Sol v. Sol

656 So. 2d 206, 1995 WL 316529
CourtDistrict Court of Appeal of Florida
DecidedJuly 12, 1995
Docket94-119, 93-2311
StatusPublished
Cited by13 cases

This text of 656 So. 2d 206 (Sol v. Sol) 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
Sol v. Sol, 656 So. 2d 206, 1995 WL 316529 (Fla. Ct. App. 1995).

Opinion

656 So.2d 206 (1995)

Guillermo SOL, Appellant/Cross-Appellee,
v.
Beverly W. SOL, Appellee/Cross-Appellant.

Nos. 94-119, 93-2311.

District Court of Appeal of Florida, Third District.

May 24, 1995.
As Amended on Denial of Rehearing July 12, 1995.

*207 Abrams, Abrams & Etter, and Ira Abrams and Jeannie Etter, Miami, for appellant/cross-appellee.

Deborah Marks and Evan R. Marks, North Miami, for appellee/cross-appellant.

Before SCHWARTZ, C.J., and NESBITT and COPE, JJ.

COPE, Judge.

Guillermo Sol appeals a final judgment modifying child support. We affirm in part and reverse in part.

On motion by the appellee former wife Beverly W. Sol, the trial court granted an upward modification in child support. The trial court found that both parties' incomes from employment had increased substantially. The appellant former husband does not quarrel with those findings.

In addition, however, the trial court made a finding that in the three years preceding the hearing on the petition for modification, the former husband had received substantial gifts from his parents. The trial court concluded such gifts were "income" to the former husband and added the figure of $20,000 per year ($1,666.66 per month) as anticipated income from family gifts. The gift income was then added to the net monthly income from employment to arrive at the former husband's total net monthly income for purposes of the child support guidelines found in section 61.30, Florida Statutes (1993). The former husband has appealed the inclusion of gift income for purposes of calculating his future child support amount. The former husband's point is well taken.

In this case the former husband received cash gifts from his parents from time to time. As a general rule, "[g]ifts which have not yet been received are purely speculative in nature, mere expectancies, and as such are not properly included in the calculation of income for purposes of determining the need for, or the ability to provide, support." Shiveley v. Shiveley, 635 So.2d 1021, 1022 (Fla. 1st DCA 1994) (citation omitted) (child support); cf. Bedell v. Bedell, 583 So.2d 1005, 1008 (Fla. 1991) ("For the purpose *208 of demonstrating need in dissolution or modification proceedings, the fact that one of the parties is surviving through the largess of her family is legally irrelevant."); Bob v. Bob, 310 So.2d 328, 330 (Fla. 3d DCA 1975) (gifts received during marriage disregarded for purposes of establishing standard of living to be met through alimony award).[1] In the present case the evidence showed large sporadic cash gifts to the former husband by the parents, which varied in frequency and amount over the preceding several years. Under the authority just cited, we conclude that the imputation of future gift income for purposes of setting the new child support level under the child support guidelines was impermissible. We therefore reverse the order under review and remand with directions to recalculate the child support amount.

As to the former husband's second point on appeal, there was no abuse of discretion by the trial court in ordering the revised child support amount to be effective as of the date of filing the petition for modification. Further, the trial court's award of an additional sum for child care is supported by substantial competent evidence.

The former husband also contends that the attorney's fee judgment must be reversed and remanded for recalculation. This point is also well taken.

The trial court ordered the former husband to pay 65 percent of the former wife's attorney's fee. In reaching that determination, the trial court used as a beginning point the parties' net income figures as calculated for child support purposes.[2] The trial court included the imputed gift income amount as one element of the former husband's income. Since the effect is to overstate the former husband's income, the attorney's fee calculation should be revisited on remand. The former husband does not challenge the former wife's entitlement, but requests recalculation of the amount.

The former wife has cross-appealed, asserting that despite only a moderate difference in income, the former husband should be required to pay all of her attorney's fees.[3] She relies on Gomez v. Gomez, 642 So.2d 107 (Fla. 3d DCA 1994), which states that "it is well established in dissolution cases that attorneys' fees and costs are to be borne by the party who has the superior or greater financial ability to pay." Id. at 108 (citations omitted). The former wife reads "superior or greater financial ability to pay" to mean that if one spouse has a higher income, even if the income is only slightly higher than the other, the "higher income" spouse must invariably pay the entirety of the "lower income" spouse's attorney's fee. In essence the former wife reads Gomez as outlawing percentage awards of attorney's fees. We disagree with the former wife's interpretation. Gomez cannot be read in isolation, but must be read in the context of the other cases treating the issue.

In Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980), the court said:

[T]he purpose of section 61.16, Florida Statutes, was to ensure that both parties will have similar ability to secure competent legal counsel. Without question, the financial positions of the parties in this proceeding are not the same. The husband has a superior financial ability to secure and pay counsel. It is not necessary that one spouse be completely unable to pay attorney's fees in order for the trial *209 court to require the other spouse to pay these fees. Given the complexity of the cause and the time necessary to appropriately resolve the issues, the award of attorney's fees in this case was proper to avoid an inequitable diminution of the fiscal sums granted the wife in these proceedings.

382 So.2d at 1205 (emphasis added). In Canakaris there was a very substantial disparity between the husband's income of $147,000 per year and the wife's income of $1,000 per year, and an equally lopsided disparity in net worth. Id. at 1199. In that case it was appropriate to require the former husband to pay all of the former wife's attorney's fees in order to avoid an unfair invasion of the other awards the former wife was granted in the dissolution proceedings.

In Nisbeth v. Nisbeth, 568 So.2d 461 (Fla. 3d DCA 1990), this court explained:

In applying section 61.16 and Canakaris to an award of attorney's fees in divorce cases, this court has stated that when the award of alimony and the equitable distribution of assets leave the parties with substantially equal resources and when the wife's portion is liquid enough to enable her to pay her own attorney's fees and costs, the wife is not entitled to have those fees paid by the husband. However, earning capacity is a financial resource which the court can and should consider when determining overall financial circumstances and a party's ability to pay attorney's fees. In this case there is a clear difference in the parties' earning capacities which results in a significant disparity in the parties' overall financial circumstances. Thus, even though the assets were equally divided, the parties were not left with substantially equal resources because, as the wife points out, the husband's current salary, as well as his projected salary based on his long term record of income production and earning ability, is substantially superior to the wife's.

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Cite This Page — Counsel Stack

Bluebook (online)
656 So. 2d 206, 1995 WL 316529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sol-v-sol-fladistctapp-1995.