ABSTRACT:
- There is a presumption that a Court should order child support in accordance with the Child Support Guidelines calculations as described in the Florida Statue 61.30. However, the Guideline Presumption is rebuttable. (Examples, 20% rule, special needs, child, etc.)
- Child Support Guidelines can be deviated from when the guidelines exceed the needs of the child.
- “Good Fortune” support is a valid reason for deviation
Case Law
- Finley
Facts
- “Scott's gross monthly income was approximately $ 266,926… the trial court found that it must consider not only the child support guideline amount, but must also consider the actual and bona fide needs of the minor child and the overall financial circumstances of each parent. During this determination of temporary child support, [the mother] introduced an affidavit establishing total monthly living expenses of $ 2128 for herself, the minor child of Scott, and another daughter whose father was not Scott.”
- “In September 1994, Scott filed a petition in the probate division of the Ninth Judicial Circuit in Orange County for the appointment of a guardian of the property of his minor child.” [the Mother was wasting the child support]
- “The trial court found that [the mother's] request of approximately $ 10,000 per month in direct child support had no economic relevance to the bona fide actual needs of the child.
- “The Fifth District considered the case en banc. The en banc majority held that the trial court erred in awarding child support in the amount of $ 5000 per month when it found that only $ 2000 was required to meet the day-to-day living requirements of the child.”
Holding
- The Supreme Court followed Judge Goshorn’s Dissent which stated, “the trial court correctly determined that it was not bound to mathematically apply the guideline amount; rather, it properly concluded that paragraph 61.30(1)(a) could be applied to situations such as this where the guideline amount would yield an unintended and unreasonable result”
- “We find that the schedule for determining the amount of child support, presumed to be the amount a trial judge awards under section 61.30(6), is clearly rebuttable”
- “Our reading of the trial court's final judgment is that the trial court adhered to the statute. We do not agree with the district court majority that the trial court's order is an arbitrary "judicial compromise." Rather, we believe that the trial court properly exercised its discretion”
- “We conclude that the trial judge acted within his authority in this case in ordering that the portion of the money not needed for the child's immediate custodial maintenance be paid to the legally appointed guardian of the child's property.”
- Ferraro
Facts
- “Father agreed to pay child support of $ 12,000 per month directly to the Mother. Thereafter, the Mother petitioned the court for an upward modification of this amount”
- “the general magistrate found that the children's needs were being met by the $ 12,000 the Father was paying directly to the Mother, as well as the additional indirect payments of at least $ 16,770.”
Holding
- Enough is enough
SUBSEQUENT HISTORY: [**1] As Corrected March 9, 1998. Rehearing Denied April 7, 1998. Released for Publication April 7, 1998.
PRIOR HISTORY: Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fifth District - Case No. 95-308 (Orange County).
OPINION
[*1113] CORRECTED OPINION
WELLS, J.
We have [**2] for review Finley v. Scott, 687 So. 2d 338 (Fla. 5th DCA 1997), which expressly and directly conflicts with the opinion in Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
This is a paternity action brought in the circuit court of Orange County by Finley, the mother of a child born February 20, 1993. The complaint sought determination that Scott was the biological father of the child and also sought support for the child pursuant to section 61.30, Florida Statutes (1993).
By order dated January 25, 1994, the trial court adjudicated Scott to be the child's biological father and ordered temporary child [*1114] support in the amount of $ 5000 per month. The trial court's order states that the amount of temporary child support is less than the amount dictated by the child support guidelines imposed by section 61.30(6), Florida Statutes (1993), which would have required child support exceeding $ 10,000 per month because Scott's gross monthly income was approximately $ 266,926. 1 In entering an award of temporary child support, the trial court found that it must consider not only the child support guideline amount, but must also [**3] consider the actual and bona fide needs of the minor child and the overall financial circumstances of each parent. During this determination of temporary child support, Finley had introduced an affidavit establishing total monthly living expenses of $ 2128 for herself, the minor child of Scott, and another daughter whose father was not Scott.
FOOTNOTES
1 Section 61.30(6), Florida Statutes (1993), provides a schedule for computing minimum child support need based on income and number of children. The subsection also provides in relevant part:
For combined monthly available income greater than the amount set out in the above schedules, the obligation shall be the minimum amount of support provided by the guidelines plus the following percentages multiplied by the amount of income over $ 10,000.
The chart provided in the subsection specifies that the obligation for one child shall be an additional five percent of the amount of income over $ 10,000.
In September 1994, Scott filed a petition in the probate division of the [**4] Ninth Judicial Circuit in Orange County for the appointment of a guardian of the property of his minor child. Margaret Quarantello, an experienced private guardian of property, was proposed as the guardian of the property. At a hearing held before a judge of the probate division, evidence was presented as to the payment by Scott and use by Finley of the temporary monthly child support payments. The judge found at the end of the hearing that the ordered amount had not been expended for the benefit of the child and that Scott had paid a total of $ 12,000 above what was needed for the child. The judge declined to honor the preference of the mother in the appointment of the guardian because of "the already-apparent application of a large percentage of the minor's funds to [Finley's] own use and needs." Transcript of Guardianship Hearing at 40, Finley v. Scott, No. PR94-1872 (Fla. 9th Circ. Ct., Nov. 16, 1994). The judge appointed Quarantello to be the guardian of the property of the minor child.
A final hearing in the paternity action was held in December 1994. During this hearing, the trial court considered testimony of the attorney who represented Scott in the guardianship estate [**5] for the minor child. The trial court also considered the transcript of the record from the hearing in which the probate division judge appointed the guardian. Additionally, the trial court considered evidence as to the monthly incomes of Finley and Scott and the expenditure of temporary support payments which Scott had made to Finley.
In a paternity judgment dated December 30, 1994, the trial court entered a final adjudication that Scott was the biological father. The trial court awarded primary residential custody and responsibility to Finley, subject to shared parental responsibility. The trial court found that Finley had made misrepresentations to the court concerning financial information and had refused to properly account for the $ 50,000 of temporary child support that Scott had paid to her.
The trial court found that Finley's request of approximately $ 10,000 per month in direct child support had no economic relevance to the bona fide actual needs of the child. The trial court found that this Court recently stressed in Miller v. Schou, 616 So. 2d 436 (Fla. 1993), that "[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate [**6] lifestyle." Id. at 439. The trial court found, based upon section 61.30(1)(a), Florida Statutes (1993), that a court may order a variance of more than five percent from the child support guideline upon a written finding as to why the payments of the guideline amount would be unjust or inappropriate. The trial court stated that it declined to impose the guideline amount suggested by Finley in the amount of $ 10,011 but rather awarded the sum of $ 5000 per month because it found that this amount of support was "consistent with the actual [*1115] and bona fide needs of the minor child and the overall financial circumstances of each parent and will therefore foster and promote an appropriate lifestyle for her." Final Judgment of Paternity at 14, Finley v. Scott, No. DR93-10246 (Fla. 9th Circ. Ct., Dec. 30, 1994). The trial court further found that $ 5000 per month "achieves a more equitable result" pursuant to section 61.30(11)(k), Florida Statutes (1993). Id. at 16.
