Opinion
No. 2D20-2924.
04-05-2023
J.H.M., Appellant, v. E.A.G., Appellee.
Mark F. Baseman , of Felix, Felix & Baseman, Tampa, for Appellant. Angela D. Flaherty , of Flaherty Law Firm, Sarasota, for Appellee.
Mark F. Baseman , of Felix, Felix & Baseman, Tampa, for Appellant.
Angela D. Flaherty , of Flaherty Law Firm, Sarasota, for Appellee.
LABRIT, Judge.
In this paternity action, J.H.M. (Father) appeals nonfinal orders awarding child support and other relief to E.A.G. (Mother). Because portions of the orders do not comply with the mandates of section 61.30, Florida Statutes (2020), we reverse the orders to the extent they are noncompliant. We find no merit in Father's remaining arguments, however, and we affirm the orders in all other respects.
In 2016, the trial court entered a "Final Judgment of Paternity" that established a parenting plan. The trial court held a final child support hearing years later and rendered an order awarding retroactive child support to Mother for 2016, 2017, 2018, and 2019, and for part of 2020. The order also awarded prospective child support beginning August 1, 2020. Father challenges these awards in this appeal.
Father also challenges the trial court's child support determinations for 2014 and 2015, but his challenge is untimely. The trial court made these determinations in a prior order that the order before us merely reiterated. And "the trial court's repeating the same ruling in [a] later order ... cannot revive an appeal period." Campos v. Campos, 230 So.3d 553, 555 (Fla. 1st DCA 2017); see also Cordero v. Wash. Mut. Bank, 241 So.3d 967, 968 (Fla. 3d DCA 2018) (explaining that obtaining a new order to the same effect as the original does not revive an untimely appeal); Small v. Devon Condo. B Ass'n, 141 So.3d 574, 578 (Fla. 4th DCA 2014) (same).
Section 61.30 governs a trial court's child support determination. It requires a trial court to determine each party's gross income, then calculate each party's net income "by subtracting allowable deductions from gross income." § 61.30(2)-(4). Section 61.30(3) lists the "allowable deductions" a trial court must deduct. They include mandatory union dues, mandatory retirement payments, health insurance payments exclusive of payments for coverage of the minor child, and court-ordered support for other children that is actually paid. § 61.30(3)(c)-(f).
In calculating Father's net income for each year from 2016 through 2020, the trial court did not make any deductions for these expenses. Father argues that this was error, and we agree. Through his financial affidavits and hearing testimony, Father presented evidence of his mandatory union dues, mandatory retirement payments, and health insurance payments. Mother argued against these deductions, but she didn't present any evidence to refute them. Therefore, pursuant to section 61.30(3)(c)-(e), the trial court should have deducted Father's mandatory union dues, mandatory retirement payments, and health insurance payments in calculating Father's net income. See, e.g., Dep't of Revenue ex rel. Shorter v. Amico, 265 So.3d 681, 684 (Fla. 5th DCA 2019) ("[B]ecause the only evidence provided in the trial court shows Father's pension plan payments are mandatory, it was error for the trial court to not allow a corresponding deduction for the same."); J.N.S. v. A.M.A., 194 So.3d 559, 562 (Fla. 5th DCA 2016) (holding that trial court erred in refusing to deduct mother's retirement payments from her gross income where evidence showed that she was a state employee required by law to make retirement payments).
The trial court notably deducted Father's health insurance payments and court-ordered support in its prior order that calculated Father's 2014 and 2015 net incomes. There were no deductions for union dues or retirement payments for those years, presumably because Father did not become a federal employee subject to these mandatory expenses until 2016.
We note, however, that payments for coverage of the parties' minor child, or for any flexible spending or health savings account, are not deductible. See § 61.30(3)(e); Moore v. Moore, 120 So.3d 194, 197 (Fla. 5th DCA 2013).
