Burkley v. Burkley, 5D04-2172.

• Decision Date: 30 September 2005
• Docket Number: No. 5D04-2172.,5D04-2172.
• Citation: 911 So.2d 262
• Parties: Joseph Raymond BURKLEY, Appellant, v. Sandra Sue BURKLEY, n/k/a Sandra Sue Averbeck, Appellee.
• Court: Florida Supreme Court

Page 262

911 So.2d 262

Joseph Raymond BURKLEY, Appellant, v. Sandra Sue BURKLEY, n/k/a Sandra Sue Averbeck, Appellee.

No. 5D04-2172.

District Court of Appeal of Florida, Fifth District.

September 30, 2005.

COPYRIGHT MATERIAL OMITTED

Carol A. Volini, Ocala, for Appellant.

William H. McDonald, III, Ocala, for Appellee.

THOMPSON, J.

Joseph Raymond Burkley appeals the final judgment that imputed his income retroactive to July 2000, established child support arrearage, and modified child support. The court erred because it failed to make the requisite findings to justify modification and violated statutory limitations on retroactivity. We reverse.

Burkley and his former wife, Sandra Sue Averbeck, were married for seven years and have two children. Following their 1998 divorce, Burkley's original monthly child support obligation was $776 per month, but in December 1999, the court issued an order that temporarily set his child support at $100 per week. Burkley and Averbeck later reached a partial mediation agreement ("Mediation Agreement") regarding child custody, support, and visitation in February 2000. Paragraph Three formed the basis for the decision on appeal:

The FH shall continue to pay child support to the FW of $100.00 per week until... the FH obtains employment. At said time the FH shall inform the FW of his employment and his pay and the parties shall attempt in good faith to agree upon the FH's new child support obligation. If the parties are unable to agree either party may file a motion with the Court with reasonable notice of the hearing on the motion being provided to the other party, and the Court shall determine the FH's child support obligation which shall begin with the FH's first paycheck received from his employment. The Court shall specifically retain jurisdiction to determine this issue upon the filing of said motion. (emphasis added).

The trial court incorporated this agreement into an order, entered 13 March 2000, that reads in part:

3. The Husband shall pay child support in the amount of ONE HUNDRED and NO/100 ($100.00) DOLLARS per week, ...

* * *

In addition, the payor shall also inform the Clerk ... of any change of employment ... Should any dispute arise over the amount of child support figure, this Court reserves jurisdiction... to make a final determination of that figure.

* * *

4. That the [Mediation Agreement] entered into between the parties on February 11, 2000, is hereby ratified and approved... This [Mediation Agreement] shall not be merged with or into the [Stipulated Order], but shall survive as a separate, enforceable contract on its own and shall be enforceable by either party as such.

5. With regard to the issues of permanent child support, ... the parties shall attempt to agree upon same upon the Former Husband's employment and ... in the event an agreement cannot be reached, either party may bring the issues before the Court by motion.

6. That this Court reserves jurisdiction of the parties hereto and the subject matter hereof the entry of such other and further Orders as may, from time to time, be necessary.

(emphasis in original).

In October 2000, Averbeck petitioned for modification of child support ("First Petition") because Burkley had begun working. Burkley countered with a request to modify his support obligation. Burkley alleged that they had agreed in July 2000 to maintain the $100 weekly payments. The court entered an order in December 2000 that disposed of various issues, but did not discuss child support. There was no further action on the First Petition until its dismissal for lack of prosecution in February 2004.

Burkley began working as an RV salesman in July 2000 and quit in July 2001. His gross monthly income from employment ranged from $2,218 to $2,888. His last job was with Terminex, from January 2002 until April or May 2002, where his gross monthly income was approximately $1,679. He left Terminex to begin college through a VA vocational rehabilitation program ("VA Program") for which he was eligible due to his medical discharge from the United States Marine Corps in September 1999. The discharge stemmed from a spinal injury and two surgeries that fused two of his vertebrae.

Burkley received a disability letter from the VA, dated 27 August 2001, that related the following service connected conditions:

1. We found your lumbar fusion L5-S1 60% disabling.

2. We found your chondromalacia, left knee 10% disabling.

3. We found your chondromalacia, right knee 10% disabling.

The percentages of your individual disabilities may not add up to your overall evaluation. We use a "combined rating table" to decide how disabled you are.... Your overall or combined evaluation is 70%.

