Ordini v. Ordini

• Decision Date: 26 November 1997
• Docket Number: No. 96-2788,96-2788
• Citation: 701 So.2d 663
• Parties: 22 Fla. L. Weekly D2692 Paul ORDINI, Appellant/Cross-Appellee, v. Linda ORDINI, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 663

701 So.2d 663

22 Fla. L. Weekly D2692

Paul ORDINI, Appellant/Cross-Appellee, v. Linda ORDINI, Appellee/Cross-Appellant.

No. 96-2788.

District Court of Appeal of Florida Fourth District.

Nov. 26, 1997.

George Glenn of Grall, Fanaro & Glenn, Vero Beach, for appellant/cross-appellee.

Eric C. Barkett of Jackson & Barkett, and Melly Nofal Corley of Graves and Hill, P.A., Vero Beach, for appellee/cross-appellant.

KLEIN, Judge.

We reverse the judgment dissolving the parties' twelve year marriage, because, among other things, we find that the trial court erred in not taking into account, in determining husband's income, the husband's parents' monthly support of the parties and their children on a regular basis throughout the marriage. We also certify the question as one of great public importance.

The parties, who have two children, are in their thirties. After they got married they lived in New Jersey in a home owned by husband's father's company. In New Jersey husband "worked" for his father, receiving a weekly salary of $400, but he seldom actually worked, unless he felt like it. In addition, husband's parents completely supported the parties so that the total they received, including the salary, was about $6,500 a month.

The parties moved to Florida in the early 1990's, and the husband started an acrobatic flying business, which was in reality a hobby which produced no income. Husband's parents continued to support the parties after the move, as well as after they separated in 1994, and through the time of trial.

The wife, who is thirty-three, did not complete high school, but has an equivalency diploma and, at the time of trial, was attending junior college. She had obtained a manicurist license when they lived in New Jersey; however, she is a hepatitis B carrier, which legally prevents her from being a manicurist in Florida. Her condition also causes her to become fatigued. It was mutually agreed that during the marriage the wife would be a full time homemaker and mother.

The parties do not own a home. Their marital assets consist of a residential lot, a few vehicles, two airplanes, a trailer and camper for a total value of $136,600. The husband owned non-marital assets, as a result of gifts from his parents, consisting of certificates of deposit and an annuity, which totalled $215,600.

For purposes of determining alimony and child support, the court imputed an earning ability of $3,000 a month to the husband and $1,200 a month to the wife. The court awarded the wife permanent periodic alimony of $1,000 a month and guideline child support. The court concluded that it could not consider what the husband's parents had given the parties in the past, in determining the husband's income, citing Sol v. Sol, 656 So.2d 206 (Fla. 3d DCA 1995).

In Sol, which was a modification proceeding, the trial court granted an increase in child support, and included, in arriving at husband's income for the child support guidelines, $20,000 a year, based on gifts that the husband had received from his parents during the three years preceding the modification hearing. In reversing, the third district characterized the evidence as showing "large sporadic cash gifts ... which varied in frequency and amount over the preceding several years." Id. at 208. The court concluded that the "imputation of future gift income" to child support, under those circumstances, was impermissible, citing Bedell v. Bedell, 583 So.2d 1005 (Fla.1991); Shiveley v. Shiveley, 635 So.2d 1021 (Fla. 1st DCA 1994); Bob v. Bob, 310 So.2d 328 (Fla. 3d DCA 1975).

In the present case, as we noted earlier, the support that this couple was receiving monthly from the husband's parents from the inception of the marriage continued through the trial of this case. In addition, husband's mother testified that she would continue to meet her son's needs so long as it was for a proper purpose, which would include that his children and ex-wife be "properly cared for." Husband's father claimed that he was not aware that his wife was supporting their son's family. It was not clear as to whether he could or would interfere in the future with the support that his wife had been supplying.

The wife argues, and we agree, that this case is factually distinguishable from Sol as well as the other cases in which Florida courts have held that gifts cannot be considered in arriving at income.

In Sol, as we already noted, the gifts were irregular in regard to both the amount and when they were made. In Bob, the wife's parents had been regularly helping the parties while the husband was in medical school, and the court held that the payments were "in all probability meant to be temporary," while the husband was being educated for a greater earning power. The court reversed an alimony award of thirty percent of the husband's income, holding that he was only obligated to support the wife in a standard of living which they could have maintained without the gifts from her parents.