The trial court also should have deducted Father's court-ordered support for his two children from a previous relationship, as section 61.30(3)(f) requires. "The intent and meaning of section 61.30(3)(f) require no explanation." Dep't of Revenue ex rel. T.L.S. v. S.J.W., 113 So.3d 85, 87 (Fla. 2d DCA 2013). For this deduction to apply, the support must be "court-ordered," and it must be "actually paid." See id.; § 61.30(3)(f). Father presented evidence of both through his financial affidavits, hearing testimony, and a 2014 court order he admitted into evidence. Mother presented a 2016 order from the same court and argued it reduced the amount of Father's court-ordered support. But Mother didn't dispute that a court ordered Father to pay at least some amount of support for his two other children, and she didn't present any evidence to contest Father's showing that he actually paid it. Thus, the trial court should have determined what the amount of court-ordered support was and deducted it under section 61.30(3)(f). Cf. Penalver v. Columbo, 810 So.2d 563, 565 (Fla. 2d DCA 2002) (reversing child support determination where, although the "figures [were] just all over the place" and there was confusion about what the father paid, the trial court should have deducted his health insurance costs and state income taxes as allowable deductions under section 61.30(3)).
The trial court's order suggests that it declined to apply this deduction because the trial court did not believe that Father was candid or forthright with the court on this issue. While the trial court was free to weigh Father's credibility in resolving the parties' dispute over the amount of court-ordered support, the statute does not provide the trial court with discretion to refuse this deduction altogether. See J.A.D. v. K.M.A., 264 So.3d 1080, 1082 (Fla. 2d DCA 2019) ("In determining the child support guideline amount, the trial court must follow the statutory formula set forth by section 61.30."); see also Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) ("[A] trial court's discretion concerning child support is subject to the statutory guidelines set forth in section 61.30."). In short, the trial court should have made the deductions that section 61.30(3)(c)-(f) requires in calculating Father's net income.
Father also challenges the trial court's prospective child support award and argues that it too fails to comply with section 61.30. Under section 61.30(11)(b), a trial court is required to adjust a prospective child support award "[w]henever a particular parenting plan ... provides that each child spend a substantial amount of time with each parent." The statute defines a "substantial amount of time" to mean at least twenty percent of the overnights of the year. § 61.30(11)(b)(8). "Generally, the case law holds that this statutory adjustment is mandatory and that a party need not request it in order for a party to receive its benefit." Emmenegger v. Emmenegger, 135 So.3d 1103, 1106 (Fla. 2d DCA 2013).
In awarding prospective child support, the trial court did not make any adjustments under section 61.30(11)(b). This was error because the parenting plan provides for the child to spend more than twenty percent of the overnights of the year with Father. The trial court should have adjusted the prospective award accordingly under section 61.30(11)(b). See Keeley v. Keeley, 899 So.2d 387, 389 (Fla. 2d DCA 2005) ("[T]he trial court should have adjusted the Former Husband's prospective child support obligation to take into account the substantial amount of visitation time reflected by the visitation schedule."). If, in the future, Father fails to exercise his allotted timesharing, Mother may seek a modification of child support under section 61.30(11)(c). See id.
The parenting plan grants Father timesharing on the second and fourth weekend of every month, and during certain school breaks and holidays. The parties dispute whether this amounts to enough overnight visits to meet the twenty percent threshold. Mother contends that Father gets seventy overnights per year (approximately nineteen percent), while Father contends that he gets more than one hundred overnights (more than twenty-seven percent). This discrepancy is largely due to the parties' disagreement over what constitutes a weekend—two overnights or three. Mother's calculation includes two overnights per weekend, and Father's calculation includes three. The parenting plan governs, and it states that "[o]nce the child begins kindergarten, timesharing shall start on Friday ... until Monday morning." Because the child already began kindergarten, Father is entitled to three overnights per weekend which, when added to his timesharing during school breaks and holidays, is more than twenty percent of the overnight visits per year.
Based on these errors, we reverse and remand for a recalculation of child support. On remand, the trial court shall recalculate Father's net income for each year from 2016 through 2020 by applying the deductions in section 61.30(3)(c)-(f). After making these recalculations, the court shall redetermine the retroactive child support award and the prospective award if appropriate. The trial court also shall adjust the award of prospective support per section 61.30(11)(b) to account for the substantial amount of time the child is to spend with each parent under the parenting plan. We affirm the trial court's orders in all other respects without comment.
Affirmed in part, reversed in part, and remanded.
KELLY and LaROSE, JJ., Concur.