Martin v. Martin

480 So. 2d 683, 11 Fla. L. Weekly 56
CourtDistrict Court of Appeal of Florida
DecidedDecember 26, 1985
Docket84-920
StatusPublished
Cited by4 cases

This text of 480 So. 2d 683 (Martin v. Martin) 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
Martin v. Martin, 480 So. 2d 683, 11 Fla. L. Weekly 56 (Fla. Ct. App. 1985).

Opinion

480 So.2d 683 (1985)

Charles Richard MARTIN, Appellant/Cross-Appellee,
v.
Judith Kay MARTIN, Appellee/Cross-Appellant.

No. 84-920.

District Court of Appeal of Florida, Fifth District.

December 26, 1985.

*684 Isham W. Adams and Garrett L. Briggs of Adams & Briggs, Daytona Beach, for appellant/cross-appellee.

Charles Tindell of Charles Tindell, P.A., Daytona Beach, for appellee/cross-appellant.

DAUKSCH, Judge.

The former husband appeals from an order modifying the child support provisions of a final judgment of dissolution of marriage. We reverse[1] because the evidence adduced below does not support an increase of appellant's obligation from $300 per month to $1,200 per month.

In her financial affidavit, the former wife listed the amounts she is required to spend on a regular basis for the benefit of the parties' child. Each month, the former wife spends $120 for the child's clothes, $100 for his recreation, $186 for his transportation, and $100 on incidentals; a total amount of $506 per month. Additionally, the court found in the final order that the parties' child should contribute $400 per month as his share of the mortgage payments on the house he occupies with his mother and stepfather. We know of no case law or logic which would require a child to pay a share of his mother's and stepparent's mortgage payments. Would the child build an equity of some sort in the property? Would the father, who really pays the "share," gain an equity? Would either of them enjoy a deductible mortgage interest expense?

The duty to support children of a dissolved marriage does not rest exclusively with the noncustodial parent. § 61.13(1), Fla. Stat. (1983); Condon v. Condon, 295 So.2d 681 (Fla. 1st DCA 1974). Both natural parents share this duty. Id. When providing for the support of minor children in dissolution proceedings, trial courts should impose support obligations in accordance with the circumstances of the parties and the equitable aspects of the case. § 61.13(1), Fla. Stat. (1983). The factors listed in Peak v. Peak, 411 So.2d 325 (Fla. 5th DCA 1982) are illustrative of this determination.

Although the evidence shows that the parties' child requires at most $506 per month, the court ordered appellant to pay $1,200 per month. The final order of modification indicates that the court arrived at this amount based upon its determination that such amount equals approximately 20% of appellant's "spendable" income. In Rook v. Rook, 469 So.2d 172 (Fla. 5th DCA 1985) (en banc), this court receded from any indication in Menendez v. Menendez, 435 So.2d 287 (Fla. 5th DCA 1983), review denied, 441 So.2d 632 (Fla. 1983) that we have adopted certain percentage guidelines which trial courts must follow when providing for child support in domestic relations cases. The income percentages referred to in Menendez should be considered only as another of the enumerated factors set out in Peak. In reversing, we note that our decision in Rook was not available to the trial court at the time it entered the order under review. We remand the case to the trial court for further proceedings and consideration in accordance with this opinion. Upon reconsideration the trial judge may reconsider the bases upon which the award was made, including the rental share. In addition, the court should closely examine the evidence in support of the $120 per month clothing expense, $100 per month "incidentals" and the transportation expense.

REVERSED and REMANDED.

THOMPSON, E.R., Associate Judge, concurs.

SHARP, J., dissents with opinion.

*685 SHARP, Judge, dissenting.

I dissent because although the appealed order increasing child support from $300.00 per month to $1,200.00 per month was on the generous side, it was well within the trial judge's discretion, based on the evidence in this case. Brown v. Brown, 472 So.2d 873 (Fla. 2d DCA 1985). The test is whether the trial judge abused his or her discretion; and whether no reasonable person could agree with the appealed order. Marcoux v. Marcoux, 464 So.2d 542 (Fla. 1985); Vandergriff v. Vandergriff, 456 So.2d 464 (Fla. 1984); Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980). Trial judges have very broad discretion in setting child support in Florida,[1] and it is as yet unfettered by guidelines. Rook v. Rook, 469 So.2d 172 (Fla. 5th DCA 1985). However, if the majority opinion in this case prevails, it could well be said to have established the per se outer limits of reasonableness for child support awards in this appellate district.

The trial court in this case took testimony for one day and considered numerous exhibits. It then wrote a well-considered opinion with fact findings, which are clearly supported by the record. I disagree with the majority opinion which remands this cause for "further consideration." This case was well tried and considered in the first instance.

The trial judge's order states, in part,

The Court finds, that the child is now 14 years of age, in good health, and is now living with the mother in Chicago, Illinois, where she lives with her present husband since August 1982. Richard is attending a private school which costs approximately $625.00 per month. His mother felt that since they live in downtown Chicago, that the public schools were overcrowded and not suitable for her son's education and therefore enrolled him in a private school. The Court finds, that the father of Richard is not required to provide funds to pay tuition for his son's education for a private school, nor is he required to pay for private tutoring ([Ternes v. Ternes, 58 App.Div.2d 763] 396 N.Y.S.2d 245 [(1977)] and [Flushing National Bank v. Municipal Assistance Corp., 40 N.Y.2d 1088] 392 N.Y.S.2d 392 [360 N.E.2d 1075 (1977)]). Although this Court could determine that it should be provided, Ault v. Ault, 8 FLW 137.
* * * * * *
The Court finds, that the father is entitled to have ten weeks summer vacation as stipulated to by the parties. That the father is to provide to his son facilities during this time, to make reasonable phone calls to his mother and maternal grandparents. That, the father is responsible to pay for the travel expenses for his son's visitation. The Court finds, that the father is not required to pay child support while his son visits with him during the summer months, but is required to pay child support during any other visits.
* * * * * *
She further seeks in her petition, the payment on back alimony payments, this request was withdrawn at the final hearing. She asked for an increase in the child support payments, which the Court finds she is entitled to. The testimony revealed that the petitioner was employed in her husband's business, and received a salary of $8,200 in 1983.
On September 27, 1974, the father agreed to pay $300.00 per month as child support in the property settlement agreement. He was making approximately $40,000.00 per year. The father later voluntarily increased this amount to $600.00 monthly, plus $50.00 allowance for his son since September, 1982. The respondent is a medical doctor specializing in radiology.
It appears that the father's income is as follows:
*686

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Bluebook (online)
480 So. 2d 683, 11 Fla. L. Weekly 56, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-martin-fladistctapp-1985.