Ervin v. Fla. Dep't of Revenue

• Decision Date: 22 December 2014
• Docket Number: No. 1D14–1193.,1D14–1193.
• Citation: 152 So.3d 1261
• Parties: Bruce ERVIN, Appellant, v. FLORIDA DEPARTMENT OF REVENUE and Hollie Starr, Appellee.
• Court: Florida District Court of Appeals

152 So.3d 1261

Bruce ERVIN, Appellant

v.FLORIDA DEPARTMENT OF REVENUE and Hollie Starr, Appellee.

No. 1D14–1193.

District Court of Appeal of Florida, First District.

Dec. 22, 2014.

Kelly R. McNeal of McNeal Legal, LLC, Gainesville, and Caroline Picart, Gainesville, for Appellant.

Hollie Starr, pro se, Appellee.

Opinion

PER CURIAM.

Appellant appeals an amended downward modification order concerning his child support obligation, raising five issues. We reverse in part and remand for further proceedings consistent with this opinion.

Background

In 2008, Appellant's marriage to Appellee was dissolved. The parties had one minor child. The amended final judgment adopted the marital settlement agreement entered into by the parties and awarded Appellee $869.58 in monthly child support. The lower court later entered an arrearage order, finding that, as of August 26, 2010, Appellant was in arrears in child support payments in the amount of $11,774.12 plus interest. The court ordered Appellant to make his monthly child support payment and, commencing on September 22, 2010, ordered Appellant to pay $25.17 in arrearage payments, continuing monthly until the total arrearage was eliminated.

The Department of Revenue (DOR), on behalf of Appellant, filed a supplemental petition for downward modification, alleging a substantial change in circumstance. At the child support modification hearing, Appellee's counsel admitted that Appellant's child support obligation would adjust downward, but noted that Appellee was requesting an upward departure from the guideline minimum amount based upon the evidence, and also that Appellee was requesting the support obligation be extended beyond the child's high school graduation date, because of the child's alleged developmental disabilities.

In presenting its case, DOR's counsel called both Appellant and Appellee to testify. Appellant testified to his income and also admitted that he had not exercised his right to overnight visitation with the child since 2008. Appellee also testified as to her income, including income from her bartending business. Appellee acknowledged that she had not listed a monthly income from the business on her financial affidavit, but asserted that she had not known the amount of monthly income until she prepared a document for her accountant for tax returns. She was questioned extensively by DOR's counsel regarding her business income based upon this document. Upon questioning by her own counsel, Appellee asserted that this document reflected a net income of $55.46 in 2013 for her business. DOR's counsel objected to the document being admitted into evidence because it was a compilation of records. The lower court sustained the objection and clarified that its reasoning for sustaining the objection was based upon the fact that the amount of money being discussed was minimal and would not have an overwhelming bearing on the calculations.

A DOR representative testified that, at the time of the hearing, the current arrearage per the Clerk of Court was $6,230.47, not including interest. DOR's counsel submitted its child support guidelines worksheet, asserting that based on its calculations, the downward departure was $376 per month, and asked that the modification be granted retroactive to when Appellant's supplemental petition was filed on November 6, 2013. DOR's counsel asserted that its calculation did not take timesharing into consideration, because Appellant admitted that he had been unable to exercise his overnight visitations. Appellee's counsel submitted her guidelines worksheet. The court, noting a substantial difference between the two calculations, stated it would make a decision after reviewing the documents and hearing closing arguments. Appellee's counsel requested the opportunity to put on his client's case, but the lower court declined to allow further evidence.

The court stated that it was granting a downward modification of $400 per month, stating that the figure it came up with was the best that it could from an equitable and subjective standpoint, not from a mathematical standpoint. Additionally, as part of its discretion, the court granted Appellee's request to increase the amount by 5%. The court also added a $65 monthly addition to the child support. The court also awarded a breakdown of the uncovered medical expenses to be borne by Appellant in the amount of 43% and by Appellee in the amount of 57%. The court also extended Appellant's child support obligation for two and a half years beyond the child's high school graduation date.

The court entered its order granting the downward modification, establishing the child support guidelines amount to be $400 per month, based on the child support guidelines provided by both DOR and Appellee's attorney. The order notes that the amount was then deviated upward by 5% at the court's discretion, resulting in a total of $420 per month. The court then increased this amount by an additional $65 per month due to the child's extraordinary medical expenses, resulting in a total obligation of $485 per month. The order found that as of January 16, 2014, Appellant owed $6,230.47 in arrearages, but found that he was entitled to a credit of $779.66 in retroactive modified support from November 6, 2013 through January 21, 2014, resulting in Appellant's total arrearages of $5,450.81. The court ordered Appellant to pay $115 per month until this amount was eliminated. Appellant was also ordered to pay 43% of the child's reasonable and necessary health expenses incurred that were not covered by insurance. The order also required Appellant to provide health insurance for the minor child.

Analysis

Appellant first asserts that the lower court erred in awarding child support based upon what it deemed equitable and on a subjective figure instead of calculating the amount based upon the statutory guidelines and factors. We note that, as a separate issue in this appeal, Appellant also asserts that the lower court erred in calculating the child support by failing to include Appellee's additional income from her business. We find that these two issues are intertwined and reversal is appropriate as to both.

“Child support decisions are typically discretionary.” Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) (citing Glasgow v. Wolfe, 873 So.2d 483, 484 (Fla. 1st DCA 2004) ). “However, a trial court's discretion concerning child support is subject to the statutory guidelines set forth in section 61.30, Florida Statutes.” Id. (citing Kareff v. Kareff, 943 So.2d 890, 892 (Fla. 4th DCA 2006) ). “Whether a trial court has complied with the guidelines is a question of law to be reviewed de novo.” Id.

Section 61.30, Florida Statutes (2013), provides the starting point for determining the child support amount in both an initial proceeding and a modification proceeding. Pursuant to the statute, “[t]he child support guideline amount determined by this section presumptively establishes the amount the trier of fact shall order as child support ... in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter.” § 61.30(1)(a), Fla. Stat. (2013).

In determining child support, a trial court is required to first determine each parent's gross monthly income. See § 61.30(2), Fla. Stat. (2013). Gross income includes:

...