Johnson v. Johnson

• Decision Date: 24 March 2021
• Docket Number: No. 4D20-504,4D20-504
• Citation: 313 So.3d 651
• Parties: Fallon JOHNSON, Appellant, v. Jacorey JOHNSON, Appellee.
• Court: Florida District Court of Appeals

313 So.3d 651

Fallon JOHNSON, Appellant,

v.Jacorey JOHNSON, Appellee.

No. 4D20-504

District Court of Appeal of Florida, Fourth District.

[March 24, 2021]

Lisa Paige Glass of Glass Law Office, P.A., Boca Raton, for appellant.

James L. Green of Law Office of James L. Green, P.A., Jupiter, for appellee.

Conner, J.

Fallon Johnson ("Former Wife") appeals the trial court's final judgment dissolving her marriage to Jacorey Johnson ("Former Husband"). Although Former Wife raises numerous issues on appeal, we find merit in only two of her arguments, namely that the trial court erred in designating the child's school boundary determination and the child support calculation. We reverse as to those two issues, as discussed below, and affirm the remaining issues without discussion.

Background

Prior to the petition for dissolution of marriage, the parties resided in their home in Palm Beach County with their minor child. Eventually, Former Husband moved to St. Lucie County. Upon filing for divorce, Former Wife's petition requested the trial court order a parenting plan for the minor child if she and Former Husband were unable to agree to one, but made no other specific request as to timesharing.

Later, Former Husband filed a motion for temporary relief requesting equal timesharing with Former Wife. In response, the trial court ordered the parties to follow a model parental timesharing schedule, giving Former Husband timesharing with the minor child every other weekend beginning on Friday. Pursuant to the child support guidelines worksheet, the trial court also ordered Former Husband to pay temporary child support of $447.26 a month, which was the net remaining after Former Husband paid the childcare expenses of $600 a month.

Eventually, Former Wife and the child moved out of the marital home and into her sister's home in Broward County. Upon learning Former Wife had moved the child to Broward County, Former Husband filed an emergency motion to have the child returned to Palm Beach County, where Former Husband once again resided. He alleged that Former Wife lacked permission to move the child and that she had no need to relocate other than to deprive him of time with the child. Determining the motion did not constitute an emergency, the trial court denied the motion without prejudice to pursue the matter on a nonemergency basis. Former Husband never refiled the motion.

At trial, Former Husband's financial affidavit was entered into evidence, which reflected: (1) his salary; (2) he does not actually pay child support for any other children; (3) he pays $49 in union dues each month; and (4) his monthly health insurance payments, including dental and excluding any portion paid for any minor children outside of the relationship, was $176 per month. Upon testifying, Former Husband: (1) provided an estimate as to his salary, seemingly consistent with the affidavit; (2) did not provide any testimony as to whether he actually pays child support for any children; (3) did not testify as to his union dues; and (4) stated that his health insurance plan is a one-cost plan that covers five people, including other adults.

Former Wife testified that despite the temporary child support order, she paid all the childcare costs for the year preceding trial. For that reason, she requested that she be given credit for these expenses that Former Husband was supposed to pay. Former Husband admitted that he stopped paying for childcare when the child moved to Broward County.

As to timesharing, Former Wife requested that the prior court-ordered arrangement continue. At the time of trial, Former Wife was still living in Broward County. In support of her request, Former Wife explained that the move to Broward County was necessary because the marital residence was in foreclosure and made uninhabitable because the bills were not paid, and that she was unable to secure other housing in Palm Beach County based on her income. On the other hand, in Broward County, the child and Former Wife were able to secure housing. Following the move, the child had to change physicians and preschools, and while in Broward County, the child became school-aged and started elementary school where he made friends and played sports.

However, Former Husband requested approximately ten nights per month in accordance with a different model schedule than the trial court used in the order for temporary relief.

At the conclusion of closing arguments, the trial court made no oral finding or announcement of rulings, even when politely requested by Former Wife's counsel. Instead, the trial court asked the attorneys to submit proposed final judgments with findings. Notably, at one point during the trial, the trial court made an explicit observation that Former Wife never sought temporary relief concerning timesharing, only seeking temporary financial support.

