DEBRA EILER, APPELLANT,
v.
GARY EILER, APPELLEE
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The court affirmed the trial court's order on the merits but remanded for further findings regarding child support and attorney's fees.
[1] A court may order child support to be paid from nonrecurring income or assets if recurring income is insufficient to meet the child's needs.
[2] A trial court must make findings regarding whether a child's needs are being met by the current child support amount before considering nonrecurring income or assets.
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Join FLexlaw to unlock all legal intelligenceThe trial court based child support solely on recurring income without determining if the child's needs were met. The trial court also denied the form…
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PER CURIAM.
Although we affirm the trial court’s order on the merits, we remand, nevertheless, because section 61.30(13), Florida Statutes (1996), provides: “If the recurring income is not sufficient to meet the needs of the child, the court may order child support to be paid from nonrecurring income or assets.” The trial court did not make any findings as to whether or not the child’s needs were being met by the child support amount which was based solely on the parties’ recurring income. The trial court is directed to do so on remand because it is not apparent from the record that the child’s needs are being met. If the child’s needs are not being met, it is to consider invading the nonrecurring income or assets of both parties in order to meet the child’s needs.
With respect to the trial court’s denial of the former wife’s attorney’s fees, the trial court’s analysis does not take into account the fact that while former husband claimed his home mortgage as a $108,076 liability, he was receiving payments from the business to pay off this mortgage ($8,840 in 1995). The former husband having loaned to the business approximately $100,000 of the money obtained from the home mortgage, this'repayment to him would offset his home mortgage liability and place him in a financially superior position to the former wife, thus strongly suggesting that the former wife should have received at least a portion of her fees and costs. In considering the relative financial resources of the parties in deciding whether to award fees and costs in a domestic case, the court may consider the non-marital assets of the parties and not just the parties’ incomes. See Chandler v. Chandler, 624 So. 2d 855 (Fla. 4th DCA 1993).
On remand, the trial court is directed to revisit the fee issue by setting forth its findings on the assets and liabilities of the parties. It should then reconsider the relative financial positions of the parties and whether a fee award to the former wife is appropriate.
GLICKSTEIN, PARIENTE and GROSS, JJ., concur.
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Citator
Cited By
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Clayton v. Lloyd, 707 So. 2d 407 (Fla. 4th DCA 1998)…court may order support from a nonrecurring income or asset, it must make a written finding as to “whether or not the child’s needs were being met by the child support amount which was based solely on the parties’ recurring income.” Eiler v. Eiler, 695 So. 2d 870, 871 (Fla. 4th DCA 1997); see also Dyer v. Dyer, 658 So. 2d 148, 150 (Fla. 4th DCA 1995). Once the court determines that the child’s needs are not being met, then the court may invade the nonrecurring income or assets of both parties. Eiler, 695 So.…
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Sotoloff v. Sotoloff, 745 So. 2d 959 (Fla. 4th DCA 1998)…abused its discretion by including the distributions of principal from the trusts in its child support calculations without first making a finding that the child’s needs were not being met based on the parties’ recurring income. See Eiler v. Eiler, 695 So. 2d 870, 871 (Fla. 4th DCA 1997); see also Dyer v. Dyer, 658 So. 2d 148, 150 (Fla. 4th DCA 1995). We also agree with appellant’s argument that the trial court erred when it failed to give him credit for the child support he paid in January, February, and M…
Authorities Cited
- Chandler v. Chandler, 624 So. 2d 855 (Fla. 4th DCA 1993)