CHARLES PRESTON MOSS, APPELLANT,
v.
KIMBERLY LYNN MOSS, APPELLEE
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The Fourth District Court of Appeal affirmed a trial court's award of lump sum alimony to a former wife but reversed the child support award, finding the trial court erred in imputing net income without first imputing gross income and abused its discretion by requiring the former husband to pay child support that exceeded his ability to pay, leaving him only $380 monthly for living expenses.
The trial court erred by imputing net income without first imputing gross income and then deducting allowable deductions as required by statute. The trial court also abused its discretion by awarding child support requiring the former husband to pay an excessive portion of his income without considering his overall financial circumstances and ability to pay.
[1] A trial court errs in imputing net income without first imputing gross income and applying statutory deductions.
[2] A trial court must consider a parent's ability to pay when awarding child support, even when applying statutory guidelines.
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Join FLexlaw to unlock all legal intelligence“the trial court erred when it imputed a net income to the former husband without first imputing a gross income”
Establishes the statutory error in income imputation methodology
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Join FLexlaw to unlock all legal intelligenceIn a dissolution of marriage case, the trial court awarded the former wife a two-acre parcel of land as lump sum alimony and ordered the former husban…
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PER CURIAM.
The former husband, Charles Preston Moss, appeals those portions of a final judgment of dissolution of marriage awarding the former wife a two acre parcel of land as lump sum alimony and awarding the former wife child support. We affirm the award of lump sum alimony to the former wife. We reverse the trial court’s award of child support requiring the former husband to pay $1,336.51 per month out of his $1,720.00 net imputed income as child support.
We initially find the trial court erred when it imputed a net income to the former husband without first imputing a gross income. See § 61.30(2)(a), Fla.Stat. (1991). Although the trial court correctly utilized the imputed net income to calculate the minimum child support need under the guidelines, the trial court should have derived the imputed net income only after taking the allowable deductions from an imputed gross income figure as provided in section 61.30(3), Florida Statutes (1991).
We also find error in the trial court’s award of child support without consideration of the former husband’s ability to pay. In calculating the avrard of child support to the former wife as the custodial parent, the trial court applied the guidelines provided in section 61.30 and concluded that the husband shall bear sixty-one percent of the combined $1,159.00 monthly recommended minimum child support and $1,032.00 monthly day care costs for the parties’ three children. See § 61.30(8), Fla.Stat. (1991). We recognize the trial court must consider the financial needs of the children when calculating child support; however, the trial court has the discretion to deviate from the statutory guidelines after considering a parent’s overall financial circumstances and impose an obligation upon a parent within his ability to pay. See Huff v. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990); Todesco v. Todesco, 583 So. 2d 774 (Fla. 4th DCA 1991). In this instance, the trial court abused its discretion by requiring the husband to contribute an excessive portion of his income to satisfy the child support obligation, leaving him only $380 per month on which to live.
We note the legislature has recently enacted section 61.30(ll)(j), Florida Statutes (1993), which affords the trial court the added discretion to adjust a parent’s share of the statutorily recommended minimum child support award where the guidelines require a parent to pay more than fifty-five percent of his gross income as his child support obligation. We direct the trial court on remand to apply section 61.30(11)© and any other relevant amendments to the child support guidelines provided in section 61.30, Florida Statutes (1993), which took effect on July 1, 1993. See Pelton v. Pelton, 617 So. 2d 714 (Fla. 1st DCA 1992); Reed v. Reed, 597 So. 2d 936 (Fla. 1st DCA 1992).
Accordingly, we affirm the award of lump sum alimony and reverse that part of the final judgment of dissolution of marriage pertaining to child support payments and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, C.J., and GLICKSTEIN and GUNTHER, JJ., concur.
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Thilem v. Thilem, 662 So. 2d 1314 (Fla. 3d DCA 1995)…olley v. Polley, 588 So. 2d 638 (Fla. 3d DCA 1991). Foremost, the trial court erred in failing to distinguish gross from net income, which is crucial to properly applying the guidelines. See § 61.30(2)(b), (6), (9), Fla. Stat. (1993); Moss v. Moss, 636 So. 2d 164 (Fla. 4th DCA 1994). In imputing income, the trial court also failed to consider each parent’s full and present earning capacity as reflected by the record. See § 61.30(2)(b), Fla.Stat. (1993); Brooks v. Brooks, 602 So. 2d 630 (Fla. 2d DCA 1992); Gi…
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Theiry Guerin v. DiROMA, 819 So. 2d 968 (Fla. 4th DCA 2002)…s the trial court has discretion to order such protective insurance of a child support obligation only when the circumstances show a necessity for such protection and then only within the obligor’s ability to provide such security. See Moss v. Moss, 636 So. 2d 164 (Fla. 4th DCA 1994) (while trial court must consider financial needs of children when calculating child support, court has discretion to deviate from statutory guidelines after considering parent’s overall financial circumstances and impose obligati…
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Dyer v. Dyer, 658 So. 2d 148 (Fla. 4th DCA 1995)…ecify how much of the earnings is actual and how much is imputed. As we are remanding for further findings on other issues, we also direct the court to specify how much of his earnings is actual and how much gross earnings are imputed. Moss v. Moss, 636 So. 2d 164 (Fla. 4th DCA 1994).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pelton v. Pelton, 617 So. 2d 714 (Fla. 1st DCA 1992)
- Todesco v. Todesco, 583 So. 2d 774 (Fla. 4th DCA 1991)
- Reed v. Reed, 597 So. 2d 936 (Fla. 1st DCA 1992)
- 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)