In the final judgment, the trial court made findings pursuant to section 61.13, Florida Statutes (2019), regarding factors to consider for timesharing. Significantly, the trial court found it was in the child's best interest to remain a resident of and attend school in Palm Beach County. Hence, the trial court ordered the child's return to Palm Beach County within ten days. As to timesharing, the trial court provided the parties with two options, depending on whether Former Wife chose to move back to Palm Beach County. The options were embodied in two exhibits attached to the final judgment, setting a time sharing schedule revolving around the concepts of "primary residential parent" and "secondary residential parent": (a) Former Wife could move back to Palm Beach County with the child, making her the primary residential parent and giving Former Husband time with the child every Thursday afternoon to Friday morning and every other weekend starting Thursday afternoon; or (b) Former Wife could remain in Broward County and Former Husband would be the primary residential parent, giving Former Wife time with the child every other weekend starting Friday afternoon. The trial court also noted in the findings that no testimony was provided regarding the child's community or school record.

Regarding the child's education, the trial court designated Former Husband's address for purposes of the school boundary determination, if the parties could not agree otherwise.

As to child support, the trial court ordered that Former Wife was entitled to $453 per month if she relocated back to Palm Beach County, but, otherwise, Former Wife had to pay Former Husband $150.65 per month—the adjusted amount for the $200 a month she would prepay for childcare. The trial court also listed Former Husband's net monthly income with a deduction of $400 a month for child support for previous relationships and $75 a month for union dues. Regarding health insurance, the child support guidelines worksheet indicated that Former Husband paid $110 in total monthly children's health insurance costs, but the child support guidelines income attachment indicated that he paid $110 for health insurance costs "not for children per month."¹

Former Wife gave notice of appeal.

Appellate Analysis

School Boundary Determination

A trial court's decision regarding school designation is reviewed for abuse of discretion. Bruce v. Bruce , 243 So. 3d 461, 464 (Fla. 5th DCA 2018) (citing Schwieterman v. Schwieterman , 114 So. 3d 984, 987 (Fla. 5th DCA 2012) ). "An appellate court will not disturb the trial court's custody decision unless there is no substantial, competent evidence to support the decision." Winters v. Brown , 51 So. 3d 656, 658 (Fla. 4th DCA 2011).

Former Wife argues that the trial court erred in designating Former Husband's address for the child's school boundary determination because it was unclear which parent would be the primary residential parent. Former Husband argues that the trial court properly designated his address because the trial court determined that it was in the child's best interest to live in Palm Beach County and there was no other Palm Beach County address to use.

Section 61.13(2)(b) 3., Florida Statutes (2015), requires a parenting plan to contain a designation of residence for school attendance. The determination must be made based on "the best interests of the child." Schwieterman , 114 So. 3d at 987 (citing 61.13(3), Fla. Stat. (2010) ). The determination of the best interests of the child is made by evaluating more than twenty factors affecting the welfare and interests of the child. § 61.13(3), Fla. Stat. (2015). While the trial court is not required to address each factor independently, it must, at a minimum, find that its timesharing determination and school designation is in the best interests of the child. Neville v. McKibben , 227 So. 3d 1270, 1273 (Fla. 1st DCA 2017). This finding must either be stated on the record or set out in the order. Clark v. Clark , 825 So. 2d 1016, 1017 (Fla. 1st DCA 2002).

Bruce , 243 So. 3d at 464.

Although Former Wife argues that the trial court was penalizing her for moving the child, since the trial court found that it was in the child's best interest to live in Palm Beach County, the trial court logically had to designate a Palm Beach County address for the child's school assignment. See id. Accordingly, there was competent substantial evidence on the record to support this designation.

The trial court, however, should have provided a contingent designation in the event that Former Wife opted to move back to Palm Beach County as the final judgment provided for, or simply stated that school designation will be based on where the child primarily resides. As Former Wife argues, school boards set policies as to where a child attends school based on residential address. In particular, Palm Beach County mandates that a student attend school where the student lives for the majority of the time. Palm Beach County School Board Code No. 5.011 (2018). As a result, if Former Wife moves to Palm Beach County, she would be forced to...