Alois v. Alois, 4D05-1964.

• Decision Date: 09 August 2006
• Docket Number: No. 4D05-1964.,4D05-1964.
• Citation: 937 So.2d 171
• Parties: Angeline ALOIS, Appellant, v. Daniel T. ALOIS, Jr., Appellee.
• Court: Florida District Court of Appeals

937 So.2d 171

Angeline ALOIS, Appellant, v. Daniel T. ALOIS, Jr., Appellee.

No. 4D05-1964.

District Court of Appeal of Florida, Fourth District.

August 9, 2006.

Rehearing Denied October 4, 2006.

Douglas R. Bell, Fort Lauderdale, for appellant.

John H. Pelzer and Robyn L. Vines of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appellee.

TAYLOR, J.

Angeline Alois (former wife) appeals a post-decretal order requiring her to pay child support of $786 per month, plus a share of the children's medical expenses and private school tuition. The order also calculated an arrearage which accumulated during the proceedings below. The former wife contends that the trial court failed to properly consider the overall financial situation of the parties in awarding child support and calculated the arrearage from an incorrect starting date. She asserts that she is unable to pay the amount of child support ordered by the court and still maintain any reasonable standard of living. Based on our review of the record, we agree with the former wife's position on all points and reverse and remand this cause with directions to reduce her child support obligation to $200 per month, recalculate the arrearage, and establish different payment terms for the arrearage.

Daniel T. Alois, Jr. (former husband) and the former wife were married on August 31, 1985. They have three children, Amanda (now age 18, who presumably graduated from high school in June 2006), Danielle (now 15), and Danny (now 12). The parties divorced in May 2001, making this a fifteen-year marriage.

The former husband is a firefighter for the City of Oakland Park. The former wife is a job cost bookkeeper. The former husband's gross income is $79,000. The former wife's gross income is $34,587.

The 2001 dissolution decree incorporated the parties' mediation agreement. The parties agreed to a "hyper-rotating" custody of the children on a schedule to accommodate the former husband's work hours, such that the children were changing houses every 24-48 hours. The former husband agreed to pay the former wife $600 a month in child support and to pay the children's private school tuition through grade eight (then $500 a month) and all of the children's uncovered medical expenses. The former wife received no alimony.

Within two years after the divorce, the former husband remarried and the former wife purchased a house with her paramour, Glenn Gallowitz. The latter event caused a strain between the former wife and her oldest daughter, Amanda, who essentially stopped coming to her mother's house. On May 15, 2003, Gallowitz hit the former wife and pushed her into a wall in front of Danielle and Danny. Gallowitz called the former husband to come pick up the children because of what had happened. From this point forward, the former husband had de facto primary custody of all three children. The two daughters have had only minimal visitation with the former wife, but Danny has maintained a standard visitation schedule with his mother.

Four days after the May 15 incident, the former husband filed a motion to modify child custody, seeking primary residential custody. In his motion he did not address child support. On June 23, 2003, the parties entered into an agreed temporary order, which stated that until September 1, 2003, the former husband would be declared primary custodian of the children, that the former wife would have visitation, and that the former wife would refund half of the $600 a month in child support which she was still receiving by income deduction order.

On December 12, 2003, the former husband filed a motion for refund of the child support he had paid after August 2003 and was continuing to pay. The motion did not request that the former wife pay any child support to him.

On February 26, 2004, the former husband filed a pleading titled "Father's Supplemental Petition for Modification of Final Judgment: To-Wit: Primary Residence, Timesharing and Child Support." In that pleading, the former husband requested that, among other things, the trial court "adjust the child support obligations, commensurate with Florida's Child Support Guidelines, taking into consideration the children's private school tuition and the substantial timesharing he enjoys with his children . . . ."

The former husband has a monthly gross income of $6,583 and a net income of $4,767. Even though his current wife is a police officer, the former husband claims to pay all of the household expenses from his income alone. His mortgage is $959 and his car payment is $370.34 a month. According to the former husband, he spends $1,802 per month on the children, including $680 a month in private school tuition. He claims a total monthly deficit of $1,145.84.

