Pitts v. Pitts
| Decision Date | 02 November 1993 |
| Docket Number | No. 93-135,93-135 |
| Citation | 626 So.2d 278 |
| Parties | 18 Fla. L. Weekly D2346 Pamela Kay PITTS, Appellant, v. Richmond B. PITTS, Appellee. |
| Court | Florida District Court of Appeals |
Bill A. Corbin, Blountstown, for appellant.
Rowlett W. Bryant of Bryant & Higby, Chartered, Panama City, for appellee.
The former wife appeals from two child support modification orders; the former husband cross-appeals from the second child support modification order. The issues raised by the former wife with respect to the first modification order challenge the trial court's (1) failure to make the child support increase retroactive to the filing date of the petition, and (2) denial of the former wife's petition for attorney's fees. The issues raised by the former wife with respect to the second modification order challenge the trial court's (1) reduction of child support, (2) denial of enforcement of past due child support, and (3) denial of the former wife's petition for attorney's fees. The former husband's cross-appeal issue contests the propriety of an increase in child support in the first modification order which exceeds the child support guidelines without explanation. We reverse.
The final judgment of dissolution of the parties' marriage issued March 28, 1983. It placed primary parental responsibility of the parties' then three-month-old daughter with the former wife, and directed the former husband to pay child support in the amount of $167.50 per month. On September 10, 1991, the former wife filed a petition for modification, seeking an increase in the original child support, on grounds of a substantial change in the circumstances of the parties and the minor child. The petition alleged that prior to filing the petition, the former wife asked the former husband to increase child support in accordance with the child support guidelines, but he refused to do so. The former husband's response admitted the former wife's request, and stated the former husband agreed to increase child support, but refused the amount of increase requested.
At the hearing on the wife's petition for modification, the former husband's testimony reflects that under an agreement with his employer, Grice Site and Earth Development Company (Grice), he would receive a twelve and one-half percent interest in the company if he remained with Grice for seven years. In addition to his salary, the company furnished him a vehicle for both business and personal use. The former husband acknowledged that he curtailed his personal use of the company vehicle in January 1992, upon commencement of the instant litigation. The record reflects that the company attorney has represented the former husband without charge, throughout all of the child support modification proceedings, and in another divorce proceeding occurring contemporaneously with the second modification proceeding.
The former wife testified that in the nine years since the final judgment, the former husband paid no increased support beyond the $167.50 monthly child support ordered in the 1983 final judgment. In 1991, the former husband provided an additional $75.00, in response to the former wife's request for help with the cost of school clothes for the child, but he had refused her requests for financial help when the child was small and in full-time day care. She further testified that at the time of the hearing, her 76-year old father watched the child after school because she could not afford to pay for child care. The former wife said that due to her father's heart condition, he was unable to provide full-time care during the summer. Her testimony reflects that after-school child care would cost at least $20.00 per week, and the least expensive full-time child care for the summer months would be $7.00 to $9.00 per day. The record further reflects that the child is in need of braces, and other dental care.
In a letter dated April 6, 1992, Judge Cole advised the parties that he found a material change in circumstances, and an increase in child support would be ordered, together with other provisions for the child's welfare. Shortly thereafter, the former wife filed a motion for restraining order to prevent the former husband from harassing her, her family, and her attorney.
The modification order dated April 24, 1992, directed the former husband to pay child support of $500.00 per month, beginning April 10, 1992; to maintain a decreasing term life insurance policy securing the present value of child support until the child's 18th birthday; and to maintain hospitalization insurance on the child. The order also made the parties responsible for their own attorney's fees. On April 27, 1992, three days after issuance of the order increasing child support, the former husband voluntarily terminated his employment with Grice.
Both parties filed motions for rehearing. The former husband maintained that the child support, as modified, exceeds the guidelines, and the life and health insurance premiums should be offset against the child support award. The former wife sought retroactive child support to the date of the petition for modification. Both motions for rehearing were denied.
On June 17, 1992, the former wife filed a motion for contempt, alleging the former husband had violated the terms of the modification order. The wife's attorney submitted two affidavits, on the question of a reasonable attorney's fee. On July 22, 1992, the former husband filed a petition for modification of child support, seeking abatement of the order dated April 24, 1992, on grounds that subsequent to entry of the order, the former husband changed jobs, resulting in a pay decrease from $525.00 to $500.00 per week. On July 14, 1992, the husband's changed employment terminated. An amendment to the petition stated that the husband had begun receiving unemployment compensation of $250.00 per week, he proposed to pay the former wife $250.00 per month in child support, and asked the court to make this sum firm.
On November 19, 1992, a hearing was held before Judge Roberts on the former husband's petition for modification of child support and the former wife's petition for contempt. J.D. Swearingen testified that he employed the former husband from May 5, 1992, until July 13, 1992, at $500.00 per week. Swearingen said that when the husband made it known he was unhappy with his position, he was told to resign.
The former husband offered several explanations for his decision to leave his employment with Grice, including concern about his mother's health, a loan secured by his mother's property, and the work slow-down at Grice. He said he had been looking for work since he left the job with Swearingen; his job search contacts for purposes of unemployment compensation were introduced into evidence. The former husband said he had not attempted to return to Grice because he does not get along with the company's president. The former husband was receiving unemployment compensation in the amount of $1,000.00 per month. He acknowledged that he owns his own home, he belongs to a hunting club and had paid his $200.00 annual dues in August 1992, and in March 1992, he paid $10,995.00 for a new Nissan pick-up truck.
The president of Grice testified that during his employment, the company paid one-half of the cost of the former husband's health insurance, and furnished him with a vehicle. She confirmed that the former husband would gain a twelve and one-half percent interest in the company after a seven-year tenure. Grice's president further stated the former husband voluntarily terminated his employment.
According to the former wife's testimony, after Judge Cole indicated he intended to increase child support, the former husband called her at 10:00 on Sunday morning, April 12th, furious about the judge's decision. The former wife testified:
He had just found out what Judge Cole was going to do. He told me that there was no way he could pay it. There was no way he would pay it. That he would quit his job if he had to. He would get a job making minimum wage and he would take me back and he would have it reduced and that is a quote.
The former wife further stated that the former husband was $1461.00 in arrears in child support. In addition, the former husband had allowed the child's medical insurance to lapse twice, as the former wife discovered when she took her daughter to the emergency room and the pharmacy. The policy taken out by the husband was strictly accidental hospitalization, so the child was covered only with regard to accidental injuries. The former wife stated that during the open enrollment period at her place of employment, she added her daughter to her insurance with the understanding that the former husband would reimburse the $67.00 monthly increase. However, the former husband had paid nothing other than the support amounts reported by the clerk.
Judge Roberts found the husband left his employment with Grice for legally sufficient reasons, that he was terminated from Swearingen through no fault on his part, and that he has actively sought employment since his termination. The court ordered child support modified as of July 22, 1992, the date the former husband filed the petition for modification of Judge Cole's order. The judge ordered the support recomputed, based on the husband's unemployment income.
The decision whether to make a child support award retroactive to the date of filing the petition is a matter within the trial court's discretion. Pelton v. Pelton, 617 So.2d 714 (Fla. 1st DCA 1992); Anderson v. Anderson, 609 So.2d 87 (Fla. 1st DCA 1992); Barrs v. Barrs, 590 So.2d 980 (Fla. 1st DCA 1991). Nevertheless, "[i]t is an abuse of discretion, ... to fail to award support from the date of the petition for modification where the need for the support and the ability of the former spouse to pay existed at the time the modification petition was filed." Anderson, 609 So.2d at 89; ...
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