ROBERT GRANT CAMERON, APPELLANT,
v.
CARLENE EVAN DICKEY, N/K/A CARLENE EVAN ALLEN, APPELLEE

Fla. 5th DCA | 2004-04-30
No. 5D03-2037
THOMPSON and PLEUS, JJ., concur.
871 So. 2d 1022 Florida District Court of Appeal, Fifth District (2004) Positive Treatment
Cited by 6 cases

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Synopsis

Cameron appeals a paternity judgment challenging child support, visitation, and other provisions. The appellate court affirmed the visitation schedule and denial of rehearing but reversed the retroactive child support calculation, finding the trial court improperly applied imputed income rather than actual income for the retroactive period.


Holding

The court affirmed the visitation schedule and denial of rehearing but reversed the retroactive child support award. Attorney negligence claims are not cognizable on appeal. The trial court did not abuse its discretion in ordering supervised visitation. However, the trial court erred in calculating retroactive support by applying imputed income rather than Cameron's actual income during the retroactive period, requiring recalculation.


Headnotes

[1] Claims of attorney negligence are not cognizable on appeal.

[2] A trial court's visitation schedule is presumed to be within its discretion absent a record demonstrating otherwise.

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Key Quotes

“Pursuant to section 61.30(17)(a), Florida Statutes, however, retroactive support is awardable according to the guidelines "subject to the obligor's demonstration of his or her actual income ... during the retroactive period."”

Establishes the controlling statute requiring retroactive support be calculated using actual income, not imputed income

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Facts & Procedural History

Cameron filed a paternity petition in November 2001 regarding his son born in March 2001. Cameron worked as a groundskeeper earning $7.00/hour with mo…

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Opinion of the Court
GRIFFIN, J.

GRIFFIN, J.

Appellant, Robert Grant Cameron, III, [“Cameron”], appeals the support and visitation provisions of the trial court’s final judgment of paternity. Appellant is pro se on appeal. Construing his brief liberally, he raises four issues on appeal: (1) his attorney was negligent; (2) the trial court erred in setting the amount of child support; (3) the trial court abused its discretion in denying his motion for rehearing and not reconsidering the final judgment; and (4) the trial court erred in ordering supervised visitation.

On November 1, 2001, Cameron filed a petition to determine the paternity of his son, born March 25, 2001. Cameron requested that he be designated the primary residential parent because the mother had been unwilling to allow visitation, and that the court allow visitation from 8:00 p.m. Sunday to 8:00 p.m. Thursday because of his work schedule. Cameron filed a family law financial affidavit stating that he worked as a groundskeeper for a golf course, his rate of pay was $7.00 per hour, and his gross monthly wages were $1,200, with a net monthly income of $906.

In her answer, Carlene Evan Dickey, the child’s mother, requested that the court designate her as primary residential parent and requested that Cameron’s visitation with the infant be supervised, citing Cameron’s use of illegal drugs and alcohol.

Because Cameron’s appellate issues mostly involve questions of fact, we gave him the opportunity to supplement the appellate record with a transcript of the evidentiary hearing, but he has not done so. Without a record, we have no basis to reverse the trial court’s findings. We can also say that his claims of attorney negligence are not cognizable on appeal, and the trial court’s scheme of accelerating visitation is well within its discretion. The visitation schedule appears to represent a cautious but optimistic view of Cameron’s ability to parent under difficult circumstances, including the mother’s marriage. To his credit, Cameron has completed parenting classes and appears to want to be a positive influence in his son’s life.

It does appear that the provision for child support contains a legal error on its face. The financial affidavit Cameron filed on April 29, 2003, stated that he was then employed by Daytona Auto Dealers and his pay rate was $7.00 per hour. His gross monthly salary was $1,120, with a net monthly income of $888.

The court found that:

The father’s pay stub through March 30, 2003 reflects year-to-date gross wages of $6,304.55 (Exhibit 1), approximately 2,275.00 per month; his amended financial affidavit filed April 29, 2003 reflects gross wages of only $1,120.00 per month, a discrepancy that the father attributes to a back injury he suffered in March 2003. At the time of his amended affidavit, he was working “light duty” and only part-time. He voluntarily left Day-tona Auto Auction in early May 2003. The father testified that he is able-bodied now, but he is not actively seeking full-time employment. He lives with his parents, and his monthly living expenses are quite nominal. He is capable of earning at his March level of $2,275.00 per month, and the court imputes the income to him as required by § 61.30(2)(b), Florida Statutes.

Cameron’s total child' support payment was ordered to be $436.25/month. The court also found that Cameron had not provided support since the couple had separated two months after the child was born and, therefore, awarded retroactive child support in the amount of $10,346.40.

As the trial court explained, the decision to impute income was based on Cameron’s March 30, 2003, pay stub. The court then determined that retroactive support should be ordered and mathematical calculation confirms that it was the imputed income figure that was applied retroactively. Pursuant to section 61.30(17)(a), Florida Statutes, however, retroactive support is awardable according to the guidelines “subject to the obligor’s demonstration of his or her actual income ... during the retroactive period.” It is plain from the record, as well as from the trial court’s own judgment, that Cameron’s actual income during the retroactive period was different from the amount imputed. Retroactive support must be recalculated.

AFFIRMED in part; REVERSED in part; and REMANDED.

THOMPSON and PLEUS, JJ., concur.


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Citator

Cited By

  • Kareff v. Kareff, 943 So. 2d 890 (Fla. 4th DCA 2006)
    …drejack, 839 So. 2d 867, 871 (Fla. 4th DCA 2003) (citing Stanton v. Stanton, 648 So. 2d 1233, 1234 (Fla. 4th DCA 1995)). Whether a trial court’s mathematical computations are correct is a question of law which is reviewed de novo. Cameron v. Dickey, 871 So. 2d 1022, 1023 (Fla. 5th DCA 2004). In determining child support, the trial court calculated a parental net income of $33,000 per month. The court then found that the child support obligation ■ for two children based on this net income figure was $7,685, of…
  • Ashton J. Finch v. Dep't OF Revenue, 65 So. 3d 1150 (Fla. 3d DCA 2011)
    …urt shall consider “the obligor’s demonstration of his or her actual income ... during the retroactive period” when determining the amount of a retroactive child support award); Swor v. Swor, 56 So. 3d 825, 826 (Fla. 2d DCA 2011); Cameron v. Dickey, 871 So. 2d 1022, 1028 (Fla. 5th DCA 2004); see also Salters v. Dep’t of Revenue ex rel. Mobley, 32 So. 3d 777, 778 (Fla. 2d DCA 2010). Therefore, the ALJ’s determination of the retroactive support obligation does not comply with section 61.30(17)(a) and it must be…
  • Dilip Arcot v. Rama Balaraman, 12 So. 3d 861 (Fla. 5th DCA 2009)
    …olution instead of the parties’ actual income during the period that the Husband failed to pay child support. We agree with the Husband that the parties’ actual income must be used to calculate the retroactive child support award. Cameron v. Dickey, 871 So. 2d 1022, 1028 (Fla. 5th DCA 2004). On remand, the court should determine the actual income earned by the parties during the time of the arrearage and utilize those figures in calculating the award of retroactive support. The next area of disagreement conce…

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