Tinoco v. Lugo

• Decision Date: 15 July 2022
• Docket Number: 2D21-1130
• Citation: 342 So.3d 845
• Parties: Miguel TINOCO, Appellant, v. Savannah Leigh LUGO, Appellee.
• Court: Florida District Court of Appeals

342 So.3d 845

Miguel TINOCO, Appellant,

v.Savannah Leigh LUGO, Appellee.

No. 2D21-1130

District Court of Appeal of Florida, Second District.

July 15, 2022

Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.

Debra J. Sutton of Sutton Law Firm, Bartow, for Appellee.

KHOUZAM, Judge.

Miguel Tinoco (the Father) challenges several rulings relating to child support and attorney's fees set forth in a final order on his petition to modify the dissolution of his marriage to Savannah Leigh Lugo (the Mother). Despite the trial court's considerable efforts to resolve this particularly contentious litigation, we must reverse in part and remand for further proceedings to correct multiple related errors.

BACKGROUND

Following the parties’ 2014 dissolution, the Father fell well behind in his child support obligations, developing a five-figure arrearage that was reduced to a "Judgment/Certificate of Delinquency" in 2016.

In 2018, the Father filed a petition for modification, seeking in part to modify timesharing and child support. Ultimately, in 2020, the parents stipulated that the Father would acquire majority timesharing, which the court acknowledged is "perhaps exclusive[ ]" and is expected to be permanent. But a variety of financial and other issues still remained, primarily involving child support. After a hearing, the trial court issued the order on appeal, in which it attempted to resolve all pending issues between the parties.

In the order, the court terminated the Father's monthly child support obligation, retroactive to the date the child began residing with him. Concomitantly, the court imposed a monthly child support obligation upon the Mother, retroactive to that same date.

The court ruled, however, that due to the Father's substantial arrearage, the Mother need not pay any of her monthly child support obligation until the arrearage is fully offset. Given the size of the arrearage, there is no dispute that, under this ruling, she would not have to make any child support payments for years.¹

Other than granting the Father an unspecified amount of fees for having to bring a certain motion in 2018, the trial court issued a blanket denial of both parties’ requests for attorney's fees. Although the trial court made no findings about the parties’ respective net incomes and the parties disagree about some of the financial particulars, it appears generally undisputed that the Mother's economic circumstances are superior to the Father's.

ANALYSIS

The Father challenges various rulings in the order on appeal, including the child support arrearage offset mechanism, the child support award itself, the attorney's fees ruling, the failure to attach a child support guidelines worksheet, and the retroactivity ruling. We address each in turn.

Offset of Child Support Arrearage

In the primary issue on appeal, the Father admits he has a substantial child support arrearage, but contends the trial court erred by offsetting 100% of the Mother's new child support obligation against that arrearage. Although the trial court has discretion in directing the repayment of child support arrearages, including by offset where appropriate, the particular facts of this case require reversal and remand for further proceedings to ensure that the child's continuing support needs will be met.

"Child support ‘is not a requirement imposed by one parent on the other; rather it is a dual obligation imposed on the parents by the State.’ " Serio v. Serio , 830 So. 2d 278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen , 377 So. 2d 798, 800 (Fla. 1st DCA 1979) ). Because "child support is a right that belongs to the child," the trial court has a duty to ensure that child support obligations are appropriate and serve the child's best interests. Lancaster v. Lancaster , 228 So. 3d 1197, 1198 (Fla. 1st DCA 2017) ; see also Wendel v. Wendel , 852 So. 2d 277, 285 (Fla. 2d DCA 2003).

As relevant here, "set offs against support obligations are permitted ‘in those limited circumstances where th[e requesting] party can show "compelling equitable criteria and considerations" justifying such set off.’ " Marlowe v. Marlowe , 123 So. 3d 1194, 1196 (Fla. 1st DCA 2013) (quoting Waldman v. Waldman , 612 So. 2d 703, 704 (Fla. 3d DCA 1993) (quoting Chappell v. Chappell , 253 So. 2d 281, 287 (Fla. 4th DCA 1971) )). As this court has explained, "within the confines of the parents’ financial capability, a trial court's paramount concern in matters of this kind is to protect the economic welfare of the child, not to balance through set-off a creditor-debtor relationship." State, Dep't of Health & Rehab. Servs. v. Behnke-Coolidge , 598 So. 2d 293, 294 (Fla. 2d DCA 1992).