The trial court ordered Scott to pay $ 2000 per month directly to Finley and $ 3000 per month to Quarantello, as guardian of the property of the minor child. The court ordered Scott to pay the child support commencing [**7] January 1, 1995, "until the minor child attains the age of eighteen years, dies, marries, joins the military service, comes to permanently reside with [Scott] under an order modifying residential custody, until the death of [Scott], or until further order of Court." Id. at 17.
Finley appealed the final judgment, arguing that the trial court should have awarded the full guideline amount, $ 10,011, and that the trial court had no authority to require any of the support payment to be paid into a guardianship trust. Scott cross-appealed, arguing that the $ 3000 per month ordered to be paid to the guardian of the property was an abuse of discretion in that the $ 3000 was in excess of the child's actual needs.
The Fifth District considered the case en banc. The en banc majority held that the trial court erred in awarding child support in the amount of $ 5000 per month when it found that only $ 2000 was required to meet the day-to-day living requirements of the child. Finley v. Scott, 687 So. 2d 338, 342 (Fla. 5th DCA 1997). The majority concluded that the trial court erred in ordering an additional "good fortune award" of $ 3000 to be paid to the guardian. Id. at 340. The [**8] majority stated that the trial court's judgment in this regard was probably influenced by Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995), and by dictum in Schou. 2 687 So. 2d at 340. The Fifth District majority acknowledged an apparent conflict with Boyt and stated its disagreement with the Second District's interpretation of Schou as allowing good-fortune awards. Id. The majority below then reversed and remanded "for further action consistent with this opinion." Id. at 344. We interpret this to mean that the district court majority directed the trial court to enter a judgment in which the support amount to be paid to Finley is $ 2000.
FOOTNOTES
2 In Boyt, the Second District approved the award of child support in excess of the child's actual needs and also approved the payment of the excess funds into a trust for the child, with the court entering the child support order having jurisdiction to supervise the trust. Boyt, 664 So. 2d at 996. In Schou, this Court noted that "the determination of 'need' in awarding child support takes into account more than just the basic necessities of survival. The child of a multimillionaire would be entitled to share in that standard of living . . . and would accordingly be entitled to a greater award of child support . . . ." Schou, 616 So. 2d at 438 (citation omitted).
[**9] In the district court, Judges Sharp, Goshorn, and Griffin each wrote dissenting opinions disagreeing with the majority's characterization of the issues, the majority's analysis, and the majority's decision to reverse. Regarding the appropriate amount of child support, Judge Goshorn wrote:
In the present case, I find that the trial court correctly determined that it was not bound to mathematically apply the guideline amount; rather, it properly concluded that paragraph 61.30(1)(a) could be applied to situations such as this where the guideline amount would yield an unintended and unreasonable result. See also § 61.30(11)(k), Fla. Stat. (1993) (stating that "the court may adjust the minimum child support award . . . to achieve an equitable result . . . ").
Finley, 687 So. 2d at 348. We agree with Judge Goshorn's opinion endorsing a support amount of $ 5000, the amount awarded by the trial court.
As the trial court's final judgment recognized, the correct analysis of the amount of child support appropriate in this case begins with HN1 section 61.30(1)(a), Florida Statutes (1993), which provides:
The child support guideline amount as determined by this section presumptively [**10] 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, whether the proceeding arises under [*1116] this or another chapter. The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.
This section is followed by section 61.30(6), Florida Statutes (1993), which provides a schedule to be applied in determining the minimum child support need according to combined income and number of children.
We find that HN2the schedule for determining the amount of child support, presumed to be the amount a trial judge awards under section 61.30(6), is clearly rebuttable. 3 The trial court is given the specific authority to order payment of child support which varies more than five percent from the schedule upon a written finding or specific [**11] finding on the record explaining why ordering payment of such guideline amount would be unjust or inappropriate. § 61.30(1)(a), Fla. Stat. (1993). Furthermore, in determining child support, the trial court is to consider section 61.30(11)(k), Florida Statutes (1993), which allows for an equitable adjustment of the minimum child support obligation based upon the facts and circumstances of a particular case.
FOOTNOTES
3 Section 61.30, Florida Statutes (1993), creating rebuttable child support guidelines, is in conformity with 45 C.F.R. § 302.56(f) (1993), which is the federal administrative rule adopted pursuant to the Family Support Act of 1988, 42 U.S.C. § 667 (1994).
Our reading of the trial court's final judgment is that the trial court adhered to the statute. We do not agree with the district court majority that the trial court's order is an arbitrary "judicial compromise." Rather, we believe that the trial court properly exercised its discretion in finding:
In this case, this Court specifically declines to impose [**12] the guideline amount suggested by Petitioner in the sum of $ 10,011 but will rather award the sum of $ 5,000 per month as child support because this Court finds that the same is consistent with the actual and bona fide needs of the minor child and the overall financial circumstances of each parent and will therefore foster and promote an appropriate lifestyle for her.
Final Judgment of Paternity at 13-14. Consideration of both the bona fide needs of the child and the financial circumstances of each parent complies with section 61.30, Florida Statutes (1993), and with our decision in Schou. We reject the district court's majority view that consideration of parental financial resources conflicts with the statutory guidelines and with our decision in Schou.
Likewise, we reject Finley's argument that the trial court erred in varying from the guideline amount based on this record. As earlier noted, the statutory guidelines expressly contemplate the exercise of judicial discretion and authority by allowing modification of guideline amounts found to be unjust or inappropriate. The actual expenditure for the needs of the child is evidence the trial court should weigh in determining [**13] whether to vary the amount from the guideline formula. We note that the legislature amended section 61.30(1)(a) in 1994 by adding a phrase:
The trier of fact, after considering all relevant factors including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, may order payment of child support which varies, plus or minus 5 percent, from the guideline amount. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.
Ch. 94-204 § 2, at 1173, Laws of Fla. (underscoring indicates additions). Although the 1993 statute applies to this case, we accept the addition of this sentence to the statute as clarifying legislative intent that the trial court's decision as to a variant amount is to be based on these factors now listed in section 61.30(1)(a). See Parole Comm'n v. Cooper, 701 So. 2d 543 (Fla. 1997) (recognizing [*1117] propriety of considering subsequent amendment to a statute [**14] in interpreting prior statute if amendment was enacted soon after controversy arose); Lowry v. Parole & Probation Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985).
