explicitly stated that the child's special needs justified the expense). We agree with the trial court's finding that the children's special needs, which had not been a basis for a prior deviation from the guidelines, together with the impact of Mr. Kuttas's relocation to Maryland, constituted a substantial change of circumstances justifying Ms. Ritter's need for additional child support.[1]*6 We emphasize, however, that Mr. Kuttas's voluntary relocation to Maryland would not constitute a substantial change in circumstances absent the other circumstances unique to this case.

Findings Related to Respite Care

Although it was appropriate for the court to modify child support in an amount exceeding the child support guidelines based on the children's special needs, there was no clear evidence in the record to support the conclusion that Mr. Kuttas's additional obligation should be set at $526.52 per month. Although not spelled out in the order, it is clear from the hearings leading up to the entry of the final judgment that the court calculated Ms. Ritter's additional need based on twenty-four hours of respite care for each of her children per month, at eighteen dollars per hour. From a total cost of $864 per month, the court required the husband to pay 60.94 percent, his percentage of the statutory obligation.

Without question, the record reveals that both of these parents love their children and want to spend time with them. But the testimony of both parents at the final hearing clearly demonstrates the difficulties inherent in parenting not one but two children with some degree of autism, aggression, learning and speech difficulties, and obsessive or compulsive behaviors.

Because of the severity of his mental and physical challenges, the older son, George, receives government-funded services, which include respite care for twelve to fifteen hours a week. On a regular basis, George, who was seventeen at the time of the final hearing, is taken out with other challenged teenagers for group activities and social events for a couple of hours on weekday afternoons and for four or five hours on Saturdays. Jacob, who was then fourteen, functions at a much higher level, and the parents anticipate that he will some day be self-supporting. Unlike George, he does not qualify for government-funded services. Furthermore, both parents testified that each boy tends to do somewhat better, exhibiting less aggression and acting out, when the other is not around.

Ms. Ritter testified that she could secure respite care for George at a cost of eighteen dollars per hour, but she specifically stated that she did not know how much it would cost for both boys to receive care simultaneously. There was no evidence concerning the availability or cost of respite care for Jacob, or, frankly, much evidence of his specific need for it. Therefore, the court's method of doubling the hourly cost to arrive at a figure was arbitrary. See Rowland v. Rowland,

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Bluebook (online)
879 So. 2d 3, 2004 WL 912663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuttas-v-ritter-fladistctapp-2004.