Applying these principles, courts have disapproved child support offsets that imperil the ongoing financial support of the child. For example, in Marlowe , although the First District generally approved of offsetting past child support overpayments against future obligations, it expressly directed the trial court on remand to "cap the amount to be deducted from the former husband's future child support obligations as offset for his retroactive child support overpayments. This is to ensure that the children's continuing support needs will be met, while simultaneously amortizing the sum of child support overpayments owed to the former husband." 123 So. 3d at 1196 (emphasis added); see also Behnke-Coolidge , 598 So. 2d at 294 (reversing and remanding child support obligation court had reduced to less than 25% of the guidelines amount presumably as "a monthly credit ... toward the reduction of his arrears in light of his current custody and maintenance of the child").

The parties have not identified, nor have we located, any Florida appellate decision approving a complete offset of child support arrearages resulting in years of zero ongoing support for a minor child living with the less financially capable parent. In support of the offset, the trial court cited Artuso v. Dick , 843 So. 2d 942 (Fla. 4th DCA 2003), in which the Fourth District affirmed an offset of child support arrearages as within the court's discretion.

But in Artuso , both parties had competing child support arrearages in comparable amounts, such that "[r]ather than have each party have an arrearage due, the court ‘washed out’ each arrearage." Id. at 945. That ruling was reasonable in the context of those opposing arrearages, but is fundamentally different from the single-arrearage circumstance presented here. There also is no suggestion in the Artuso opinion that the offset there resulted in years of zero prospective support to the custodial parent, as here.

Here, the trial court failed to specify any " ‘compelling equitable criteria and considerations’ justifying such set off." Marlowe , 123 So. 3d at 1196 (quoting Waldman , 612 So. 2d at 704 (quoting Chappell , 253 So. 2d at 287 )). Other than stating that the unspecified amount of the arrearage was "fairly staggering," the trial court simply said its ruling was "[b]ased on the updated financial affidavits provided by both parties, as well as the stipulated Parenting Plan that gave the father the majority of overnights."

Further, as discussed infra , the trial court made no findings about the Father's financial circumstances, other than accepting his stated gross income and rejecting the Mother's argument that he was underemployed. The court made no findings at all about the needs of the child or whether those needs would be met without any monthly support from the Mother for years. Thus, it is not clear that in offsetting the arrearage the court considered "the economic welfare of the child," much less made that its "paramount concern," as required. Behnke-Coolidge , 598 So. 2d at 294.

Under these circumstances, the determination to fully offset the Father's child support arrearage against the Mother's ongoing support obligation must be reversed and remanded for further proceedings. On remand, if the trial court again decides that a setoff is appropriate, then it should specify the " ‘compelling equitable criteria and considerations’ justifying such set off’ " and should consider "cap[ping] the amount to be deducted ... to ensure that the child[ ]'s continuing support needs will be met, while simultaneously amortizing the sum of child support ... owed." Marlowe , 123 So. 3d at 1196 (first quotation quoting Waldman , 612 So. 2d at 704 (quoting Chappell , 253 So. 2d at 287 )).

Financial Findings Underlying Child Support Obligation

Separate and apart from the ruling to offset the full amount of the Father's child support arrearages against the Mother's monthly prospective payments, the Father also challenges the child support obligation itself. He argues both that (1) the trial court failed to make necessary supporting findings about his ability to pay and (2) the amount of his monthly arrearage repayment is excessive. Because the trial court made no findings about the Father's net income or ability to pay, we reverse for further proceedings without reaching the question of whether the amount is excessive.

"In conformance with section 61.30[, Florida Statutes (2016) ], the case law is well-settled that a trial court errs by failing to make findings of fact regarding the parties’ incomes when determining child support." J.A.D. v. K.M.A. , 264 So. 3d 1080, 1083 (Fla. 2d DCA 2019) (internal quotation marks omitted) (quoting M.M. v. J.H. , 251 So. 3d 970, 972 (Fla. 2d DCA 2018) ). This requires findings about the parents’ net incomes, not just their gross incomes. Id. ("The trial court erred by failing to make specific findings concerning each parent's net monthly income and relying only on each parent's gross monthly income.").

Likewise, "[a]lthough the trial court has discretion to determine how child support arrearages will be paid, it must take the paying spouse's ability to pay into account." Galstyan v. Galstyan , 85 So. 3d 561, 565 (Fla. 4th DCA 2012) ; see also Larger v. Diaz , 595 So. 2d...