We recognize that decisions as to whether and how much to vary child support awards from amounts dictated by the statutory guideline formula are fact-intensive decisions that depend upon the record in each case. Our analysis concurs with Judge Sharp's well-reasoned dissent, which indicates why the problem in this case begins with the fact-intensive nature of deciding the appropriate amount of child support. Judge Sharp stated:
While I concur with Judge Goshorn's opinion in this case, I appreciate the paradox of requiring a parent to overpay "needs and expenses" for a child, as Judge Harris points out in his majority opinion. The difficulty is in part semantical, and in part practical. The crux of the difficulty is settling on whose standard of living determines the "needs" of this child.
In this case, the mother is raising the child on a much lower standard of living than would be established by the father, if the child were living at his current lifestyle [as a professional athlete] of $ 266,926.00 gross income per [**15] month. He could well afford, for example, a full time nanny, housekeepers, international travel, residence in a mansion with high attendant expenses, and transportation in expensive automobiles--a portion of which could be allocated to this child. These expenses could easily equate to the $ 5,000.00 per month found appropriate by the trial court.
However, the mother is not able, in this case, to live at that standard of living. She must provide for herself and her other two children. They cannot benefit from the child support paid for this child, although the mother tried to do so, and has been properly reprimanded by the trial court for that effort. At her standard of living, the trial court found that only $ 2,000.00 was actually being spent on this child. However, if the father's child support obligations are limited to this level, the child will not share in her father's much higher standard of living and lifestyle. Clearly the "needs" of this child should not be solely based on what the mother can afford to spend on her, consistent with the mother's much lower standard of living. That also would be inequitable.
Finley, 687 So. 2d at 345 (W. Sharp., J., dissenting).
[**16] To assist trial courts in making this fact-intensive decision in future cases, we expressly point out that HN3a trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the child support amount should vary plus or minus five percent from the guideline amount, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court's determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.
We next consider whether the trial judge was authorized to require a part of the money to be paid to the legal guardian of the child's property. [**17] We conclude that the trial judge acted within his authority in this case in ordering that the portion of the money not needed for the child's immediate custodial maintenance be paid to the legally appointed guardian of the child's property.
This case differs from Boyt, in which the trial court ordered excess child support payments to be held in a trust account by a guardian ad litem. We believe the appropriate procedure is the one used in the present case and not the procedure used in Boyt. In this case, a probate court decision after guardianship proceedings determined that the child's property required a legal guardianship. Once the probate court determined a need for a guardianship of the property, [*1118] then the trial court in the support proceeding could use the guardian to protect the portion of the child support payment that the trial court determined pursuant to section 61.30 was not needed for the child's day-to-day custodial expenses. Through the guardianship, the probate court could exercise judicial supervision of this portion of the funds.
However, the appointment of a legal guardian of the property of a child represents a crucial distinction between this case and [**18] Boyt. Our conclusion is that HN4only when the necessity for a legal guardianship of the property has been proven and a legal guardian appointed by the probate court in accordance with chapter 744, Florida Statutes (1997), 4 can the trial court use a guardian to protect the minor's assets. The trial court is not to order any portion of the child support paid into a trust unless a legal guardian has been appointed, and we disapprove Boyt to the extent that it authorizes continuing supervision of the child support award by the court that determined the child support amount or the payment into a guardianship trust to be supervised other than through the probate court.
FOOTNOTES
4 A legal guardian of the property appointed in another state in accord with the guardianship of that state may also be used.
In this case, the probate court has made a specific finding requiring a court-appointed guardian of the property of the child because the child's custodial parent did not use temporary support payments totally for the [**19] benefit of the child. Now the probate court will supervise, through the guardian, the use of the money not required for the child's immediate custodial needs. We find this to be the correct procedure for this case.
Accordingly, we quash the decision of the district court and remand with directions to affirm the trial court's final judgment of paternity.
It is so ordered.
CONCUR BY: ANSTEAD
ANSTEAD, J., specially concurring.
I write separately only to emphasize the controlling principles first clearly articulated by Justice Grimes, in Miller v. Schou, 616 So. 2d 436 (Fla. 1993):
As a practical matter, it is impossible to believe that any court would award the same amount of child support where the paying parent is a multimillionaire as it would where the paying parent makes a modest living. While technically the child's basic survival needs would be the same in each case, the determination of "need" in awarding child support takes into account more than just the basic necessities of survival. See Smith v. Smith, 474 So. 2d 1212, 1213 ("The child's residence with his mother does not mean that the father must do no more than provide a survival level of support."). The child of a [**20] multimillionaire would be entitled to share in that standard of living--for example to attend private school or to participate in expensive extracurricular activities--and would accordingly be entitled to a greater award of child support to provide for these items, even though provision for such items would not be ordered in a different case.
Of course, we do not mean to imply that the child of a multimillionaire should be awarded enough support to be driven to school each day in a chauffeured limousine. The point of financial disclosure is not to ensure that the child of a wealthy parent will own a Rolls Royce, but rather to ensure that the trial court will have enough information to allow it to make an informed decision as to the extent of the parent's good fortune and the corresponding extent of the child's right to share in that good fortune. The child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle. We believe that Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases and will not, as Schou argues, create a class of children who are unduly pampered in the name [**21] of [*1119] sharing in the noncustodial parent's good fortune.
SUBSEQUENT HISTORY: Rehearing denied by, En banc Ferraro v. Ferraro, 2008 Fla. App. LEXIS 1386 (Fla. Dist. Ct. App. 3d Dist., Jan. 8, 2008)
Review denied by Ferraro v. Ferraro, 2008 Fla. LEXIS 1898 (Fla., Sept. 17, 2008)
PRIOR HISTORY: [**1]
An Appeal from the Circuit Court for Miami-Dade County, Maynard A. Gross, Judge. Lower Tribunal No. 96-25434.
Available Briefs and Other Documents Related to this Case:
FL Court of Appeal Brief(s)
COUNSEL: Kohlman Hernandez and Robert F. Kohlman ; and Greene Smith & Associates, and Cynthia L. Greene , for appellant.
Dino G. Galardi , for appellee.
JUDGES: Before GERSTEN , C.J., and GREEN , and RAMIREZ , JJ. GERSTEN , C.J. and GREEN , J., concur. RAMIREZ , J. (dissenting).
OPINION
[*827] PER CURIAM.
Diane D. Ferraro, n/k/a Diane Deighton (the Mother), appeals from an order denying her petition to modify child support. We affirm.
The parties have three children. When their marriage was dissolved, the court ordered James L. Ferraro (the Father) to pay child support. In the parties' most recent child support modification agreement, the Father agreed to pay child support of $ 12,000 per month directly to the Mother. Thereafter, the Mother petitioned the court for an upward modification of this amount.
The Mother's petition was referred to a general magistrate who held a two-day trial. The general magistrate found that since the previous modification agreement, the Father has consistently and continuously paid the Mother the $ 12,000 per month in direct child support.
