State, Dept. of Revenue on Behalf of Marshall v. Smith, 97-04100
| Decision Date | 21 August 1998 |
| Docket Number | No. 97-04100,97-04100 |
| Parties | 23 Fla. L. Weekly D1966 STATE of Florida, DEPARTMENT OF REVENUE, on Behalf of Barbara L. MARSHALL, Appellant, v. Randolph G. SMITH, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Barbara A. Ard, Assistant Attorney General, Tampa, for Appellant.
Mary L. Taylor of Prevatt, England & Taylor, Tampa, and David B. McEwen of David B. McEwen, P.A., St. Petersburg, for Appellee.
Barbara L. Marshall, the mother, and the State of Florida, Department of Revenue, appeal a final order establishing the amount of child support Randolph G. Smith, the father, is required to pay. The appellants argue that the trial court erred in considering Smith's two older children in setting the child support amount. We affirm.
Smith and Marshall had a child out of wedlock. At the time of the child's conception and birth, Smith was married with two children born of that marriage. Smith's marriage remained intact.
In calculating the amount of child support that Smith is required to pay, the trial court subtracted from his monthly income the amount of child support that Smith would have been required to pay pursuant to the child support guidelines for his two older children, if he and his wife had divorced. See § 61.30, Fla. Stat. (1995). Marshall contends that section 61.30(11), Florida Statutes (1995), provides for the type of circumstance that would allow the trial court to deviate from the child support guidelines. She asserts that there is no provision to allow a court to deviate more than five percent based on support for children of the existing marriage. See § 61.30(1)(a), Fla. Stat. (1995). We disagree. Section 61.30(11)(k), Florida Statutes (1995), states that the trial court may adjust the minimum child support award based upon, "Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt."
In Flanagan v. Flanagan, 673 So.2d 894 (Fla. 2d DCA 1996), the husband filed a petition to modify the amount of child support the wife was required to pay. Before the parties met, the wife had a child, and it was stipulated that the husband was not the biological father of the child. Thereafter, there were two children born of the marriage. Upon the dissolution of the marriage, the husband was awarded custody of the two children, and the wife raised the third child. As in our case, the wife argued that the trial court should consider her preexisting support obligation to the older child in computing child support for the two children born of the marriage. This court agreed and noted that the guidelines did not address the situation.
This court held that, although...
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