RICHARD R. CASELLA, JR., APPELLANT,
v.
CHERYL D. CASELLA, APPELLEE
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Richard Casella appeals the trial court's amended final judgment dissolving his marriage to Cheryl Casella, challenging the imputed income amounts and resulting alimony and child support obligations. The appellate court found the alimony and child support award of approximately $1,824 per month (70% of the former husband's net income) to be excessive and reversed and remanded for recalculation.
The court reversed and remanded the case, finding the alimony and child support award excessive. Although each case must be decided on its individual facts, an award constituting approximately 70 percent of a party's net income clearly exceeds reasonable bounds and constitutes an abuse of discretion.
[1] An appellate court generally presumes the correctness of a trial court's decision, and the burden is on the appellant to demonstrate reversible error.
[2] The failure to provide a transcript or a proper substitute thereof is usually fatal to an appeal.
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Join FLexlaw to unlock all legal intelligence“The award is approximately 70 percent of the former husband's net income and clearly excessive.”
Establishes the court's finding that the support award burden was excessive and constituted an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe trial court initially awarded the former husband an imputed gross income of $30,000 and the wife no income. After the former husband's motion for …
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POLEN, Judge.
Appellant, former husband, seeks review of the trial court’s amended final judgment of dissolution of marriage. After rendering of the final judgment, in response to the former husband’s motion for rehearing and after hearing argument, the trial court, while denying the motion for rehearing, entered an amended final judgment that differed significantly from the final judgment. The final judgment allotted the former husband an imputed gross income of $30,000 and the wife no income. The amended judgment allotted the former husband an imputed gross income of $40,000 and the former wife an imputed income of $12,000. Both judgments required the former husband pay approximately $1824 per month in alimony and child support. The former husband alleges error in the-amount of child support and the amount of alimony awarded. We agree and reverse and remand.
As a threshold issue we note the failure to have a court reporter present at either the final hearing or during arguments on the motion for rehearing. Although several exhibits that were introduced into evidence have been submitted to this court, we have no transcript of the proceedings below for review. The decision of the trial court comes to an appellate court clothed in a presumption of correctness and the burden is on appellant 'to demonstrate reversible error. Therefore, the failure to provide either a transcript or proper substitute for one, such as a reconciliation of the facts by the parties and trial court judge, is usually fatal. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla.1979).
However, Applegate is not controlling as we find reversible error on the face of the amended judgment alone. Even in light of an imputed $40,000 income, deducting the $1824 per month alimony and child support payment from an appproximate $2600 take-home pay would leave the former husband with approximately $800 a month on which to live. The award is approximately 70 percent of the former husband’s net income and clearly excessive. Although we base this decision on Thomas v. Thomas, 418 So. 2d 316 (Fla. 4th DCA 1982), this is not to say that an award amounting to any particular percentage of a party’s income forms a bright-line rule resulting in a finding of an excessive award and an abuse of discretion. Each case’s resolution must rest on its individual facts. We affirm the dissolution of marriage but reverse and remand for proceedings not inconsistent with this opinion.
HERSEY, C.J., and GLICKSTEIN, J„ concur.
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Esaw v. Esaw, 965 So. 2d 1261 (Fla. 2d DCA 2007)…quoting Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979)). The appellant has the burden of providing a proper record to the reviewing court, and the failure to do so is “usually fatal” to the appellant’s [*1265] claims. Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). Without such a record, it will ordinarily be impossible for the appellant to establish that an asserted error is harmful. In Guida, where we reversed for insufficient findings, the court made a passing reference to the abs…
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Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994)…and the trial court, is fatal because, in the absence of a transcript, the appellate court is unable to evaluate allegations that error exists in the trial court’s findings but, instead, must presume such findings to be correct. Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). Accord Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla.1979); Fenner v. Fenner, 599 So. 2d 1843, 1345 (Fla. 4th DCA), rev. denied, 613 So. 2d 3 (Fla.1992); Herbert v. Herbert, 304 So. 2d 465, 466 (Fla.…
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Bartolotta v. Bartolotta, 687 So. 2d 1385 (Fla. 4th DCA 1997)…erits is proper. Hirsch v. Hirsch, 642 So. 2d 20 (Fla. 5th DCA 1994); Fenner v. Fenner, 599 So. 2d 1343 (Fla. 4th DCA), rev. denied, 613 So. 2d 3 (Fla.1992). Thus, we proceed on the assumption the trial court’s findings are true. Casella v. Casella, 569 So. 2d 848 (Fla. 4th DCA 1990). While a custody order should not be disturbed absent abuse of discretion, a trial court has far less discretion in modifying a custody order than in making the original determination. E.g., Smoak v. Smoak, 658 So. 2d 568 (Fla.…
Previewing 3 of 42 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pitcher v. Schneider (Fla. 5th DCA 2018)
- Albert v. Applegate et ux., 377 So. 2d 1150 (Fla. 1979)
- Banks Dixon Thomas v. Thomas, 418 So. 2d 316 (Fla. 4th DCA 1982)