In addition, the Father has paid for medical, health, [**2] and dental insurance costs, one half of all medical, health, and dental expenses over $ 3,000 per year, and all private school tuition, fees, books, and tutoring costs for all three children. The general magistrate also found that the Father is paying all expenses, including tuition, fees, books, room and board, and incidentals for the parties' oldest son who is away at college.
The trial court requested the general magistrate to provide more specific findings. The general magistrate further found that the parties' middle child is currently in a full-time residential facility for which the Father is paying. Additionally, the Father is paying the oldest child's automotive expenses of approximately $ 1,500 per month, as well as the cell phone bills for all three children. The Father also pays for all expenses on the former marital residence where the Mother and the youngest child reside.
The general magistrate also recognized that a strict mathematical application of the child support guidelines obligates the Father to approximately $ 44,680 per month in child support. However, the general magistrate again recommended denial of the Mother's motion to modify the child support.
The trial [**3] court carefully considered the evidence in the case and the general magistrate's findings and conclusion. It agreed with the general magistrate's recommendation that the circumstances warranted deviating from the guidelines. See § 61.30(1)(a), Fla. Stat. (2002) (stating that HN1a trier of fact may order child support which [*828] varies from the guideline amount where the guideline amount would be unjust or inappropriate); Finley v. Scott, 707 So. 2d 1112, 1116 (Fla. 1998) (affirming that HN2the actual expenditures for the needs of the child should be weighed in determining whether to vary the guideline amount).
In Miller v. Schou, 616 So. 2d 436, 438 (Fla. 1993), HN3the Florida Supreme Court held that an increase in ability to pay is itself sufficient to warrant an increase in child support. However, the Court recognized that "[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle," and "Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases." Miller, 616 So. 2d at 439; see also Taylor v. Taylor, 734 So. 2d 473 (Fla. 4th DCA 1999) (denying modification where the court found that [**4] the children, even considering the substantial wealth of their father, lacked nothing).
Here, the general magistrate found that the children's needs were being met by the $ 12,000 the Father was paying directly to the Mother, as well as the additional indirect payments of at least $ 16,770. This finding was supported by competent substantial evidence. HN4Where a general magistrate is appointed to make factual determinations, the trial court is bound by such determinations provided they are supported by competent substantial evidence which are not clearly erroneous. Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d DCA 2006).
Accordingly, we affirm the order denying a modification of child support under the overwhelming circumstances in this case.
Affirmed.
GERSTEN, C.J. and GREEN, J., concur.
DISSENT BY: RAMIREZ
RAMIREZ, J. (dissenting).
I respectfully disagree with the majority's affirmance in this case under the authority of Miller v. Schou, 616 So. 2d 436 (Fla. 1993). The Miller case, in fact, would support a reversal.
The mother appealed the trial court's denial of her exceptions to the report and recommendations of the hearing officer because the hearing officer's conclusions were legally erroneous. [**5] In particular, she alleges as error the fact that the hearing officer's report stated that "the mother has not met her burden of proof to support an upward modification of child support. The children's needs are being fully met . . . ." As Miller makes clear, the hearing officer is simply wrong as a matter of law. Miller states, "a substantial change in the paying parent's income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need." Id. at 437. The mother presented overwhelming evidence that the father's income had increased substantially.
The father had been paying $ 12,000 per month in child support. The hearing officer found that the presumptive child support amount to be awarded pursuant to the child support guidelines was $ 23,483 per month for one child; $ 35,294 for two children; and $ 44,680 for three children. Under section 61.30(1)(b), of the Florida Statutes, the guidelines establish a substantial change in circumstances upon which a modification may be granted if the difference between the existing monthly obligation and the amount provided for under the guidelines is at least fifteen [**6] percent. Because the father is paying less than twenty-seven percent of the guidelines' presumptive child support, I believe the mother sustained her burden of proving a substantial change.
[*829] The evidence presented at the hearing overwhelmingly confirmed a substantial change in the father's income. The parties settled upon an initial amount of child support in a 1995 agreement whereby the father would pay $ 6,500 per month, an amount not computed in accordance with the guidelines. Thereafter, the parties agreed to increase the child support to $ 10,000 per month and later, in the year 2000, the parties agreed to a further increase to $ 12,000 per month. None of these modifications were computed based upon any form of financial disclosure or upon the child support guidelines.
In 2003, the mother petitioned for modification. The hearing officer found that the father's net monthly income was $ 453,483, yielding a net annual income of $ 5,441,796. It is undisputed that this was substantially higher than his prior income.
The majority opinion does not address the hearing officer's erroneous legal analysis. Understandably, the amount of child support the mother is receiving does not elicit much [**7] sympathy for her cause. Perhaps using the correct legal analysis, the hearing officer would have arrived at the same result, but I believe placing the burden on the mother may have skewed the result. We can review de novo the hearing officer's legal reasoning.
I agree with the majority opinion that factual determinations should be affirmed if supported by competent substantial evidence, but there is nothing on the record to support the finding that the father was paying $ 12,000 per month when it is undisputed that he has been paying $ 9,000 per month. Evidently, the hearing officer believed that $ 12,000 per month met the needs of the parties' two minor children. Neither the circuit judge nor the majority of this panel have addressed this discrepancy. I believe the trial court abused its discretion in not correcting this error and in not ordering the father to pay $ 12,000 per month retroactively. Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000) (finding that the trial court erred in failing to make child support modification retroactive to date of petition for modification; retroactive award in such cases is the rule rather than the exception). See, e.g., Brock v. Brock, 695 So. 2d 744, 745 (Fla. 1st DCA 1997).
I [**8] would reverse.
- There is a presumption that a Court should order child support in accordance with the Child Support Guidelines calculations as described in the Florida Statue 61.30. However, the Guideline Presumption is rebuttable. (Examples, 20% rule, special needs, child, etc.)
- Child Support Guidelines can be deviated from when the guidelines exceed the needs of the child.
- “Good Fortune” support is a valid reason for deviation
- Good fortune support is when they payor parent has such a high income that their presumptive child support amount would pay beyond the needs of the child
- As with other deviations, (travel etc.), the Court must make findings of fact to deviate by more than 5%
- The goal of child support is to meet present and future needs of the child. If guidelines don’t accomplish that end they can be deviated from.
- When deviating from guidelines a rule of thumb is somewhere between the child’s need and the guidelines
If a trust has been established and a guardian appointed, you may pay child support in excess of day to day expenses into that trust for the minor child
Case Law
- Finley
Facts
- “Scott's gross monthly income was approximately $ 266,926… the trial court found that it must consider not only the child support guideline amount, but must also consider the actual and bona fide needs of the minor child and the overall financial circumstances of each parent. During this determination of temporary child support, [the mother] introduced an affidavit establishing total monthly living expenses of $ 2128 for herself, the minor child of Scott, and another daughter whose father was not Scott.”
