Flanagan v. Flanagan, 95-01944

• Decision Date: 03 May 1996
• Docket Number: No. 95-01944,95-01944
• Citation: 673 So.2d 894
• Parties: 21 Fla. L. Weekly D1072 Ruth C. FLANAGAN, Appellant, v. Alan M. FLANAGAN, Appellee.
• Court: Florida District Court of Appeals

Page 894

673 So.2d 894

21 Fla. L. Weekly D1072

Ruth C. FLANAGAN, Appellant, v. Alan M. FLANAGAN, Appellee.

No. 95-01944.

District Court of Appeal of Florida,

Second District.

May 3, 1996.

Appeal from the Circuit Court for Collier County; William L. Blackwell, Judge.

Louis S. Erickson, Naples, for Appellant.

Tom Grogan, P.A., Naples, for Appellee.

RYDER, Acting Chief Judge.

This appeal arises from an order modifying the child support that Ruth Flanagan must pay her former husband, Alan Flanagan. Alan has custody of the parties' two sons born during their marriage. We reverse the order of modification, in part, because, as will be discussed below, the trial court erred in establishing the amount of support Mrs. Flanagan should pay and in determining some of the arrearages that she owed to her former husband.

Mr. and Mrs. Flanagan were married for seven years, and two children were born of the marriage. Before the parties met, Mrs. Flanagan gave birth to a son, Bryant. During the marriage, Bryant's birth certificate was amended to show Alan Flanagan as his father, however, Alan did not formally adopt Bryant. The parties stipulated that Alan was not Bryant's natural father.

Ruth Flanagan raised six points on appeal. Her sixth issue contended that the trial court erred in refusing to require Alan to provide support to Bryant. We affirm the court's decision on this matter without discussion. We divide Mrs. Flanagan's remaining five points into three categories: monthly child support, attorney's fees and arrearages.

I. MONTHLY SUPPORT FOR THE CHILDREN OF THE MARRIAGE.

When the parties' marriage was originally dissolved, Ruth Flanagan was attending school to become a licensed practical nurse. While she was in school, the lower court imputed income to her in the amount of $4.35 per hour, the minimum wage, and ordered her to pay $49.00 per week as child support for the two children born during the marriage. In June 1993, Alan Flanagan filed a motion to modify the support on the grounds that Ruth had graduated from nursing school and was now employed. Ruth does not dispute that her employment was a substantial change in circumstances that warranted a modification. Instead, she challenges the amount the trial court ordered her to pay, asserts that the award should not have been made retroactive to the date of Alan's petition, and claims that Alan's present wife's income should have been taken into account in determining his income for support purposes under the guidelines.

Ruth does not earn a fixed monthly salary. She is employed by a company that provides nurses to hospitals, nursing homes and for private duty. Both her hours worked and her hourly rate vary, depending on the availability of work and where she performs her job. The evidence showed that from January 1995 until the date of the hearing, March 22, 1995, Ruth earned gross income of approximately $1,515.50 per month. During a few months in 1994, she did earn a somewhat larger amount, perhaps as much a $1,700.00 per month, gross income. The order of modification states that "based on Ruth C. Flanagan's most current earning history, this court does impute to her a net income of $1,500.00 per month." The court added this imputed income to Alan's net income of $2,303.56 to reach a combined income of $3,803.56 for child support purposes, and found that Ruth's percentage of the combined total was 39%. It then looked to the guidelines, determined that the monthly amount of support for two children based on the parents' combined income was $1,274.00 per month, and ordered Ruth Flanagan to pay 39% of the amount, or $481.26 per month. See § 61.30, Fla.Stat. (1993).

In her first issue on appeal, Ruth Flanagan challenges the court's determination of her income for purposes of establishing the child support she owes under the guidelines. We agree with her contention that the trial court abused its discretion in imputing net income to her in the amount of $1,500.00. See Stodtko v. Stodtko, 636 So.2d 814, 815 (Fla. 3d DCA 1994) (absent special circumstances, trial court may not impute income to a spouse at a level that the spouse has never before earned in her line of work). We note that the court specifically stated it arrived at this amount based on Ruth's most current earning history. While that history certainly supports imputation of gross income in the amount of $1,500.00, it does not support imputation of net income in that amount. See § 61.30(3)(a)-(f), Fla.Stat. (1993) (listing deductions to be made from gross income in determining net income for purposes of the guidelines).

Ruth also claims the court erred in failing to deduct her expenses in raising Bryant from her gross income in determining her net income available for support of the two children born during her marriage. We note that the guidelines do not directly address the situation presented here. Section 61.30(3)(f), Florida Statutes (1993), allows a deduction from gross income for "[c]ourt-ordered support for other children which is actually paid." Because Bryant lives with Ruth, she obviously does not pay a court-ordered amount for his support, and section 61.30(3)(f) is inapplicable. Hutslar v. Lappin, 652 So.2d 432 (Fla. 1st DCA 1995). Section 61.30(11)(k), however, permits a court to adjust a parent's share of the minimum child support award based on:

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. § 61.30(11)(k), Fla.Stat. (1993).

While this provision is discretionary, we hold that the lower court abused its discretion by failing to consider Ruth's preexisting support obligation to Bryant in determining the amount she could pay for support of her two later-born sons. See Hutslar.

We, therefore, reverse and remand to the trial court to redetermine Ruth's monthly child support payment in accordance with this opinion. We direct the lower court to recalculate the amount of Ruth's net monthly income and to reduce the minimum award under the guidelines by an amount that takes into consideration what Ruth must reasonably expend for Bryant's support. If necessary, the court may take further evidence on these issues.

We affirm the court's decision, challenged in point II of this appeal, to make the modification retroactive to the date of Alan Flanagan's petition. Fotorny v. Fotorny, 397 So.2d 329 (Fla. 4th DCA 1981). As to Mrs. Flanagan's fourth point, we affirm the court's decision to exclude evidence about Alan Flanagan's present wife's income. The income of a party's spouse is relevant in child support proceedings if the party asks the court to depart from the guidelines because of a support obligation to a...