Mattison v. Mattison

• Decision Date: 08 March 2019
• Docket Number: Case No. 5D18-304
• Citation: 266 So.3d 258
• Parties: Raymond MATTISON, Appellant, v. Christine MATTISON, Appellee.
• Court: Florida District Court of Appeals

266 So.3d 258

Raymond MATTISON, Appellant,

v.Christine MATTISON, Appellee.

Case No. 5D18-304

District Court of Appeal of Florida, Fifth District.

Opinion filed March 8, 2019

Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, for Appellant.

Debra S. Johnson, of Debra S. Johnson, P.A., Orlando, for Appellee.

LAMBERT, J.

Raymond Mattison ("Former Husband") appeals the amended final judgment dissolving his marriage with Christine Mattison ("Former Wife"). Former Husband raises several claims of error, primarily related to child support and the equitable distribution of marital assets. Because we agree with the majority of his arguments, we reverse and remand for further proceedings.

CHILD SUPPORT —

The parties have two minor children resulting from their relatively short marriage.¹ The parties reached a 50/50 timesharing agreement regarding their children that was incorporated into the amended final judgment. The court ordered Former Wife to pay to Former Husband child support in the sum of $ 63.71 per month based upon its findings that Former Wife's "annual income for child support purposes is $ 107,761.08" and that "[Former] Husband's income is $ 86,400." The court also found that Former Wife owed Former Husband retroactive child support for the period from separation until the final judgment in the amount of $ 9130.80, to be repaid at the rate of $ 50 per month until paid in full. Lastly, the court ordered that the minor children's medical expenses that were not covered by insurance would be equally split by the parties. Former Husband challenges each of these rulings.

The undisputed evidence at trial is that in January 2017, during the pendency of the litigation, Former Husband was involuntarily laid off from his employment with Bank of America. Approximately two months later, and shortly before trial, Former Husband formed a medical underwriting company at which he employed two other individuals. The trial court found that Former Husband's new company was awaiting payment from a client on a $ 7200 invoice that the court concluded took approximately one month of work to generate. The court then extrapolated from these facts to find that Former Husband's annual income for purposes of computing child support was $ 86,400 ($ 7200 per month multiplied by twelve months). Former Husband contends that this ruling is erroneous as a matter of law. We agree.

Section 61.30, Florida Statutes (2017), sets forth the child support guidelines to be applied in Florida and the manner in which the court is to determine the parties' respective net incomes for purposes of computing the child support obligations. See § 61.30(2) – (4), Fla. Stat. Specifically, section 61.30(2)(a) 3. provides that a party's gross income shall include "[b]usiness income from sources such as self-employment, partnership, close corporations, and independent contracts" with business income being defined as "gross receipts minus ordinary and necessary expenses required to produce income." The trial court erred here when it determined Former Husband's income for child support purposes to be his anticipated gross income from self-employment without factoring in the ordinary and necessary expenses that Former Husband incurs to produce this income. On remand, the court is directed to recalculate the parties' child support obligation. The trial court, in its discretion, may receive additional evidence to assist it regarding the calculations described herein.

Because the child support arrearages total was based, in part, upon an incorrect figure used by the court for Former Husband's income from the time he was laid off from his previous employer until trial, the amount of the child support arrearages will have to be recalculated. To facilitate the trial court's determination of the arrearages, we address three other errors regarding the arrearages that should be corrected on remand. First, the court erred in not awarding prejudgment interest on the arrearages. See Burkley v. Burkley , 911 So.2d 262, 271 (Fla. 5th DCA 2005) ("Courts must award prejudgment interest on arrearages found to be due in the final judgment."). Second, the court failed to award post-judgment interest on the arrearage judgment itself. See Vitt v. Rodriguez , 960 So.2d 47, 48 (Fla. 5th DCA 2007). Third, in light of Former Wife's income and the interest on the arrearage balance now to be included on remand, the repayment of arrearages at the rate of $ 50 per month must also be revisited. The present $ 50 per month arrearage payment (computing to $ 600 per year) will barely pay the annual interest accruing on the present arrearage balance. See Lamar v. Lamar , 889 So.2d 983, 984 (Fla. 4th DCA 2004) ("[A] plan for purging child support arrearages ‘which postpones repayment of support until the object of such support reaches legal age or becomes self-supporting flies in the face of the very reasons for which "child support" exists.’ " (quoting Leone v. Weed , 474 So.2d 401, 404 (Fla. 4th DCA 1985) ) ). On remand, the trial court should set a monthly arrearage payment that is both consistent with Former Wife's ability to pay and satisfies the arrearages in a more expeditious fashion.

The court also erred in allocating the children's uncovered medical expenses equally. Presently, the monthly child support obligation of the parties is allocated 53.27% to Former Wife and 46.73% to Former Husband. "[A]bsent some logically established rationale in the final judgment to the contrary, collateral child support expenses must be allocated in the same percentage as the child support allocation." Julia v. Julia , 263 So.3d 795, 797, 2019 WL 211520 (Fla. 4th DCA Jan. 16, 2019) (quoting Zinovoy v. Zinovoy , 50 So.3d 763, 764–65 (Fla. 2d DCA 2010) ); see also § 61.30(8), Fla. Stat. Here, there was no "logically established rationale" contained in the amended final judgment for the disparate treatment. On remand, the court shall allocate the children's uncovered medical expenses in the same percentage as the parties' respective child support obligation, as recalculated after redetermining Former Husband's income, or provide a "logically established rationale" for doing otherwise.

EQUITABLE DISTRIBUTION —

(a) FIFTH THIRD BANK ACCOUNT – Former Husband argues that the trial court abused its discretion when it valued one of his Fifth Third Bank accounts at $ 13,000.56, which was the balance of the account on October 28, 2015, when Former Wife filed her petition.² Former Husband contends that the court abused its discretion when it equitably distributed this account to him in this amount when the undisputed evidence at trial showed that the account had been dissipated to a zero balance as of the trial date.

"The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion." Dorworth v. Dorworth, 176 So.3d 336, 338 (Fla. 5th DCA 2015) (citing Chehab v. Hamilton-Chehab , 45 So.3d 533, 535 (Fla. 5th DCA 2010) ). However, "[a]s a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings." Lopez v. Lopez , 135 So.3d 326, 328 (Fla. 5th DCA 2013) (quoting Roth v. Roth , 973 So.2d 580, 584 (Fla. 2d DCA 2008) ). Nevertheless, if marital misconduct results in the depletion or dissipation of a marital asset, the trial court may assign the asset to the dissipating spouse as part of that spouse's equitable distribution. Karimi v. Karimi , 867 So.2d 471, 475 (Fla. 5th DCA 2004).

Former Husband argues that the court erred in distributing this dissipated marital asset to him without making an express finding that the dissipation resulted from intentional misconduct. We agree. See Weymouth v. Weymouth , 87 So.3d 30, 36 (Fla. 4th DCA 2012) ("To include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct." (citing Roth , 973 So.2d at 585 ) ). As Former Wife did not argue below that this dissipated asset should be distributed to Former Husband due to his intentional misconduct, on remand, the trial court shall not include this asset in its equitable distribution of the marital assets and liabilities.

(b) FORMER HUSBAND'S MERRILL LYNCH 401(k) ACCOUNT – Former Husband argues that the trial court erred when it valued his Merrill Lynch 401(k) account at $ 24,474.11 and distributed...