- “In September 1994, Scott filed a petition in the probate division of the Ninth Judicial Circuit in Orange County for the appointment of a guardian of the property of his minor child.” [the Mother was wasting the child support]
- “The trial court found that [the mother's] request of approximately $ 10,000 per month in direct child support had no economic relevance to the bona fide actual needs of the child.
- [Note]: a court may order a variance of more than five percent from the child support guideline upon a written finding as to why the payments of the guideline amount would be unjust or inappropriate.”
- “The Fifth District considered the case en banc. The en banc majority held that the trial court erred in awarding child support in the amount of $ 5000 per month when it found that only $ 2000 was required to meet the day-to-day living requirements of the child.”
Holding
- The Supreme Court followed Judge Goshorn’s Dissent which stated, “the trial court correctly determined that it was not bound to mathematically apply the guideline amount; rather, it properly concluded that paragraph 61.30(1)(a) could be applied to situations such as this where the guideline amount would yield an unintended and unreasonable result”
- “We find that the schedule for determining the amount of child support, presumed to be the amount a trial judge awards under section 61.30(6), is clearly rebuttable”
- “Our reading of the trial court's final judgment is that the trial court adhered to the statute. We do not agree with the district court majority that the trial court's order is an arbitrary "judicial compromise." Rather, we believe that the trial court properly exercised its discretion”
- “We conclude that the trial judge acted within his authority in this case in ordering that the portion of the money not needed for the child's immediate custodial maintenance be paid to the legally appointed guardian of the child's property.”
- Ferraro
Facts
- “Father agreed to pay child support of $ 12,000 per month directly to the Mother. Thereafter, the Mother petitioned the court for an upward modification of this amount”
- “the general magistrate found that the children's needs were being met by the $ 12,000 the Father was paying directly to the Mother, as well as the additional indirect payments of at least $ 16,770.”
Holding
- Enough is enough
- “In Miller v. Schou, 616 So. 2d 436, 438 (Fla. 1993),the Florida Supreme Court held that an increase in ability to pay is itself sufficient to warrant an increase in child support. However, the Court recognized that "[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle," and "Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases." Miller, 616 So. 2d at 439; see also Taylor v. Taylor, 734 So. 2d 473 (Fla. 4th DCA 1999) (denying modification where the court found that the children, even considering the substantial wealth of their father, lacked nothing).”
GERI E. FINLEY, Appellant, vs. DENNIS SCOTT, Appellee.
No. 90,071
SUPREME COURT OF FLORIDA
707 So. 2d 1112; 1998 Fla. LEXIS 83; 23 Fla. L. Weekly S 51
January 29, 1998, Decided
SUBSEQUENT HISTORY: [**1] As Corrected March 9, 1998. Rehearing Denied April 7, 1998. Released for Publication April 7, 1998.
PRIOR HISTORY: Application for Review of the Decision of the District Court of Appeal - Direct Conflict of Decisions Fifth District - Case No. 95-308 (Orange County).
OPINION
[*1113] CORRECTED OPINION
WELLS, J.
We have [**2] for review Finley v. Scott, 687 So. 2d 338 (Fla. 5th DCA 1997), which expressly and directly conflicts with the opinion in Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.
This is a paternity action brought in the circuit court of Orange County by Finley, the mother of a child born February 20, 1993. The complaint sought determination that Scott was the biological father of the child and also sought support for the child pursuant to section 61.30, Florida Statutes (1993).
By order dated January 25, 1994, the trial court adjudicated Scott to be the child's biological father and ordered temporary child [*1114] support in the amount of $ 5000 per month. The trial court's order states that the amount of temporary child support is less than the amount dictated by the child support guidelines imposed by section 61.30(6), Florida Statutes (1993), which would have required child support exceeding $ 10,000 per month because Scott's gross monthly income was approximately $ 266,926. 1 In entering an award of temporary child support, the trial court found that it must consider not only the child support guideline amount, but must also [**3] consider the actual and bona fide needs of the minor child and the overall financial circumstances of each parent. During this determination of temporary child support, Finley had introduced an affidavit establishing total monthly living expenses of $ 2128 for herself, the minor child of Scott, and another daughter whose father was not Scott.
FOOTNOTES
1 Section 61.30(6), Florida Statutes (1993), provides a schedule for computing minimum child support need based on income and number of children. The subsection also provides in relevant part:
For combined monthly available income greater than the amount set out in the above schedules, the obligation shall be the minimum amount of support provided by the guidelines plus the following percentages multiplied by the amount of income over $ 10,000.
The chart provided in the subsection specifies that the obligation for one child shall be an additional five percent of the amount of income over $ 10,000.
In September 1994, Scott filed a petition in the probate division of the [**4] Ninth Judicial Circuit in Orange County for the appointment of a guardian of the property of his minor child. Margaret Quarantello, an experienced private guardian of property, was proposed as the guardian of the property. At a hearing held before a judge of the probate division, evidence was presented as to the payment by Scott and use by Finley of the temporary monthly child support payments. The judge found at the end of the hearing that the ordered amount had not been expended for the benefit of the child and that Scott had paid a total of $ 12,000 above what was needed for the child. The judge declined to honor the preference of the mother in the appointment of the guardian because of "the already-apparent application of a large percentage of the minor's funds to [Finley's] own use and needs." Transcript of Guardianship Hearing at 40, Finley v. Scott, No. PR94-1872 (Fla. 9th Circ. Ct., Nov. 16, 1994). The judge appointed Quarantello to be the guardian of the property of the minor child.
A final hearing in the paternity action was held in December 1994. During this hearing, the trial court considered testimony of the attorney who represented Scott in the guardianship estate [**5] for the minor child. The trial court also considered the transcript of the record from the hearing in which the probate division judge appointed the guardian. Additionally, the trial court considered evidence as to the monthly incomes of Finley and Scott and the expenditure of temporary support payments which Scott had made to Finley.
In a paternity judgment dated December 30, 1994, the trial court entered a final adjudication that Scott was the biological father. The trial court awarded primary residential custody and responsibility to Finley, subject to shared parental responsibility. The trial court found that Finley had made misrepresentations to the court concerning financial information and had refused to properly account for the $ 50,000 of temporary child support that Scott had paid to her.
The trial court found that Finley's request of approximately $ 10,000 per month in direct child support had no economic relevance to the bona fide actual needs of the child. The trial court found that this Court recently stressed in Miller v. Schou, 616 So. 2d 436 (Fla. 1993), that "[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate [**6] lifestyle." Id. at 439. The trial court found, based upon section 61.30(1)(a), Florida Statutes (1993), that a court may order a variance of more than five percent from the child support guideline upon a written finding as to why the payments of the guideline amount would be unjust or inappropriate. The trial court stated that it declined to impose the guideline amount suggested by Finley in the amount of $ 10,011 but rather awarded the sum of $ 5000 per month because it found that this amount of support was "consistent with the actual [*1115] and bona fide needs of the minor child and the overall financial circumstances of each parent and will therefore foster and promote an appropriate lifestyle for her." Final Judgment of Paternity at 14, Finley v. Scott, No. DR93-10246 (Fla. 9th Circ. Ct., Dec. 30, 1994). The trial court further found that $ 5000 per month "achieves a more equitable result" pursuant to section 61.30(11)(k), Florida Statutes (1993). Id. at 16.
