Thalgott v. Thalgott, 90-437

• Decision Date: 11 December 1990
• Docket Number: No. 90-437,90-437
• Citation: 571 So.2d 1368
• Parties: 15 Fla. L. Weekly D3027 Joe Henry THALGOTT, Appellant, v. Sally Suzanne THALGOTT, Appellee.
• Court: Florida District Court of Appeals

Page 1368

571 So.2d 1368

15 Fla. L. Weekly D3027

Joe Henry THALGOTT, Appellant, v. Sally Suzanne THALGOTT, Appellee.

No. 90-437.

District Court of Appeal of Florida First District.

Dec. 11, 1990.

Joe Henry Thalgott, pro se.

Charlotte I. Hunter, Ocala, for appellee.

ERVIN, Judge.

Appellant, Joe Thalgott, the former husband, appeals a modification order increasing his child-support obligation and requiring him to pay his former wife's attorney's fees incurred in the action below. Appellant contends that the trial court erred in imputing income to him and appellee without taking any testimony from appellee or giving appellant the opportunity to testify or cross-examine appellee on this issue; in failing to permit appellant to inquire whether payments appellee had received from her parents should be considered income; in awarding appellee attorney's fees; and in failing to order shared parental responsibility. We reverse and remand as to the first three issues, but affirm as to the last for the reason that appellant did not raise the issue of shared responsibility below, and, therefore, failed to preserve this point for resolution on appeal.

The parties were divorced in 1980, and appellee was given custody of their two minor children. The former husband was required to pay $175.00 per month child support. At the time of the divorce, appellant had a bachelor's degree in education and had taught school for two years. He had also worked in law enforcement for five years and had been self-employed with a lawn service. Shortly after the divorce, appellant remarried and moved to Georgia, where he obtained a law degree and then twice took and failed the bar examination. While attending law school, he went into the painting business to supplement his income. At the time of the final hearing he was working as a painting contractor. He stated that he had never earned more than $11,000 in actual income per year following the divorce.

Since 1981, appellee has primarily been a homemaker. She worked in an interior-decorating shop between 1981 and 1982, a t-shirt shop between 1982 and 1983, and at the Central Florida Zoo in 1987. Appellee stated in an interrogatory answer that she had "completed training for interior decorating and work as a travel agent."

In February 1989, appellant filed a petition for modification of the final judgment, seeking a change of custody. Appellee filed a counter-petition to modify child support, requesting an increase in child support. At the final hearing, a mutually agreed-upon psychologist who had conducted psychological evaluations of the parties and their children testified that the children were happy and well-adjusted living with the former wife, and that a change of custody was not recommended. After appellant had rested his case regarding the change of custody issue, appellee moved for a directed verdict on the grounds that husband had failed to establish either a substantial change in circumstances, or that it was in the best interests of the children to modify custody. The court granted the motion. Then, without a further motion by appellee, and without hearing any testimony by either party, the court decided the child-support issue as well.

In so doing the court noted that the psychologist testified that the former husband had informed him he made about $18,000 gross the previous year. Based upon this testimony the court made the following finding:

I think Mr. Thalgott was candid with Dr. Poetter when he said that he earned approximately $18,000 a year. If not, the law of Florida allows me to [impute] income to Mr. Thalgott. Certainly, with his education and background and experience, that $18,000 a year is certainly an income that would be minimum for somebody of his stature to earn.

The judge therefore attributed income of $18,000 per year to appellant. He also concluded that there was no good reason for the former wife not to work, and consequently imputed an income of $600 a month to her. ¹ The court then determined the parties' total combined net monthly income, including the imputed income amounts, to be $2,100. Pursuant to Section 61.30(6), Florida Statutes (1989), the parties' combined monthly income required child support payments of $709. The former husband's share of the total was found to be 70 percent, or $496. Because appellee was not employed, the judge ordered appellant to pay her attorney's fees in the amount of $6,621.55.

The primary difficulty that we have with the court's order increasing child support is that the former husband was given no opportunity below to develop the arguments he makes now on appeal. Among other things, appellant argues that appellee has received a steady source of income from her parents during the past eight years which should have been taken into account as part of her income. Under Section 61.30(2)(a)13, Florida Statutes (1989), income includes "[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses." In an interrogatory propounded to the former wife, appellant made the following request: "List expenses, allowances or in-kind payments that have been provided by your parents in the last eight years." As her answer, appellee provided a list of household expenses paid by her parents between 1983 and 1988, which averaged approximately $20,000 per...