MARCUS BROWN vs MARY NORWOOD

• Court: District Court of Appeal of Florida
• Decided: August 5, 2022
• Docket: 21-0385
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

MARCUS BROWN,

Appellant,

v. Case No. 5D21-385 LT Case No. 2015-DR-1842

MARY NORWOOD,

Appellee.

________________________________/

Opinion filed August 5, 2022

Appeal from the Circuit Court for Orange County, Tanya Davis Wilson, Judge.

Eric Lee Bensen, of Greater Orlando Family Law, Winter Park, for Appellant.

Andrew B. Greenlee, of Andrew B. Greenlee, PA, Sanford, for Appellee.

HARRIS, J. Appellant, Marcus Brown (“Former Husband”), appeals the trial court’s

second amended final judgment of dissolution of marriage (“Second

Amended Judgment”), arguing in part that the court erred by incorrectly

calculating his net income and retroactive child support obligation, and by

awarding ongoing child support. We agree with Former Husband that the final

judgment contains mathematical errors with respect to his income and that it

was error to award ongoing child support. Therefore, we reverse on these

issues. Any other errors are unpreserved and do not appear on the face of

the judgment. Accordingly, we affirm on all other grounds.

The parties married in 2001 and share one child who reached the age

of majority before entry of the Second Amended Judgment. On September 4,

2018, following a trial, the trial court entered its original final judgment in this

matter, finding in part that the taxable income reflected on Former Husband’s

tax returns did not reflect his actual income. Based on this finding, the court

imputed the full amount of his business income, $13,564.07 per month, to

determine his gross monthly income for purposes of alimony and child

support. The court further awarded Appellee, Mary Norwood (“Former Wife”),

durational alimony in the amount of $1,000 per month as well as ongoing child

support, and evenly divided the marital property.

2 On appeal, we affirmed the trial court’s findings, including the finding

that the cost of goods sold should not be considered necessary business

expenses. See Brown v. Norwood, 291 So. 3d 1005 (Fla. 5th DCA 2020).

However, we reversed the award of alimony and child support, finding that

the trial court failed to consider ordinary and necessary business expenses

in determining Former Husband’s gross monthly income. We remanded the

case for the trial court to recalculate Former Husband’s income, including

deductions for ordinary and necessary business expenses.

On remand, the trial court entered an amended final judgment

recalculating Former Husband’s income, which resulted in a decrease in his

income from an average of $13,546.07 per month to $7,068.25 per month.

Both parties moved for rehearing and, following a hearing on the matter, the

court entered its Second Amended Judgment on November 30, 2020. It found

that Former Husband’s average monthly net income for 2014–2016 was

$5,948.64 and his average gross monthly income was $13,544. It again

awarded Former Wife durational alimony in the amount of $1,000 per month

and ordered Former Husband to pay ongoing child support in the amount of

$822.23 per month plus a monthly payment of $200 toward the accrued child

support arrearage. The Former Husband argues in the instant appeal that the

trial court has again failed to correctly calculate his income. We agree.

3 A trial court has broad discretion to do equity between the parties and

this Court reviews whether the dissolution judgment is supported by

competent evidence. Dawson v. Dawson, 948 So. 2d 1026 (Fla. 5th DCA

2007). Mathematical errors are reviewed de novo. Henry v. Henry, 191 So.

3d 995, 997 (Fla. 4th DCA 2016). Here, while Former Husband argues that

the trial court again failed to deduct the business expenses as listed in his

financial affidavits and that the trial court’s findings as to his personal income

are not supported by the evidence, he has failed to provide this Court with

transcripts of either the original trial or the hearing conducted before the entry

of the Second Amended Judgment. The court made findings regarding

business expenses pursuant to this Court’s mandate and indicated that it

included those business expenses that it found credible. Without a transcript

of the hearing, this Court cannot review the sufficiency of the evidence

regarding Former Husband’s claims as to the trial court’s decision to give only

partial credit to his claimed business expenses. See Van Epps v. Hartzell,

934 So. 2d 590, 592 (Fla. 5th DCA 2006).

However, there appear to be several mathematical errors on the face

of the judgment. First, for the 2014 income calculation, it appears the court

used the 2015 tax return business expenses, i.e., repairs and maintenance

plus other expenses, rather than the figures listed in the 2014 tax returns.

4 These figures should have been $35,050 plus $15,340, for a total of $50,390.

Thus, the taxable income total would have been $146,119 ($196,509 -

$50,390), rather than $149,939, as the court found.

The calculations for 2016 also contain mathematical errors. First, the

court again used the figures from the 2015 tax return for the

repairs/maintenance and other expenses ($28,785 and $17,785) rather than

the figures for these items contained in the 2016 tax returns ($23,708 and

$17,192). Next, the court made a subtraction error in subtracting $16,838

from $83,367, which should have been $66,529 rather than $80,610 as the

court calculated. Lastly, for all three years, it appears that the court deducted

social security, Medicare, union dues, and child support payments from the

net taxable income after applying the tax rate rather than deducting the

amounts from gross income to determine taxable income. This was error. See

§ 61.30(3), (4), Fla. Stat. (2020) (providing that net income is obtained by

subtracting allowable deductions from gross income, including child support,

federal insurance contributions, and mandatory union dues).

Former Husband also argues that there was no basis for an award of

retroactive child support because the court utilized an erroneous income

amount in calculating the retroactive support owed. We agree with Former

Husband that income calculations from 2014 to 2016 are erroneous, and

5 therefore, any retroactive child support owed should be modified according

to the correct calculations. See § 61.30(17)(a), Fla. Stat. (2020) (providing

that court shall consider obligor’s demonstrations of his actual income during

retroactive period in determining amount of retroactive child support award).

Accordingly, based on the court’s miscalculations, we reverse and remand

for the court to correct those mistakes that appear on the face of the

judgment and make the proper adjustments to retroactive child support. See

Larocka v. Larocka, 43 So. 3d 911, 913 (Fla. 5th DCA 2010) (“[D]espite the

lack of a transcript and an adequate record, when the error appears on the

face of the judgment, it should be corrected.”).

Finally, Former Husband argues that the parties’ child had reached the

age of majority at the time the court entered the Second Amended Judgment,

and therefore, the court erred in ordering ongoing child support. Former Wife

properly concedes that this was error, and we reverse on this issue. See

Carlton v. Carlton, 816 So. 2d 254, 256 (Fla. 2d DCA 2002) (recognizing that

absent finding of physical or mental deficiencies, there is no legal duty to pay

child support beyond age of eighteen).

We find no merit to the remaining issues raised on appeal by Former

Husband and affirm as to each. We reverse and remand with instructions for

the trial court to recalculate Former Husband’s income for the period

6 between 2014 and 2016, adjust the child support arrearage accordingly, and

to strike Former Husband’s obligation to pay ongoing child support for his

now adult child.

REVERSED and REMANDED, with instructions.

EDWARDS and WOZNIAK, JJ., concur.