The trial court ordered Scott to pay $ 2000 per month directly to Finley and $ 3000 per month to Quarantello, as guardian of the property of the minor child. The court ordered Scott to pay the child support commencing [**7] January 1, 1995, "until the minor child attains the age of eighteen years, dies, marries, joins the military service, comes to permanently reside with [Scott] under an order modifying residential custody, until the death of [Scott], or until further order of Court." Id. at 17.
Finley appealed the final judgment, arguing that the trial court should have awarded the full guideline amount, $ 10,011, and that the trial court had no authority to require any of the support payment to be paid into a guardianship trust. Scott cross-appealed, arguing that the $ 3000 per month ordered to be paid to the guardian of the property was an abuse of discretion in that the $ 3000 was in excess of the child's actual needs.
The Fifth District considered the case en banc. The en banc majority held that the trial court erred in awarding child support in the amount of $ 5000 per month when it found that only $ 2000 was required to meet the day-to-day living requirements of the child. Finley v. Scott, 687 So. 2d 338, 342 (Fla. 5th DCA 1997). The majority concluded that the trial court erred in ordering an additional "good fortune award" of $ 3000 to be paid to the guardian. Id. at 340. The [**8] majority stated that the trial court's judgment in this regard was probably influenced by Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995), and by dictum in Schou. 2 687 So. 2d at 340. The Fifth District majority acknowledged an apparent conflict with Boyt and stated its disagreement with the Second District's interpretation of Schou as allowing good-fortune awards. Id. The majority below then reversed and remanded "for further action consistent with this opinion." Id. at 344. We interpret this to mean that the district court majority directed the trial court to enter a judgment in which the support amount to be paid to Finley is $ 2000.
FOOTNOTES
2 In Boyt, the Second District approved the award of child support in excess of the child's actual needs and also approved the payment of the excess funds into a trust for the child, with the court entering the child support order having jurisdiction to supervise the trust. Boyt, 664 So. 2d at 996. In Schou, this Court noted that "the determination of 'need' in awarding child support takes into account more than just the basic necessities of survival. The child of a multimillionaire would be entitled to share in that standard of living . . . and would accordingly be entitled to a greater award of child support . . . ." Schou, 616 So. 2d at 438 (citation omitted).
[**9] In the district court, Judges Sharp, Goshorn, and Griffin each wrote dissenting opinions disagreeing with the majority's characterization of the issues, the majority's analysis, and the majority's decision to reverse. Regarding the appropriate amount of child support, Judge Goshorn wrote:
In the present case, I find that the trial court correctly determined that it was not bound to mathematically apply the guideline amount; rather, it properly concluded that paragraph 61.30(1)(a) could be applied to situations such as this where the guideline amount would yield an unintended and unreasonable result. See also § 61.30(11)(k), Fla. Stat. (1993) (stating that "the court may adjust the minimum child support award . . . to achieve an equitable result . . . ").
Finley, 687 So. 2d at 348. We agree with Judge Goshorn's opinion endorsing a support amount of $ 5000, the amount awarded by the trial court.
As the trial court's final judgment recognized, the correct analysis of the amount of child support appropriate in this case begins with HN1 section 61.30(1)(a), Florida Statutes (1993), which provides:
The child support guideline amount as determined by this section presumptively [**10] 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, whether the proceeding arises under [*1116] this or another chapter. The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.
This section is followed by section 61.30(6), Florida Statutes (1993), which provides a schedule to be applied in determining the minimum child support need according to combined income and number of children.
We find that HN2the schedule for determining the amount of child support, presumed to be the amount a trial judge awards under section 61.30(6), is clearly rebuttable. 3 The trial court is given the specific authority to order payment of child support which varies more than five percent from the schedule upon a written finding or specific [**11] finding on the record explaining why ordering payment of such guideline amount would be unjust or inappropriate. § 61.30(1)(a), Fla. Stat. (1993). Furthermore, in determining child support, the trial court is to consider section 61.30(11)(k), Florida Statutes (1993), which allows for an equitable adjustment of the minimum child support obligation based upon the facts and circumstances of a particular case.
FOOTNOTES
3 Section 61.30, Florida Statutes (1993), creating rebuttable child support guidelines, is in conformity with 45 C.F.R. § 302.56(f) (1993), which is the federal administrative rule adopted pursuant to the Family Support Act of 1988, 42 U.S.C. § 667 (1994).
Our reading of the trial court's final judgment is that the trial court adhered to the statute. We do not agree with the district court majority that the trial court's order is an arbitrary "judicial compromise." Rather, we believe that the trial court properly exercised its discretion in finding:
In this case, this Court specifically declines to impose [**12] the guideline amount suggested by Petitioner in the sum of $ 10,011 but will rather award the sum of $ 5,000 per month as child support because this Court finds that the same is consistent with the actual and bona fide needs of the minor child and the overall financial circumstances of each parent and will therefore foster and promote an appropriate lifestyle for her.
Final Judgment of Paternity at 13-14. Consideration of both the bona fide needs of the child and the financial circumstances of each parent complies with section 61.30, Florida Statutes (1993), and with our decision in Schou. We reject the district court's majority view that consideration of parental financial resources conflicts with the statutory guidelines and with our decision in Schou.
Likewise, we reject Finley's argument that the trial court erred in varying from the guideline amount based on this record. As earlier noted, the statutory guidelines expressly contemplate the exercise of judicial discretion and authority by allowing modification of guideline amounts found to be unjust or inappropriate. The actual expenditure for the needs of the child is evidence the trial court should weigh in determining [**13] whether to vary the amount from the guideline formula. We note that the legislature amended section 61.30(1)(a) in 1994 by adding a phrase:
The trier of fact, after considering all relevant factors including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, may order payment of child support which varies, plus or minus 5 percent, from the guideline amount. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.
Ch. 94-204 § 2, at 1173, Laws of Fla. (underscoring indicates additions). Although the 1993 statute applies to this case, we accept the addition of this sentence to the statute as clarifying legislative intent that the trial court's decision as to a variant amount is to be based on these factors now listed in section 61.30(1)(a). See Parole Comm'n v. Cooper, 701 So. 2d 543 (Fla. 1997) (recognizing [*1117] propriety of considering subsequent amendment to a statute [**14] in interpreting prior statute if amendment was enacted soon after controversy arose); Lowry v. Parole & Probation Comm'n, 473 So. 2d 1248, 1250 (Fla. 1985).
