RICHARD C. SILVER, APPELLANT,
v.
JOAN SILVER, APPELLEE
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In this dissolution of marriage appeal, the Fourth District Court of Appeal addressed whether the trial court properly calculated child support without deducting the father's alimony obligation from his gross income, and whether an antenuptial agreement can completely waive attorney's fees. The court found merit in the father's child support calculation argument and the mother's attorney's fees argument, reversing and remanding on both issues.
The trial court erred by failing to deduct the father's alimony obligation from his gross income when calculating child support, requiring recalculation of child support based on net income. Additionally, an antenuptial agreement waiving attorney's fees cannot be applied conclusively; the court must consider both the contract provisions and the parties' financial need and ability to pay.
[1] A trial court must deduct spousal support paid pursuant to a court order from gross income when calculating child support.
[2] An antenuptial agreement waiving attorney's fees in a dissolution action cannot conclusively determine fees for the period prior to dissolution.
Previewing 2 of 3 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“one of the deductions from gross income shall include "[s]pousal support paid pursuant to a court order from a previous marriage or the marriage before the court."”
Establishes the statutory requirement that alimony obligations must be deducted from gross income before calculating child support.
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Join FLexlaw to unlock all legal intelligenceRichard and Joan Silver were divorcing parties subject to an antenuptial agreement. The trial court calculated child support based on the father's gro…
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PER CURIAM.
Appellant/former husband, Richard Silver, raises four points in his appeal and appellee/former wife, Joan Silver, raises one point in her cross-appeal of the Final Judgment of Dissolution. We find merit in one of the former husband’s issues on appeal and affirm as to the others. We also find merit in the former wife’s cross-appeal.
The former husband argues that before calculating child support, the trial court did not deduct from his gross income the alimony obligation payable to the former wife as required by section 61.30(3)(g), Florida Statutes (2002).1 That section provides that one of the deductions from gross income shall include “[sjpousal support paid pursuant to a court order from a previous marriage or the marriage before the court.” Therefore, it is necessary for the trial court to recalculate the amount of child support based upon each parent’s net income. In order to determine net income, the former husband is entitled to exclude the amount of his alimony obligation from his gross income. See Weiser v. Weiser, 782 So. 2d 986 (Fla. 4th DCA 2001).
In her cross-appeal, the former wife asserts that the trial court abused its discretion in denying her request for attorney’s fees. The trial court determined that pursuant to the parties’ antenuptial agreement, the parties were responsible for their own respective attorney’s fees.2 The former wife now argues that an ante-nuptial agreement cannot waive all attorney’s fees and the court must consider both the agreement-and the financial resources of both parties as required by section 61.16, Florida Statutes (2002).
In Appelbaum v. Appelbaum, 620 So. 2d 1293 (Fla. 4th DCA 1993), this court held, in a case determining whether to award' attorney’s fees to a spouse in a dissolution action involving a waiver of attorney’s fees in an antenuptial agreement, that:
This [waiver of alimony, suit money, etc.] cannot be conclusively done for the period prior to dissolution. The contract provisions in this additional respect during the separation, are to be given consideration but are to be considered together with all. other pertinent conditions of. need [and] ability to pay....
Thus, the court must consider both the contract provisions and the question of need and ability to pay.
Id. (quoting Belcher v. Belcher, 271 So. 2d 7, 10 (Fla.1972)(emphasis in original)).
Therefore, we reverse the denial of the former wife’s request for attorney’s fees and remand for consideration of the former wife’s request consistent with this opinion. We also remand for recalculation of the child support to be paid by the former husband. We affirm the final judgment in all other respects.
REVERSED AND REMANDED.,
WARNER, POLEN and HAZOURI, JJ., concur. . The trial court properly included the alimony as income to the former wife as required in section 61.30(2)(a)9. Florida Statutes (2002).
. In the final judgment, the trial court awarded the former wife all of the temporary attorney’s fees she incurred in pursuing and obtaining temporary relief due to the former husband's breach of his pre-petition financial obligations under the antenuptial agreement.
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George v. George, 93 So. 3d 464 (Fla. 2d DCA 2012)…. 3d at 45. The trial court should explain how it determined the amount of those deductions. The trial court is also required to exclude from the former husband’s gross income the amount of alimony he is required to pay, see, e.g., Silver v. Silver, 898 So. 2d 145, 146 (Fla. 4th DCA 2005), which in this case is $8300. And the trial court is also required to consider the former husband’s own reasonable and necessary living expenses. See generally Nadrich v. Nadrich, 936 So. 2d 15, 18 (Fla. 4th DCA 2006). It is…
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Randy v. Heysek, 48 So. 3d 877 (Fla. 2d DCA 2010)…e husband’s child support obligation by failing to deduct the amount of permanent periodic alimony payments that he made to the wife from his monthly income); Finney v. Finney, 995 So. 2d 579, 581 (Fla. 1st DCA 2008) (noting same); Silver v. Silver, 898 So. 2d 145, 146 (Fla. 4th DCA 2005) (noting same); Calderon v. Calderon, 730 So. 2d 400, 402 (Fla. 5th DCA 1999) (noting same). On remand, the trial court must recalculate the child support award and adjust the amended income deduction order to reflect the cor…
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Mercado v. Liubov S. Mercado (Fla. 2d DCA 2021)…pport was sufficiently implicit in trial court's final judgment, even though not expressly stated). As such, they should have been taken into account when determining the parties' incomes for purposes of setting child support. See Silver v. Silver, 898 So. 2d 145, 146 (Fla. 4th DCA 2005) ("[I]t is necessary for the trial court to recalculate the amount of child support based upon each parent's net income. In order to determine net income, the former husband is entitled to exclude the amount of his alimony o…
Authorities Cited
- Annabelle G. Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972)
- Weiser v. Weiser, 782 So. 2d 986 (Fla. 4th DCA 2001)
- Kamal Morcos v. A.M.I.S.U.B. N. Ridge Hosp., Inc., 620 So. 2d 1293 (Fla. 4th DCA 1993)
- Appelbaum v. Appelbaum, 620 So. 2d 1293 (Fla. 4th DCA 1993)