Crouch v. Crouch, 5D03-3073.

• Decision Date: 11 March 2005
• Docket Number: No. 5D03-3073.,5D03-3073.
• Citation: 898 So.2d 177
• Parties: Eugene M. CROUCH, Appellant, v. Jill S. CROUCH, Appellee.
• Court: Florida District Court of Appeals

898 So.2d 177

Eugene M. CROUCH, Appellant, v. Jill S. CROUCH, Appellee.

No. 5D03-3073.

District Court of Appeal of Florida, Fifth District.

March 11, 2005.

Rehearing Denied April 8, 2005.

Horace Smith, Jr., P.A., Smith, Hood, Perkins, Loucks, Stout & Orfinger, P.A., Daytona Beach, for Appellant.

Rhoda Bess Goodson and Andrea M. Kurak of Cobb & Cole, Daytona Beach, for Appellee.

PLEUS, J.

The former husband appeals from a final judgment dissolving the parties' ten year marriage, distributing certain assets, and adjudicating the parties' support obligations relative to the parties' two minor children. The former husband raises four challenges to the judgment. These relate to: (1) the trial court's failure to award guideline child support, or alternatively, failing to explain why it deviated from the child support guidelines; (2) the award of exclusive use and possession of the marital home to the former wife where such award was not incident to child support and without provision for the sale of the home upon the former wife's remarriage; (3) the trial court's treatment of the parties' financial accounts, and (4) the trial court's finding that the former husband reimburse the former wife for one-half of their older son's orthodontia expenses.

Facts

The parties were married on September 9, 1990 and separated in October 2000. They have two boys, who at the time of trial, were 14 and nearly 12, respectively.

At the time of trial, the former husband was 48 years of age and in good health. He is a medical doctor with a private practice and has a monthly income of approximately $11,000 or $132,000 per year.

The former wife was 47 years of age and confirmed she had a 2001 income of $740,647 though she claimed in her financial affidavit a monthly income of $7,750.00. The former wife testified that though trial occurred in July 2003, she had yet to complete her 2002 income tax return. The former wife's net worth was primarily accumulated through gifts from her family. She presently sits on the board of directors of her family's corporation. The former wife's investments had a 2001 book value of over $2.4 million.

The former wife's physical health is good though at times during the marriage she suffered from depression, exacerbated by alcohol abuse. The former wife has sought and successfully completed treatment programs and is capable of managing her parental responsibilities.

The trial court awarded shared parental responsibility but did not designate a primary residential parent, instead allowing the former husband to have the youngest child four days a week with the former wife having the child three days. The trial court allowed the former wife to have the oldest child four days a week with the former husband having the child three days a week.

A prenuptial agreement executed by the parties in 1990 dictated the manner in which many of their assets would be divided. Premarital and individually held property were to remain with the original owner though gifts between the parties were permitted. Two of the assets at issue below were the marital home and an A.G. Edwards investment account.

The parties jointly purchased the marital home in 1994. There is no mortgage on the home which was valued in 2001 at $700,000. The trial court found that the home is a marital asset¹ and granted the wife exclusive use and possession until the youngest child reaches age 18. The dissolution decree does not provide for termination of the exclusive possession if the former wife remarries.

According to the former husband, the A.G. Edwards account had been his prior to the marriage. The former wife's name was put on the account as a courtesy and she never accessed the account during the marriage. The wife claimed the account was a joint account. The account had a balance of approximately $165,000. The trial court found the account to be a marital asset and ordered it be equally divided.

The former husband additionally testified that the parties had Sun Trust checking/savings accounts which were in their joint names. The former wife admitted that the Sun Trust accounts were in joint names but asserted that she put the former husband's name on them as a courtesy. The dissolution decree is silent as to the Sun Trust accounts.

As to the children, there was evidence that they each have irrevocable trusts established by their maternal grandparents. These trust funds have a value in excess of $1.1 million. The former wife is the sole trustee of these funds. The former wife requested no child support and has used some of the income from the trusts to support the children, such as paying their private school tuition and summer camps. The former husband requested child support. The trial court ordered no child support by either party but required the parties to share equally the children's private school expenses as well as medical and dental insurance premiums and expenses. The court also ordered the former husband to reimburse the former wife for one-half of the older son's orthodontia expenses. This was based on the former wife's trial testimony that she had paid for the child's orthodontia work "in the entirety," with no contribution from the former husband. In his motion for new trial/rehearing, the former husband attached a copy of charges showing him as the responsible party for $3,260.30 in orthodontia fees which were billed and paid by him three months before the parties separated. The former husband also attached a statement reflecting a balance in the Sun Trust checking accounts of approximately $29,000. The trial court denied this post-trial motion.

Child Support

The former husband requested guideline child support and he argues that the trial court erred in declining to award guideline support or provide an adequate explanation for deviating from the support guidelines. He points out that the testimony below reflected that the former wife had a substantially greater income but the trial court ordered no support. The former wife counters that the court made specific findings on the issue of child support, to wit: the children are beneficiaries of trusts, the children's needs are being met, both now and into the foreseeable future, both parents are financially secure, both had adequate means of providing for the children's needs and finally, that time sharing was equally divided between the parents. The former wife argues that based on these findings, the trial court had the discretion to decline to order guideline support.

Section 61.30, Florida Statutes (2003) contains child support guidelines. The "guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support," though the court may deviate, "plus or minus 5 percent, from the guideline amount, after considering all relevant factors." § 61.30(1)(a). A deviation of more than five percent from the guideline amount is proper only upon a written finding by the court explaining why ordering such guideline amount would be unjust or inappropriate. Id. Section 61.30(1)(a) further provides that:

Notwithstanding the variance limitations of this section, the trier of fact shall order payment of child support which varies from the guideline amount ... whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with the primary and secondary residential parents. This requirement applies to any living arrangement, whether temporary or permanent.

The guideline matrix begins with a combined monthly available income of $650.00 and goes up to $10,000.00. For combined monthly income greater than that "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: one child, 5.0%, two, 7.5%...."

Two problems exist with the child support issue. First, the trial court made no finding as to the incomes of each parent. Second, the court failed to calculate the total support obligation as per section 61.30, Florida Statutes. See Jones v. Johnson, 747 So.2d 1066 (Fla. 5th DCA 2000).

This is not to imply that the trial court erred in its ultimate decision declining to adopt guideline support. This case offers several interesting twists relative to child support. First, each parent was essentially given equal custody of the children on a rotating basis. As the trial court noted, under such circumstances, where neither parent is designated as "primary" or "secondary" residential parent, a court has discretion to deviate from the support guidelines. See Constantino v. Constantino, 823 So.2d 155 (Fla. 4th DCA 2002).

Second, as the trial court found (and neither party disputes) each party is financially able to meet the support needs of the children during the period when the children reside with them. In other words, there is no indication of any need on the part of either parent for an award of child support.

Third, while the parents are able to meet the children's support needs, one parent, the former wife, appears to earn substantially more income, derived from non-marital assets, than the former husband. Does this disparity in income, of itself, warrant as a matter of law, an award of child support to the former husband? Finley v. Scott, 707 So.2d 1112 (Fla.1998), indicates a negative answer to this question.

Finley involved a paternity suit against a professional basketball star. Child support under the guidelines would have exceeded $10,000 a month but the mother and child's total living expenses were about $2,000 a month. The trial court awarded child support of $5,000 a month, $3,000 of which was to be paid into a guardianship trust. The trial court found that the mother's request for $10,000 a month in child support had no economic relevance to the bona fide actual needs of the child. The mother appealed, arguing the trial court should have awarded the...