We recognize that decisions as to whether and how much to vary child support awards from amounts dictated by the statutory guideline formula are fact-intensive decisions that depend upon the record in each case. Our analysis concurs with Judge Sharp's well-reasoned dissent, which indicates why the problem in this case begins with the fact-intensive nature of deciding the appropriate amount of child support. Judge Sharp stated:
While I concur with Judge Goshorn's opinion in this case, I appreciate the paradox of requiring a parent to overpay "needs and expenses" for a child, as Judge Harris points out in his majority opinion. The difficulty is in part semantical, and in part practical. The crux of the difficulty is settling on whose standard of living determines the "needs" of this child.
In this case, the mother is raising the child on a much lower standard of living than would be established by the father, if the child were living at his current lifestyle [as a professional athlete] of $ 266,926.00 gross income per [**15] month. He could well afford, for example, a full time nanny, housekeepers, international travel, residence in a mansion with high attendant expenses, and transportation in expensive automobiles--a portion of which could be allocated to this child. These expenses could easily equate to the $ 5,000.00 per month found appropriate by the trial court.
However, the mother is not able, in this case, to live at that standard of living. She must provide for herself and her other two children. They cannot benefit from the child support paid for this child, although the mother tried to do so, and has been properly reprimanded by the trial court for that effort. At her standard of living, the trial court found that only $ 2,000.00 was actually being spent on this child. However, if the father's child support obligations are limited to this level, the child will not share in her father's much higher standard of living and lifestyle. Clearly the "needs" of this child should not be solely based on what the mother can afford to spend on her, consistent with the mother's much lower standard of living. That also would be inequitable.
Finley, 687 So. 2d at 345 (W. Sharp., J., dissenting).
[**16] To assist trial courts in making this fact-intensive decision in future cases, we expressly point out that HN3a trial court is to begin its determination of child support by accepting the statutorily mandated guideline as the correct amount. The court is then to evaluate from the record the statutory criteria of the needs of the child, including age, station in life, and standard of living, the financial status and ability of each parent, and any other relevant factors. If the trial court then concludes that the guideline amount would be unjust or inappropriate and also determines that the child support amount should vary plus or minus five percent from the guideline amount, the trial court must explain in writing or announce a specific finding on the record as to the statutory factors supporting the varied amount. Absent an abuse of discretion as to the amount of the variance, the trial court's determination will not be disturbed on appeal if the calculation begins with the guideline amount and the variation is based upon the statutory factors.
We next consider whether the trial judge was authorized to require a part of the money to be paid to the legal guardian of the child's property. [**17] We conclude that the trial judge acted within his authority in this case in ordering that the portion of the money not needed for the child's immediate custodial maintenance be paid to the legally appointed guardian of the child's property.
This case differs from Boyt, in which the trial court ordered excess child support payments to be held in a trust account by a guardian ad litem. We believe the appropriate procedure is the one used in the present case and not the procedure used in Boyt. In this case, a probate court decision after guardianship proceedings determined that the child's property required a legal guardianship. Once the probate court determined a need for a guardianship of the property, [*1118] then the trial court in the support proceeding could use the guardian to protect the portion of the child support payment that the trial court determined pursuant to section 61.30 was not needed for the child's day-to-day custodial expenses. Through the guardianship, the probate court could exercise judicial supervision of this portion of the funds.
However, the appointment of a legal guardian of the property of a child represents a crucial distinction between this case and [**18] Boyt. Our conclusion is that HN4only when the necessity for a legal guardianship of the property has been proven and a legal guardian appointed by the probate court in accordance with chapter 744, Florida Statutes (1997), 4 can the trial court use a guardian to protect the minor's assets. The trial court is not to order any portion of the child support paid into a trust unless a legal guardian has been appointed, and we disapprove Boyt to the extent that it authorizes continuing supervision of the child support award by the court that determined the child support amount or the payment into a guardianship trust to be supervised other than through the probate court.
FOOTNOTES
4 A legal guardian of the property appointed in another state in accord with the guardianship of that state may also be used.
In this case, the probate court has made a specific finding requiring a court-appointed guardian of the property of the child because the child's custodial parent did not use temporary support payments totally for the [**19] benefit of the child. Now the probate court will supervise, through the guardian, the use of the money not required for the child's immediate custodial needs. We find this to be the correct procedure for this case.
Accordingly, we quash the decision of the district court and remand with directions to affirm the trial court's final judgment of paternity.
It is so ordered.
CONCUR BY: ANSTEAD
ANSTEAD, J., specially concurring.
I write separately only to emphasize the controlling principles first clearly articulated by Justice Grimes, in Miller v. Schou, 616 So. 2d 436 (Fla. 1993):
As a practical matter, it is impossible to believe that any court would award the same amount of child support where the paying parent is a multimillionaire as it would where the paying parent makes a modest living. While technically the child's basic survival needs would be the same in each case, the determination of "need" in awarding child support takes into account more than just the basic necessities of survival. See Smith v. Smith, 474 So. 2d 1212, 1213 ("The child's residence with his mother does not mean that the father must do no more than provide a survival level of support."). The child of a [**20] multimillionaire would be entitled to share in that standard of living--for example to attend private school or to participate in expensive extracurricular activities--and would accordingly be entitled to a greater award of child support to provide for these items, even though provision for such items would not be ordered in a different case.
Of course, we do not mean to imply that the child of a multimillionaire should be awarded enough support to be driven to school each day in a chauffeured limousine. The point of financial disclosure is not to ensure that the child of a wealthy parent will own a Rolls Royce, but rather to ensure that the trial court will have enough information to allow it to make an informed decision as to the extent of the parent's good fortune and the corresponding extent of the child's right to share in that good fortune. The child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle. We believe that Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases and will not, as Schou argues, create a class of children who are unduly pampered in the name [**21] of [*1119] sharing in the noncustodial parent's good fortune.
Diane D. Ferraro, n/k/a Diane Deighton, Appellant, vs. James L. Ferraro, Appellee.
No. 3D06-1876
COURT OF APPEAL OF FLORIDA, THIRD DISTRICT
971 So. 2d 826; 2007 Fla. App. LEXIS 16295; 32 Fla. L. Weekly D 2470
October 17, 2007, Opinion Filed
SUBSEQUENT HISTORY: Rehearing denied by, En banc Ferraro v. Ferraro, 2008 Fla. App. LEXIS 1386 (Fla. Dist. Ct. App. 3d Dist., Jan. 8, 2008)
Review denied by Ferraro v. Ferraro, 2008 Fla. LEXIS 1898 (Fla., Sept. 17, 2008)
PRIOR HISTORY: [**1]
An Appeal from the Circuit Court for Miami-Dade County, Maynard A. Gross, Judge. Lower Tribunal No. 96-25434.