Burkley began receiving monthly disability payments in January 2002 for approximately $1,000, which increased by the final hearing to $1,134. He began the VA Program for college, through which he received tuition, fees, books, required supplies, a subsistence allowance, and medical and dental benefits. The monthly subsistence allowance paid approximately $680 by December 2003. Through this program, Burkley attended community college from May 2002 and graduated in December 2003 with honors. The program is expected to lead to a Masters Degree in Rehabilitation Counseling in May 2008, after which he may seek a position as a vocational rehabilitation counselor with the VA. He was unemployed during school.

Averbeck filed a supplemental petition for modification and claim for breach of contract ("Second Petition") in October 2003 that alleged a substantial change in Burkley's income and the children's needs. The claim for breach of contract was based on the Mediation Agreement. Burkley contended that his income and the children's needs had not substantially changed and, further, that Averbeck did not need, and he did not have the ability to pay, increased child support. He denied any material breach of contract, alleging that his unemployment and college attendance resulted from his spinal injury, back surgeries, 70% disability rating, and participation in the VA Program to become gainfully employed by the VA.

At the March 2004 hearing on the motions, Averbeck explained that she never pursued the First Petition because she didn't do the paperwork properly and Burkley threatened to just quit his job. Nevertheless, she did not pursue the First Petition after she discovered he quit Holiday World. She stated Burkley told her that he was getting a six-year degree because the children would almost be grown up by the time he finished. She did not approve of his decision to go to school. Her gross monthly income was $2,071 in late 2000 and $4,006 in 2003.

Burkley related his employment history and explained that he did not know about college options when he signed the Mediation Agreement. He attempted to testify about an upcoming MRI and the possibility of additional back surgery. But the court sustained a relevance objection, stating: "It's not an issue that he has a disability. I think that's been addressed." Burkley also explained that a prospective employer had told him in 2001 that his spinal injury would prevent him from meeting the job's demands. Accordingly, he did not disclose his disability to Terminex in 2002. After graduating from community college, he sought employment by talking with a disabled veteran career counselor. The counselor told Burkley that his spinal injury would complicate acquiring employment, but offered him additional work study once he resumed college. Burkley claimed he informed Averbeck about his employment in 2000 and denied threatening to quit work.

The VA paid Burkley approximately $1,800 monthly while he was in college. When asked whether he could expect similar income at a job, the court sustained Averbeck's objection. Burkley conceded that he had worked full-time for four or five months after discovering his 70% disability rating in August 2001.

In ruling, the judge stated: "I haven't heard any evidence that he would not be able to attain — well ... I haven't heard any evidence ... specifically on what he could do and not do." The judge explained that a showing of substantial change of circumstances was unnecessary for breach of contract, the basis for her decision. Notwithstanding the decision to rule based upon breach of contract, virtually all of the ruling and judgment relied on the court's interpretation of Chapter 61, Florida Statutes (2003). The court noted that its March 2000 order was temporary and had not addressed permanent child support. Accordingly, it increased Burkley's support obligation retroactive to 1 July 2000 because it found that he breached his expressed or implied promise to obtain and maintain employment.

The court observed that, although specific findings are required to impute income, the statute afforded it discretion. It found that Burkley was partially disabled, but could work because he had worked full-time at two places and could have continued working, but he quit. The court noted testimony that Burkley made some effort to find employment and did not find evidence that he intentionally avoided his support obligation. It made no findings on Burkley's employability or qualifications: "I don't know what his abilities were, what else he could do, I know what he did."

The court recalculated Burkley's child support obligation retroactive to July 2000, computed instant arrearages of $13,397.98, and declined prejudgment interest on the support award. It is from this judgment that Burkley appeals.

While the duty to pay child support may arise from common law or statute, contract, or a confusion of both, Department of Health and Rehabilitative Services v. Holland, 602 So.2d 652, 654 (Fla. 5th DCA 1992), Florida statutory law and contract law are separate and distinct sources for the obligation. Zolonz v. Zolonz, 659 So.2d 451, 452 (Fla. 4th DCA 1995). Contracts regarding the support of minor children remain...