Stock v. Stock, 95-04500

• Decision Date: 16 May 1997
• Docket Number: No. 95-04500,95-04500
• Citation: 693 So.2d 1080
• Parties: 22 Fla. L. Weekly D1256 Donald A. STOCK, Appellant/Cross-Appellee, v. Katherine L. STOCK and Michael J. Egan and Doris Y. Egan, Appellees/Cross-Appellants.
• Court: Florida District Court of Appeals

Page 1080

693 So.2d 1080

22 Fla. L. Weekly D1256

Donald A. STOCK, Appellant/Cross-Appellee, v. Katherine L. STOCK and Michael J. Egan and Doris Y. Egan, Appellees/Cross-Appellants.

No. 95-04500.

District Court of Appeal of Florida Second District.

May 16, 1997.

Nelson A. Faerber, Jr., of Faerber, Hissam, Cliff & Perez-Benitoa, Naples, for Appellant/Cross-Appellee.

Suzanne D. Lanier, of Richman, Deifik, Lanier and Ross, P.A., Naples, for Appellees/Cross-Appellants.

NORTHCUTT, Judge.

In this dissolution of marriage action, the trial court shouldered the unenviable duty of untangling the parties' relatively complicated financial affairs and then equitably apportioning their resources and responsibilities. All-in-all, the court performed quite well. Unfortunately, as is often the case, the parties' wealth did not match the complexity of their finances. Both the husband and the wife feel shortchanged, and both have appealed the final judgment.

The husband challenges the lower court's reservation of jurisdiction to award alimony to the wife, its requirement that he share in the expense of maintaining the children's horses, and the court's failure to compensate him for the wife's transfer of a parcel of real estate referred to as the Curlew property. In her cross appeal, the wife disputes the court's allegedly unequal distribution of marital assets and liabilities, its failure to award her a credit for marital mortgage payments she made during the parties' separation, and the court's refusal to require the husband to pay temporary child support arrearages. We affirm in part and reverse in part.

The court accurately determined that the wife was entitled to alimony, but that the husband's ability to pay was limited due to his child support obligations. Therefore, it reserved jurisdiction to consider the husband's earning ability and his ability to pay alimony in the future as each child's emancipation reduces his child support obligation. The husband argues that it is error to order an automatic future increase in alimony. Kinzler v. Kinzler, 497 So.2d 909 (Fla. 5th DCA 1986). However, the court here did not direct that a specific alimony award commence in the future, but merely reserved jurisdiction to make that determination at a later time. The question whether to reserve jurisdiction to award alimony in the future lies within the court's discretion. Shaw v. Shaw, 334 So.2d 13 (Fla.1976); Strahan v. Strahan, 605 So.2d 1316 (Fla. 4th DCA 1992); Roy v. Roy, 522 So.2d 75 (Fla. 4th DCA 1988). Here, the evidence shows a likelihood that there will be a change in circumstances that would enable the husband to meet his obligation to contribute to the wife's support. That being the case, the trial court correctly reserved jurisdiction for that purpose. Roy, 522 So.2d at 76. We affirm on this point.

We conclude, however, that the court either should not have directed the husband to contribute to the expense of maintaining the children's horses, or should have made a more specific finding to support the award. The final judgment established the husband's basic child support obligation at $1,000 per month pursuant to the statutory child support guidelines and based on his sixty-one per cent share of the parties' combined monthly income. In addition, the husband was ordered to pay his proportionate share of the $300 monthly expense to maintain the children's horses. Thus, the total of these two aspects of the husband's child support obligation was $1,183, an 18.3 per cent variance from the amount prescribed by the statutory guidelines.

Section 61.30(1)(a), Florida Statutes (1995), provides that "[t]he trier of fact may order payment of child support in an amount which varies more than 5 percent from [the] guideline amount only upon a written finding, or a specific finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate." Lotz v. Lotz, 686 So.2d 704 (Fla. 2d DCA 1996); Stewmon v. Stewmon, 654 So.2d 259 (Fla. 2d DCA 1995). Here, the court justified the variance merely by noting that the children were involved in 4-H Club activities and citing section 61.30(11)(f). That provision allows a trial court to adjust the minimum child support award, or either or both parents' share of it, to accommodate "[s]pecial needs that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the proposed guidelines."

Certainly, the children's longstanding involvement in an extracurricular activity qualifies as a special need, and properly forms the basis for a discretionary departure from the child support guidelines, under that statutory provision. But when the resulting child support obligation exceeds the guideline amount by more than five per cent, section 61.30(1)(a) requires the trial court to make specific findings explaining why it would be unjust or inappropriate to adhere to the guidelines notwithstanding that such might preclude the children from having one or more of their "special needs" met. In other words, the presence of a special need for purposes of section 61.30(11)(f) does not, in itself, satisfy the requirement for findings under section 61.30(1)(a). See Lotz, 686 So.2d at 705 (reversing where, although trial court recited factors for which section 61.30(11) permits adjustments of child support guideline amount, trial court did not make specific findings to explain why ordering payment of the guideline amount would be unjust or inappropriate).

The latter necessarily involves assessing the importance of the subject need in light of all other relevant circumstances. For instance, while a court might in its discretion conclude that it would be unjust or inappropriate to forego meeting a child's relatively minor special need if the parents could easily afford to pay for it, poorer financial circumstances might well justify allowing the same need to go unmet. By the same token, of course, a court could find that it would be unjust not to compel the parents to meet an important special need even if doing so would impose a heavy financial burden.

In the Stocks' case, the record reflects that the children were, indeed, active in the 4-H Club, and that the attendant expense had traditionally been met within the family budget. However, the record also discloses that the parties had lived above their means during the marriage, and had enlisted substantial financial support from the wife's parents, the Egans. Both the husband and the wife leave their union in financial straits. Both have been given responsibility for marital indebtedness that will severely strain their modest incomes and assets. Under all the circumstances, the $300 monthly expenditure on the children's horses is a significant one that the parties can ill afford to make. That being the case, the judgment's simple reference to the fact that the children's 4-H Club involvement constituted a special need within the meaning of section 61.30(11)(f) was insufficient to justify a variance from the statutory guideline amount. See Lotz, 686 So.2d at 705; Reynolds v. Reynolds, 668 So.2d 245, 247 (Fla. 1st DCA 1996)(reference to the husband's other debts, a factor permitting adjustment of the guideline amount under section 61.30(11)(k), was insufficient to justify a variance of more than five per cent under section 61.30(1)(a)); Chapoteau v. Chapoteau, 659 So.2d 1381, 1385 (Fla. 3d DCA 1995)(blanket statement regarding the difference in the costs of living in Germany and the United States was insufficient to explain variance from guideline amount under section 61.30(1)(a)).

That said, we note evidence in the record that might have supported a finding that it would be unjust or inappropriate to discontinue the children's involvement with horses even in light of their parents' relative lack of means. The parties had owned horses for seven years prior to the divorce. The wife testified that the daughters' horses were their "whole life." The girls were reacting poorly to the dissolution of their family, and their therapist opined that any further changes in their lives would be detrimental to their emotional health.

Although the foregoing factors would have justified a variance from the child support guidelines under section 61.30(1)(a), we resist the temptation to surmise that the trial court relied on factors that it did not specify in the finding required by the statute. It is beyond our authority to weigh and evaluate the evidence which possibly supports the award, for to do so would usurp the discretion and fact-finding role that the legislature has expressly vested in the trial court. For purposes of appellate review, and for purposes of future modification proceedings, the statutory requirement that the trial court articulate its...