Pelton v. Pelton

• Decision Date: 16 December 1992
• Docket Number: No. 92-484,92-484
• Citation: 617 So.2d 714
• Parties: 18 Fla. L. Weekly D42 Larry PELTON, Appellant/Cross-Appellee, v. Sharon D. PELTON, Appellee/Cross-Appellant.
• Court: Florida District Court of Appeals

Page 714

617 So.2d 714

18 Fla. L. Weekly D42

Larry PELTON, Appellant/Cross-Appellee, v. Sharon D. PELTON, Appellee/Cross-Appellant.

No. 92-484.

District Court of Appeal of Florida First District.

Dec. 16, 1992.

Rehearings Denied May 27, 1993.

B. Paul Katz, of Chiumento & Katz, P.A., Palm Coast, for appellant/cross-appellee.

Hal Castillo and John J. Rahaim, II, Jacksonville, for appellee/cross-appellant.

SHIVERS, Judge.

The former Husband appealed the trial court's orders granting the former Wife's motions 1) for a modification of the final judgment of dissolution of marriage to increase child support and 2) for an award of attorney's fees. The former Wife cross-appealed the order pursuant to which the lower tribunal struck the nunc pro tunc provision of the upward modification of child support, which change effected the increase of support as of the date of the 1991 modification order, rather than the date of the 1989 dissolution decree. Our careful review of the pertinent statutes and cases persuades us that the trial court based its decision regarding child support on a misperception of which version of the statute applies. We reverse that portion of the order increasing child support, and remand for a recalculation of the parties' net incomes pursuant to section 61.30, Florida Statutes (1991) (child support guidelines). See Reed v. Reed, 597 So.2d 936, 937 (Fla. 1st DCA 1992); Fogg v. Southeast Bank, N.A., 473 So.2d 1352, 1353 (Fla. 4th DCA 1985). We also reverse that part of the order including in the former Wife's income the alimony award from the former Husband as spousal support received "from a previous marriage" pursuant to section 61.30(2)(a)(9), Florida Statutes (1991). The award of attorney's fees must be reversed as well, so that the trial court can reconsider the parties' relative needs and ability to pay and make a determination in light of the necessary recalculations. See Keister v. Keister, 458 So.2d 32, 36 (4th DCA 1984), pet. for rev. den., 466 So.2d 217 (Fla.1985). As to the former Wife's cross-appeal, we remand for a determination of the effective date of the modification of child support in accordance with the discretion invested in the trial court pursuant to McArthur v. McArthur, 106 So.2d 73, 76 (Fla.1958); Barrs v. Barrs, 590 So.2d 980, 981 (Fla. 1st DCA 1991).

On the first issue, child support, the trial court found the parties' combined incomes exceeded $50,000 per year. Accordingly, pursuant to the version of section 61.30 used by the trial court, the child support guidelines were deemed inapplicable. See section 61.30(1)(b)2, Florida Statutes (1989). The court determined that $1,580, or $790 per month for each of the two minor children, was a reasonable amount. That award constituted an increase of $500 per month, or $250 per child, from the original support award. We hold that the trial court erred, as a matter of law, in relying on the 1989 version of the child support guidelines.

Although the order of modification was filed prior to October 1, 1991, the effective date of the 1991 amendments of the statutory child support guidelines, see 1991 Laws of Florida, ch. 91-246, the proceedings were pending when the new law took effect. Reed, 597 So.2d at 937. Decisions on Appellant's motion for reconsideration and Appellee's motion for rehearing were rendered in January 1992. See Fla.R.App.P. 9.020(g). We find the case sub judice is controlled by our decision in Reed, where we determined the remedial nature of section 61.30 made it applicable to pending proceedings. We note that the honorable trial judge did not have the benefit of Reed when the award of child support was increased.

The $7,119.41 per month determined to be the parties' combined available income placed them below the $100,800 per year ceiling established in the applicable statute. See section 61.30(1)(b)2, Florida Statutes (1991). In its calculations, the trial court included the $800 per month permanent alimony award in the former Wife's income and did not deduct the $800 from the former Husband's income, thereby raising the second issue. Appellant alleged the failure to allow him the deduction was erroneous because it resulted in the "double inclusion" of the alimony amount in the income available for child support. We believe that the former Husband has misconstrued the statute.

Section 61.30(3)(a)-(f), Florida Statutes (1991), sets forth allowable deductions from gross income. The payor spouse's alimony obligation is not included in this list. The former Husband argued that the list of allowable deductions is not exclusive, and that the trial court's failure to allow him to deduct the amount paid in alimony brought about a result not intended by the legislature. In Harrison v. Harrison, 573 So.2d 1018 (Fla. 1st DCA 1991), we held that the trial court had erred in permitting the husband to deduct the amount of his disability and dental practice overhead insurance prior to the determination of appropriate child support. In Harrison, as in the case at bar, the item for which deduction was sought was not among the statutory deductions in section 61.30(3). We note, however, that the trial court has discretion, pursuant to section 61.30(10)(c), to adjust the minimum child support award, or the parental shares thereof, based on the payment of "spousal support to the obligee." Additionally, section 61.30(10)(i) permits an adjustment of the parental share of child support based on "[a]ny other adjustment which is needed to achieve an equitable result." We find no abuse of discretion in the trial court's not permitting the former Husband to deduct alimony.

The third issue is closely related to the second. Section 61.30(2)(a)9, Florida Statutes (1991), includes in gross income "[s]pousal support received from a previous marriage." Appellant contends the former Wife was required to include the amount of alimony in her income because, at the time of the post-dissolution modification proceedings, the $800 amount constituted support received from their previous marriage. We interpret the disputed language differently, as referring to a marriage previous to the one the dissolution of which is the subject of the modification proceedings. The former Husband has not provided any decisional law supporting his and the trial court's interpretation of section 61.30(2)(a)(9). We hold that the trial court erred, as a matter of law, by including the alimony award in the computation of the former Wife's gross income pursuant to section 61.30(2)(a)(9). On remand, the trial court is directed to determine each parent's percentage share of the child support need in accordance with the formula set forth in section 61.30(8) & (9), Florida Statutes (1991).

The fourth issue involves attorney's fees and taxation of costs. At the original final hearing in this matter, the former Husband introduced the former Wife's petition for voluntary bankruptcy under Chapter 7 of the United States Bankruptcy Act. The petition lists counsel for the former Wife as a creditor whose debt was to be discharged by the bankruptcy. At a subsequent...