The former husband stated in his affidavit that his home is worth $180,000. At trial he stipulated that the tax appraisal on the home is $194,000. He testified that he does not know the home's actual value. He drives an $18,000 Dodge Ram and owns a 1984 Chevy Cavalier that is driven by Amanda. He testified that he paid $2,000 for the Cavalier and recently spent $2,000 to repair it; he lists it as only an $800 asset. He has $10,000 in a retirement plan. The two mortgages on his home total $94,757, leaving him a total net worth of at least $94,843 (mostly home equity, which exceeds $85,000).

The former husband testified that Danny's tuition is $360 per month, his books are $400 annually, and his registration is $200 annually. The former husband must also donate $450 a year to the church to get a parishioner discount. He must also buy uniforms. The monthly tuition for Amanda and Danielle is $200 apiece; annual registration for each is $100; uniforms are $400 a year for both, and supplies amount to $300 a year. He also pays $800 a year for his daughters' cheerleading activities.

The former husband testified that he pays between $60 and $100 a month for Amanda's gasoline and $100 for her car insurance. As mentioned above, he recently paid $2,000 to repair her car. He spends $100 a month on cell phones for the two girls, and $120 a month for their lunch money. He said he spends $500 a month on children's entertainment and $80 a month for other children's birthday presents. He also testified to spending $10 a month on eyeglasses, $50 a month on cosmetics and toiletries, $40 a month on the children's grooming expenses, and $174 a month on Daniel's braces. Both parents want the children to stay in their current private, parochial schools. The cost will be $650 per child.

The former wife's monthly gross income is $2,882, and her net income is $2,325.22. The former wife's financial affidavit is starkly different from the former husband's, except that she also claims a deficit of $1,619.32 per month. Her expenses can be divided into two categories: "hard expenses," over which she has little control, and "soft expenses," which she may be able to reduce or eliminate altogether. The hard expenses are:

$915.70—Half of mortgage payment

$52.50—Half of the homeowner's association fee

$40.00—Half of the water, garbage, sewer

$100—Half of the electricity

$380.00—Car payment

$100—Gasoline

$100—Insurance

$200—Food

$20—Grooming

Her hard expenses total $1,908.20. Payment of these expenses leaves her less than $420 per month for softer expenses, which include telephone, home and car repairs, pest control, meals outside the home, cable television, entertainment, dry cleaning/laundry, clothing, medical/dental/prescriptions, cosmetics and toiletries, gifts, pet food, vacations, credit card debt, and life insurance.

The former wife's main asset is the home she jointly purchased with Gallowitz. The home is valued at $335,000, with a $224,225 mortgage. Because the home is jointly owned, it cannot be re-financed without Gallowitz's cooperation. The former husband has not requested that the former wife be forced to partition this home. The former wife drives a 2002 Dodge Stratus worth $14,000. Her pension plan is worth $1,200.

On February 15, 2005, the magistrate issued her report. She determined that the former husband should be the primary residential parent of all three children, but that the former wife should have substantial time-sharing with Danny. The magistrate ruled that she had jurisdiction to award child support retroactive to the date of the initial petition requesting a change in child custody, but awarded retroactive support as of the date of expiration of the parties' temporary agreement, September 1, 2003. She also ruled that the former wife must refund the $7,800 in child support she had received since that date.

The magistrate determined the children's total need for basic child support under the guidelines as $2,506.26 per month. The mother's share was 33%, yielding a guideline support amount of $827. The court applied a 5% reduction, for a total child support amount of $786 for the time prior to commencement of Danny's substantial time-sharing (i.e., the retroactive period prior to December 1, 2004). The court ordered that the wife continue to pay this amount after December 1, 2004, even though her child support obligation dropped to $505 per month at that point. The higher payment was to continue in order to pay arrearages and (beginning in September 2005) to pay $150 a month toward the children's private school. The child support portion of the monthly payment is to drop to $325 per month upon Amanda's graduation from high school, commencing June 1, 2006. Nonetheless, the payment will remain at $786 per month for the foreseeable future, based on the $150 private school tuition contribution and the arrearage.

The magistrate calculated that in addition to the $7,800 refund of the former husband's child support payments, the former wife owed $11,790 in retroactive child support (less a credit for $800 she expended on the children during this time frame). Thus, the former wife's total arrearage was calculated to be...