M. M. v. J. H.

• Court: District Court of Appeal of Florida
• Decided: July 6, 2018
• Docket: 17-1921
• Status: Published

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

M.M., ) ) Appellant, ) ) v. ) Case No. 2D17-1921 ) J.H., ) ) Appellee. ) )

Opinion filed July 6, 2018.

Appeal from the Circuit Court for Hillsborough County; Nick Nazaretian, Judge.

Mark F. Baseman of Felix, Felix & Baseman, Tampa, for Appellant.

Thomas A. Burns and Arda Goker of Burns, P.A., Tampa, for Appellee.

BADALAMENTI, Judge.

M.M. (the Mother) seeks review of a Final Judgment of Paternity and

Parenting Plan that, among other things, ordered her to pay child support to J.H. (the

Father). After careful review and the benefit of oral argument, we reverse the trial

court's award of child support to the Father. At bottom, the trial court neglected to make

the required findings to order the Mother to pay child support to the Father. We thus remand to the trial court to make the requisite findings to support any child support

award.

The Mother and the Father were a couple for approximately fourteen

years but never married. In 2009, the Mother gave birth to a boy and, in 2011, the

couple separated. In 2013, the Mother filed a petition for paternity seeking a judgment

declaring the Father as the legal father of the boy. The petition also set forth a

proposed parenting plan for the trial court's consideration. The trial court subsequently

entered final judgment of paternity, which incorporated the Mother's proposed parenting

plan.

For the next three years, the parents followed through with the parenting

plan, amicably agreeing, as co-parents, to make adjustments where needed. During

this period, the Mother married a man who subsequently accepted an employment offer,

necessitating his relocation from Florida to Idaho. The Mother thus petitioned the trial

court to relocate the child to Idaho so that the child could join her and her husband.

This launched a barrage of court filings by the Father, attacking, among other things,

the validity of the underlying paternity judgment and parenting plan. The Father further

filed a counterpetition for paternity and for related relief. In sum, the trial court ultimately

vacated its 2013 final judgment of paternity and parenting plan as void ab initio and

proceeded on the Father's counterpetition. While the vacation of the final judgment of

paternity and parenting plan rendered the Mother's relocation petition moot, the court

approached the final hearing as if the Mother was advocating for a long-distance

parenting plan and analyzed the relocation factors in its final judgment.

-2- The trial court conducted a bench trial on the Father's counterpetition for

paternity and for related relief. Both the Father and the Mother submitted proposed

parenting plans and written closing arguments. In 2017, the trial court entered a new

Final Judgment of Paternity and Parenting Plan, ordering shared parental responsibility

of the child in Hillsborough County, where the child had lived his entire life.1

Furthermore, and germane to the sole issue we decide in this appeal, the trial court

ordered that the Mother: (1) pay $97 per month to the Father in child support; (2)

reimburse the Father $1400 for overpayments of past child support; and (3) pay $582 in

retroactive child support.

In its order, the trial court neglects to set forth the parties' respective

incomes. The only, albeit tangential, reference to the Mother's income is that she is not

working and relies on the income of her husband to support her and the child. The trial

court notes, though, that the Father is self-employed and grosses between $8000 and

$11000 per month, $2000 of which is reinvested in his business. As for the $97 per

month child support award to the Father, the trial court references that this amount was

"pursuant to the child support guidelines worksheet that will be filed under separate

cover." But no such worksheet was filed by the trial court. As for the retroactive child

support award to the Father and the Father's overpayments owed by the Mother, the

trial court's order does not set forth how these amounts were derived.

Section 61.30, Florida Statutes (2017), provides guidelines establishing

the amount of child support to be awarded based on the parties' combined net monthly

1TheMother agreed to remain in Hillsborough County if the court rejected her proposed long-distance parenting plan.

-3- incomes. The legislature has made clear that the child support guidelines amount

"presumptively establishes the amount the trier of fact shall order as child support in an

initial proceeding for such support or in a proceeding for modification of an existing

order for such support" § 61.30(1)(a). This statute affords trial courts discretion to

deviate by more than five percent from a presumptive child support amount "only upon a

written finding explaining why ordering payment of such guideline amount would be

unjust or inappropriate." Id. In conformance with section 61.30, the case law is "well-

settled that a trial court errs by failing to make findings of fact regarding the parties'

incomes when determining child support." Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d

DCA 2010). "This is because findings regarding the parties' incomes are necessary for

a determination of whether the support ordered departed from the guidelines and, if so,

whether that departure was justified." Id. A trial court's failure to include factual findings

regarding the parties' incomes for purposes of child support calculations renders a final

judgment facially erroneous. Id.

Here, the trial court's order failed to include factual findings regarding the

parties' incomes for purposes of the child support judgment. The order makes no

findings as to the Mother's income or ability to pay. The trial court also did not file a

child support guidelines worksheet. See id. at 141 (reversing trial court's child support

order for its failure to set forth adequate factual findings and attach a child support

guidelines worksheet). Without these findings, we cannot conduct a meaningful

appellate review of the child support awards. Whittingham v. Whittingham, 67 So. 3d

239, 239 (Fla. 2d DCA 2010) (reversing child support order due to the court's failure to

include any findings regarding the parties' incomes because such failure precluded a

-4- determination as to whether the award was within the guidelines established in section

61.30).

Absent sufficient findings by the trial court, it is difficult to discern how the

trial court could order the unemployed Mother, who relies on her husband to support

both her and the child, to pay $97 per month to a Father who earns between $8000 and

$11000 in monthly income. Likewise, this absence of adequate factual findings renders

facially erroneous the trial court's order that the Mother reimburse the Father $1400 for

overpayments of past child support and pay $582 in retroactive child support. See

Wilcox, 35 So. 3d at 139. Although it appears that the trial court may have imputed

income to the Mother to derive these child support amounts, the trial court did so

"without making the required findings and without reference to the evidence that was, in

fact, presented." Pedersen v. Pedersen, 892 So. 2d 1125, 1126 (Fla. 2d DCA 2004)

(citing LaFlam v. LaFlam, 854 So. 2d 809, 810 (Fla. 2d DCA 2003)).

We therefore reverse the child support awards entered in favor of the

Father and remand to the trial court for further determination of any child support

amount. We affirm the trial court's Final Judgment of Paternity and Parenting Plan in all

other respects.2

Affirmed in part, reversed in part, remanded with instructions.

SILBERMAN and VILLANTI, JJ., Concur.

2Aftercareful review, we affirm without comment the remaining issues raised by the Mother in this appeal.

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