Martinez v. Rodriguez

927 So. 2d 93, 2006 Fla. App. LEXIS 5361, 2006 WL 931941
District Court of Appeal of Florida·Decided April 12, 2006·No. Nos. 3D04-1560, 3D04-662·Published·Cited by 1 cases

Opinion

CORRECTED OPINION

ROTHENBERG, Judge.

Upon the court’s own motion, we withdraw our previously issued opinion, filed on March 15, 2006, and substitute the following opinion.

In this consolidated appeal, Luis G. Martinez (Father) appeals an order denying his motions (1) to vacate a final judgment on attorney’s fees and costs and (2) to vacate an order adopting the hearing officer’s recommendation recalculating child support. We affirm.

In 1999, a Final Judgment of Paternity was issued, setting forth child support obligations which were agreed upon by the Father and Silvia M. Rodriguez, the mother (Mother). In 2002, the Mother filed a petition for modification of child support and a motion for contempt, enforcement, and other relief, and the trial court referred the matter to a hearing officer. Based on the testimony and documents she reviewed, the hearing officer prepared a report recommending that the total minimum child support needed for the child was $1,453.00 per month and that the Father should be responsible for 81% of that amount, equaling $1,160.48. She found that the cost of attending private school was $600.00 per month, that this expense was a component of child support, and that the Father was also responsible for 81% of this expense, equaling $468.00, making the Father’s total child support obligation $1,646.48 a month. She found that the Father’s corporation made health insurance available to the Father and daughter at no cost to the Father, and that the Mother had incurred $18,450.00 in attorney’s fees and $5,157.18 in costs.

The trial court ratified and approved the hearing officer’s report in an order dated October 8, 2003, and on October 20, 2003, the Father filed his first motion to vacate. In the Father’s first motion to vacate, he argued that (1) the hearing officer erred by failing to credit the father for the support he was providing to his other child and his wife; (2) the hearing officer erred by failing to credit the Father for the medical insurance paid by him for the child; (3) the hearing officer lacked jurisdiction to award attorney’s fees; and (4) the amount attributed by the hearing officer for the cost of private school is unsupported by the evidence. On December 2, 2003, the trial court entered an order on the Father’s motion to vacate, which sustained the father’s objection to the hearing officer’s failure to credit the Father for the support that he provided to his other child, and remanded to the hearing officer to recalculate child support by deducting $457.00 per month from the Father’s gross income. The trial court denied the Father’s other objections.

Having denied the Father’s objection that the hearing officer lacked jurisdiction to award attorney’s fees, the trial court entered a “Final Judgment on Attorney’s Fees and Costs” on February 13, 2004.

On March 12, 2004, the Father filed a second motion to vacate, arguing as he did in his first motion to vacate, that the hearing officer lacked jurisdiction to hear the matter of attorney’s fees and costs absent his consent. On March 18, 2004, the trial court denied this motion, and this is the first order under appeal.

In accordance with the trial court’s remand, the hearing officer conducted a hearing and recalculated the Father’s support obligation, taking into consideration the support he was providing for another child, and on February 27, 2004, the hearing officer entered a report recommending [95] that the Father pay $1,555.69 per month in child support. On March 2, 2004, the trial court ratified and approved the hearing officer’s report and entered an order regarding the Father’s support obligations.

Thereafter the Father filed another motion to vacate, which we will identify as his third motion to vacate. This motion is not contained in the record, but it is referred to by the trial court in its June 2, 2004 order denying the motion. The trial judge refers to this motion as a “Motion to Vacate ‘Order Upon Recommended Order of Hearing Officer Recalculating Father’s Child Support Obligation.’ ” The June 2, 2004 order denying this motion is the second order under appeal. The sole issue raised in this order is the constitutionality of Rule 12.491 of the Florida Family Law Rules of Procedure, which does not provide for a mechanism for a party to object to a referral to a hearing officer regarding child support matters.

In the brief filed by the Father in these two consolidated appeals, he raises four grounds. Only one of the issues argued in the brief, however, relates to the orders under appeal and therefore is the only issue properly before us. The four arguments raised in the Father’s brief are as follows:

I. THE TRIAL COURT ERRED IN FINDING THAT THE FATHER WAS RESPONSIBLE FOR 100% OF THE CHILD’S HEALTH INSURANCE COSTS WHERE FLORIDA STATUTES AND LAW DICTATE THAT THE COST MUST BE APPORTIONED BETWEEN THE PARENTS.
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHERE IT MADE THE FATHER PAY FOR ADDITIONAL COSTS ASSOCIATED WITH ATTENDING PRIVATE SCHOOL AND DID NOT MAKE A WRITTEN FINDING CONSISTENT WITH FLA. STAT. § 61.30.
III. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO GIVE A WRITTEN EXPLANATION AS TO WHY THE FATHER’S CHILD SUPPORT OBLIGATION VARIED BY MORE THAN 5% FROM THE GUIDELINE AMOUNT.
IV. THE HEARING OFFICER DID NOT HAVE THE JURISDICTION TO AWARD ATTORNEY’S FEES WHERE THE FATHER DID NOT CONSENT TO HER DOING SO.

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Martinez v. Rodriguez, 927 So. 2d 93, 2006 Fla. App. LEXIS 5361, 2006 WL 931941 (Fla. Ct. App. 2006).

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