JOSEPH T. TODESCO, JR., APPELLANT,
v.
JOAN E. TODESCO, APPELLEE
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A husband appealed a final judgment of dissolution in which he was ordered to pay $738 monthly child support plus 75% of unstated health insurance costs, in addition to existing $1,500 monthly alimony obligations to a previous wife. The appellate court reversed, finding the child support award was an abuse of discretion because the cumulative support obligations would leave the husband with only $137 monthly to live on, far below his ability to pay.
The court reversed and remanded, holding that the child support award was an abuse of discretion because it exceeded the husband's present ability to pay. The court also held that health insurance obligations must specify a total financial exposure to limit the liability of the paying spouse in relation to his ability to provide support.
[1] A trial court abuses its discretion by awarding child support and alimony payments that exceed a party's present ability to pay.
[2] A requirement for a spouse to pay for the other spouse's health insurance costs not covered by insurance must specify a total financial exposure to limit liability.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“From this total, he is already obliged to pay $1,500 per month in alimony to a previous wife. A further deduction of $738 in child support leaves him only $137 to live on. Obviously, he cannot do so.”
Establishes the core problem: the cumulative support obligations are impossible to meet and constitute an abuse of discretion.
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Join FLexlaw to unlock all legal intelligenceThe husband has a net monthly income of $2,375. He is obligated to pay $1,500 per month in alimony to a previous wife. The trial court ordered him to …
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PER CURIAM.
The husband appeals a final judgment of dissolution. Besides an equitable distribution, the husband was called upon to pay $738 per month in child support plus 75% of the unstated cost of the child’s health insurance. We reverse.
The husband’s net monthly income is an unchallenged $2,375. From this total, he is already obliged to pay $1,500 per month in alimony to a previous wife. A further deduction of $738 in child support leaves him only $137 to live on. Obviously, he cannot do so.
The court did not impute any income to the husband or find that he had any of his expenses reimbursed from any source. See Garcia v. Garcia, 560 So. 2d 403 (Fla. 3d DCA 1990); Seilkop v. Seilkop, 575 So. 2d 269 (Fla. 3d DCA 1991). Cook v. Cook, 574 So. 2d 281 (Fla. 2d DCA 1991), found that the trial court abused its discretion in awarding support and alimony payments in amounts that exceeded the husband’s present ability to pay. The court’s order entered upon the husband’s modification petition reduced his payments, but not enough. The appellate court noted that if the order was allowed to stand, the husband would be left with $63 per week to support himself and no assets of his own upon which to draw as a source of support. Although the court in Cook was not unsympathetic to the wife’s position, the “evidence simply reveals that the husband’s present employment and lack of resources do not permit this court to affirm the amounts of child support and alimony contained in the trial court’s order.” The Cook court remanded for further proceedings citing Santacroce v. Santacroce, 347 So. 2d 815 (Fla. 2d DCA 1977) and Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980).
With regard to the unstated cost of the child’s health insurance, the court in Oh v. Oh, 570 So. 2d 1030 (Fla. 5th DCA 1990), reversed the section of the final judgment requiring the husband to pay the wife’s medical bills not covered by insurance, noting that such a requirement must specify a total financial exposure “in order to limit the liability of the paying spouse in relation to his or her ability to provide this item of support.”
Additionally, child support guidelines, while helpful, are not to be automatically applied; the court should consider both the needs of the child and the overall financial circumstances of the parties. Hillman v. Hillman, 567 So. 2d 1066 (Fla. 2d DCA 1990); Huff v. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990). Further, while private educational expenses may be awarded as part of child support where they are in accordance with the family’s customary standard of living and are in the child’s best interest, they may be awarded only where the noncustodial parent has the ability to pay for that private school. Wilson v. Wilson, 559 So. 2d 698 (Fla. 1st DCA 1990); Hendry v. Hendry, 340 So. 2d 942 (Fla. 4th DCA 1976). The husband’s financial affidavit, sub ju-dice, filed March, 1990, shows assets of $240,000 and liabilities of $434,352.84, including the $150,000 real estate mortgage (now in default) and we do not believe that the wife presented evidence showing that these valuations were incorrect. Thus, it appears that even though the husband does have some assets, the child support ordered is an abuse of discretion.
This cause is reversed and remanded for further proceedings in accordance herewith.
REVERSED AND REMANDED.
LETTS and DELL, JJ., concur. GLICKSTEIN, C.J., concurs specially with opinion.
GLICKSTEIN, Chief Judge,
concurring specially.
The husband has raised two issues on appeal, the second of which has been addressed by the majority. The first issue, not discussed, is whether the trial court abused its discretion in awarding the wife a twenty-five percent interest in the husband’s interest in a real estate development. We have affirmed that award, albeit without discussion.
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Crowley v. Crowley, 678 So. 2d 435 (Fla. 4th DCA 1996)…ablishes the amount the trier of fact may order as child support in a dissolution proceeding. § 61.30(l)(a), Fla. Stat. (1993). Nevertheless, while helpful, the child support guideline figures are not to be automatically applied. Todesco v. Todesco, 583 So. 2d 774, 775 (Fla. 4th DCA 1991). Accordingly, where appropriate, section 61.30 contemplates the imputation of income to an underemployed parent. Specifically, section 61.30(2)(b) provides: Income shall be imputed to an unemployed or underemployed parent w…
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Angeline Alois v. Alois, 937 So. 2d 171 (Fla. 4th DCA 2006)…ford to spend on private school. See Pollow v. Pollow, 712 So. 2d 1235, 1236 (Fla. 4th DCA 1998) (“Private educational expenses may be awarded only where the non-custodial parent has the ability to pay for that private school.”); Todesco v. Todesco, 583 So. 2d 774, 775 (Fla. 4th DCA 1991) (same). Here, the record reveals that the non-custodial parent has no ability to pay anything toward private school. In sum, the trial court abused its discretion in awarding the former husband child support in the amount o…
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Whight v. Tymme Douglas Whight, 635 So. 2d 135 (Fla. 1st DCA 1994)…n. § 61.-30(l)(a), Fla.Stat. (1993); Glover v. Glover, 601 So. 2d 231 (Fla. 1st DCA 1992). We caution, however, as have our sister courts, that “[t]he child support guidelines, while helpful, are not to be automatically applied,” Todesco v. Todesco, 583 So. 2d 774, 775 (Fla. 4th DCA 1991); Hillman v. Hillman, 567 So. 2d 1066 (Fla. 2d DCA 1990). Accordingly, in determining whether Appellant, as mov-ant, has met her evidentiary burden, the trial court still should consider any additional evidence, as to the chi…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Blum v. Blum, 382 So. 2d 52 (Fla. 3d DCA 1980)
- Garcia v. Sailly Garcia, 560 So. 2d 403 (Fla. 3d DCA 1990)
- Seilkop v. Seilkop, 575 So. 2d 269 (Fla. 3d DCA 1991)
- Segarra v. State, 559 So. 2d 698 (Fla. 3d DCA 1990)
- Hillman v. Hillman, 567 So. 2d 1066 (Fla. 2d DCA 1990)
- Hendry v. Hendry, 340 So. 2d 942 (Fla. 4th DCA 1976)
- Cook v. Catharine S. Cook, 574 So. 2d 281 (Fla. 2d DCA 1991)
- Santacroce v. Anne Santacroce, 347 So. 2d 815 (Fla. 2d DCA 1977)
- Anderson Brooks v. State, 556 So. 2d 537 (Fla. 4th DCA 1990)
- Huff v. Norilyn K. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990)