In Bedell the wife sought an increase in alimony eleven years after the marriage was dissolved. Two years after the dissolution she had relinquished custody of the children to her husband, and she testified that her original alimony award had become inadequate at that time, as soon as she stopped receiving child support. The husband argued that he should not have to pay more because of the wife's mother's assistance. It is not surprising that the supreme court rejected the husband's argument because a spouse on the receiving end, who is being given assistance because of inadequate support, would be in a catch-22 if courts were to reduce support obligations for that reason. We thus find Bedell distinguishable.

In Shiveley the court concluded that income should not be imputed to the wife from gifts her parents had given the parties over six years, finding that what would happen in the future would be "purely speculative." Id. at 1022. There was no evidence in Shiveley of the regular periodic payments that there had been in the present case or testimony that the payments would continue in the future.

There are cases, however, in which gifts have been considered. The third district recently held that the trial court did not err in imputing income to the wife for purposes of child support, based on monthly payments of the wife's living expenses by the wife's mother. Cooper v. Kahn, 696 So.2d 1186 (Fla. 3d DCA 1997). The court noted that the definition of income in the definitions section of chapter 61 defines income as including "payments, made by any person." § 61.046, Fla. Stat. (1995). The court also noted that section 61.30(2)(a)13, Florida Statutes (1995), which provides child support guidelines, includes as income "reimbursed expenses or in-kind payments to the extent that they reduce living expenses." The court concluded that it was within the trial court's discretion to include the gifts, which were "continuing and ongoing," and distinguished the "sporadic gifts" in Sol. See also Thalgott v. Thalgott, 571 So.2d 1368 (Fla. 1st DCA 1990) (regular payments by a party's parents of expenses included in income); Garcia v. Garcia, 560 So.2d 403 (Fla. 3d DCA 1990) (the value of free housing provided by husband's father to wife and children included in wife's income).

Courts in other jurisdictions are divided on whether gifts can be considered. One case in which the court held that they could be considered was quoted in Judge Schwartz's dissent in Sol:

It is not necessary that a party be contractually entitled to certain income before such income can be considered in arriving at the fair amount of child support to be paid (see Tedrow v. Tedrow, 36 A.D.2d 686, 319 N.Y.S.2d 785). The evidence is clear that the defendant has been receiving monthly gifts from his aunt for some time and that it is her intention to continue making these gifts so long as she is able to do so. In these circumstances, the gifts were properly taken into consideration. In the event the payments cease at some later date, the defendant is free to seek a downward modification in this child support obligation in the appropriate manner.

Blickstein v. Blickstein, 99 A.D.2d 287, 294, 472 N.Y.S.2d 110, 115 (1984). See also Tutak v. Tutak, 127 Misc.2d 436, 486 N.Y.S.2d 637, 638 (N.Y.Fam.Ct.1985). But see Huebscher v. Huebscher, 206 A.D.2d 295, 614 N.Y.S.2d 524 (N.Y.App.Div.1994) (annual gifts to wife from mother should not be included in imputed income to wife for purposes of establishing child support).

In Barnier v. Wells, 476 N.W.2d 795 (Minn.Ct.App.1991), the husband had been receiving monthly payments from his father as well as $5,000 from his grandmother on his birthday, Easter, and Christmas. The Minnesota court concluded that if a gift is regularly received from a dependable party, it may be used to determine the amount of child support. To the same effect is Schinner v. Schinner, 143 Wis.2d 81, 420 N.W.2d 381 (Wis.App.1988). In Nass v. Seaton, 904 P.2d 412 (Alaska 1995), the court did not allow the gifts to be included but noted that the applicable rule would, under some circumstances, permit it. Gifts were not included in Triggs v. Triggs, 920 P.2d 653 (Wyo.1996); however, the court left the door open for them to be included under more compelling facts.

For cases holding that gifts cannot be included, see In re Marriage of Harmon, 210 Ill.App.3d 92, 154 Ill.Dec. 727, 568 N.E.2d 948 (1991); True v. True, 615 A.2d 252 (Me.1992); Ikard v. Ikard, 819 S.W.2d 644 (Tex.App.1991); and Ebbert v. Ebbert, 744 P.2d 1019 (Utah...