Available Briefs and Other Documents Related to this Case:
FL Court of Appeal Brief(s)
COUNSEL: Kohlman Hernandez and Robert F. Kohlman ; and Greene Smith & Associates, and Cynthia L. Greene , for appellant.
Dino G. Galardi , for appellee.
JUDGES: Before GERSTEN , C.J., and GREEN , and RAMIREZ , JJ. GERSTEN , C.J. and GREEN , J., concur. RAMIREZ , J. (dissenting).
OPINION
[*827] PER CURIAM.
Diane D. Ferraro, n/k/a Diane Deighton (the Mother), appeals from an order denying her petition to modify child support. We affirm.
The parties have three children. When their marriage was dissolved, the court ordered James L. Ferraro (the Father) to pay child support. In the parties' most recent child support modification agreement, the Father agreed to pay child support of $ 12,000 per month directly to the Mother. Thereafter, the Mother petitioned the court for an upward modification of this amount.
The Mother's petition was referred to a general magistrate who held a two-day trial. The general magistrate found that since the previous modification agreement, the Father has consistently and continuously paid the Mother the $ 12,000 per month in direct child support.
In addition, the Father has paid for medical, health, [**2] and dental insurance costs, one half of all medical, health, and dental expenses over $ 3,000 per year, and all private school tuition, fees, books, and tutoring costs for all three children. The general magistrate also found that the Father is paying all expenses, including tuition, fees, books, room and board, and incidentals for the parties' oldest son who is away at college.
The trial court requested the general magistrate to provide more specific findings. The general magistrate further found that the parties' middle child is currently in a full-time residential facility for which the Father is paying. Additionally, the Father is paying the oldest child's automotive expenses of approximately $ 1,500 per month, as well as the cell phone bills for all three children. The Father also pays for all expenses on the former marital residence where the Mother and the youngest child reside.
The general magistrate also recognized that a strict mathematical application of the child support guidelines obligates the Father to approximately $ 44,680 per month in child support. However, the general magistrate again recommended denial of the Mother's motion to modify the child support.
The trial [**3] court carefully considered the evidence in the case and the general magistrate's findings and conclusion. It agreed with the general magistrate's recommendation that the circumstances warranted deviating from the guidelines. See § 61.30(1)(a), Fla. Stat. (2002) (stating that HN1a trier of fact may order child support which [*828] varies from the guideline amount where the guideline amount would be unjust or inappropriate); Finley v. Scott, 707 So. 2d 1112, 1116 (Fla. 1998) (affirming that HN2the actual expenditures for the needs of the child should be weighed in determining whether to vary the guideline amount).
In Miller v. Schou, 616 So. 2d 436, 438 (Fla. 1993), HN3the Florida Supreme Court held that an increase in ability to pay is itself sufficient to warrant an increase in child support. However, the Court recognized that "[t]he child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle," and "Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases." Miller, 616 So. 2d at 439; see also Taylor v. Taylor, 734 So. 2d 473 (Fla. 4th DCA 1999) (denying modification where the court found that [**4] the children, even considering the substantial wealth of their father, lacked nothing).
Here, the general magistrate found that the children's needs were being met by the $ 12,000 the Father was paying directly to the Mother, as well as the additional indirect payments of at least $ 16,770. This finding was supported by competent substantial evidence. HN4Where a general magistrate is appointed to make factual determinations, the trial court is bound by such determinations provided they are supported by competent substantial evidence which are not clearly erroneous. Robinson v. Robinson, 928 So. 2d 360, 362 (Fla. 3d DCA 2006).
Accordingly, we affirm the order denying a modification of child support under the overwhelming circumstances in this case.
Affirmed.
GERSTEN, C.J. and GREEN, J., concur.
DISSENT BY: RAMIREZ
RAMIREZ, J. (dissenting).
I respectfully disagree with the majority's affirmance in this case under the authority of Miller v. Schou, 616 So. 2d 436 (Fla. 1993). The Miller case, in fact, would support a reversal.
The mother appealed the trial court's denial of her exceptions to the report and recommendations of the hearing officer because the hearing officer's conclusions were legally erroneous. [**5] In particular, she alleges as error the fact that the hearing officer's report stated that "the mother has not met her burden of proof to support an upward modification of child support. The children's needs are being fully met . . . ." As Miller makes clear, the hearing officer is simply wrong as a matter of law. Miller states, "a substantial change in the paying parent's income is itself sufficient to constitute a change in circumstances warranting an increase in child support without a demonstration of increased need." Id. at 437. The mother presented overwhelming evidence that the father's income had increased substantially.
The father had been paying $ 12,000 per month in child support. The hearing officer found that the presumptive child support amount to be awarded pursuant to the child support guidelines was $ 23,483 per month for one child; $ 35,294 for two children; and $ 44,680 for three children. Under section 61.30(1)(b), of the Florida Statutes, the guidelines establish a substantial change in circumstances upon which a modification may be granted if the difference between the existing monthly obligation and the amount provided for under the guidelines is at least fifteen [**6] percent. Because the father is paying less than twenty-seven percent of the guidelines' presumptive child support, I believe the mother sustained her burden of proving a substantial change.
[*829] The evidence presented at the hearing overwhelmingly confirmed a substantial change in the father's income. The parties settled upon an initial amount of child support in a 1995 agreement whereby the father would pay $ 6,500 per month, an amount not computed in accordance with the guidelines. Thereafter, the parties agreed to increase the child support to $ 10,000 per month and later, in the year 2000, the parties agreed to a further increase to $ 12,000 per month. None of these modifications were computed based upon any form of financial disclosure or upon the child support guidelines.
In 2003, the mother petitioned for modification. The hearing officer found that the father's net monthly income was $ 453,483, yielding a net annual income of $ 5,441,796. It is undisputed that this was substantially higher than his prior income.
The majority opinion does not address the hearing officer's erroneous legal analysis. Understandably, the amount of child support the mother is receiving does not elicit much [**7] sympathy for her cause. Perhaps using the correct legal analysis, the hearing officer would have arrived at the same result, but I believe placing the burden on the mother may have skewed the result. We can review de novo the hearing officer's legal reasoning.
I agree with the majority opinion that factual determinations should be affirmed if supported by competent substantial evidence, but there is nothing on the record to support the finding that the father was paying $ 12,000 per month when it is undisputed that he has been paying $ 9,000 per month. Evidently, the hearing officer believed that $ 12,000 per month met the needs of the parties' two minor children. Neither the circuit judge nor the majority of this panel have addressed this discrepancy. I believe the trial court abused its discretion in not correcting this error and in not ordering the father to pay $ 12,000 per month retroactively. Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000) (finding that the trial court erred in failing to make child support modification retroactive to date of petition for modification; retroactive award in such cases is the rule rather than the exception). See, e.g., Brock v. Brock, 695 So. 2d 744, 745 (Fla. 1st DCA 1997).
I [**8] would reverse.
By Kenny Leigh
