RANDY W. MCLAUGHLIN, APPELLANT,
v.
TINA RAE DEBORD, APPELLEE

Fla. 4th DCA | 2009-06-24
No. 4D08-2253
GROSS, C.J., and WARNER, J., concur.
14 So. 3d 1222 Florida District Court of Appeal, Fourth District (2009) Positive Treatment
Cited by 1 case

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Synopsis

The Florida Fourth District Court of Appeal reviewed a paternity judgment, finding that the father's challenges to child support calculations and attorney's fees were premature. The court reversed the denial of the father's attorney's fees, remanding for further consideration, while affirming other aspects of the judgment.


Holding

The father's challenges to the child support calculations were premature because the trial court ordered further proceedings to finalize the figures. The denial of the father's attorney's fees was also premature and is reversed. The father's argument regarding the "implicit award" of primary custody to the mother was without merit.


Headnotes

[1] An appeal of an attorney's fee award is premature when the trial court explicitly states that the award is subject to meeting further criteria.

[2] A trial court's denial of a party's claim for attorney's fees is premature if the court has not yet made a final determination on the matter.

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Key Quotes

“Most of the issues he raises are premature and not ripe for appellate review.”

Establishes the court's primary reason for its decision on several of the father's arguments.

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Facts & Procedural History

Following a cohabitation period, a child was born. The father filed a petition for paternity, seeking shared parental responsibility and primary resid…

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Opinion of the Court
CIKLIN, J.

CIKLIN, J.

Appellant, Randy McLaughlin (“father”), appeals a final judgment of paternity which he asserts, among other things, improperly denied his request for attorney’s fees and ordered child support based on incorrect income figures. Most of the issues he raises are premature and not ripe for appellate review.

The father and Appellee, Tina Rae Debord (“mother”), cohabited from December 2005 to May 2007 during which time a child was born to the couple. In May 2007, the father left the home and filed a petition for determination of paternity, asking for shared parental responsibility and that he be designated the primary residential parent.1 The mother filed a counterpetition and asked that the primary physical residence be with her. Following a final hearing, the trial court entered its (1) Final Judgment of Paternity and (2) Supplemental Findings on Final Judgment of Paternity and ordered shared parental responsibility for the parties’ minor child and required compliance with a “timesharing schedule.” The court’s order indicated that the primary residential parent was “undesignated.” During the final hearing the father orally requested rotating custody but the trial court acknowledged in its final judgment that there had been no claim for rotating custody pled by the father.2

Additionally, the trial court ordered the parties to pay proportional child support and specifically ordered the father to pay retroactive child support from October 1, 2007, through the date of the final judgment. Based upon child support guidelines worksheets submitted by the parties, the court found the mother’s annual income to be $118,020 and the father’s annual income to be $89,265. However, the court further held, “Counsel for Mother/Respondent shall complete and provide to the Court within (7) days a child support guideline worksheet based on wage information in the party’s financial affidavits, health insurance and timesharing findings in this judgment.” Finally, the court granted the mother’s claim for attorney’s fees and denied the father’s attorney fee claim, but stated that the award of attorney’s fees to the mother was “subject to meeting criteria in Chapter 61.”

The father now appeals and argues that the trial court abused its discretion'when it *1224“implicitly awarded primary custody of the minor child” to the mother “without making even minimum findings pursuant” to Florida law. We find this argument to be without merit and affirm.

The father further contends that the trial court erred when it denied his request for attorney’s fees and “improperly awarded attorney’s fees to the mother.” As to the father’s appeal of the attorney’s fee award to the mother, we believe that the father’s appeal is premature because the court stated that any award was “subject to meeting the criteria in Chapter 61.” Only after a further hearing will the parties be able to assess the legal sufficiency of such an award. We take this opportunity to caution the trial court that in determining an award of attorney’s fees, it should consider the provisions of section 742.045, Florida Statutes and the factors discussed in Rosen v. Rosen, 696 So.2d 697 (Fla.1997). It is also for this reason that the trial court’s outright denial of the father’s claim for attorney’s fees is premature. As such, that portion of the lower court’s order is reversed.

The father also argues on appeal that the trial court abused its discretion when it ordered child support amounts to be calculated based upon what the father claims are erroneous findings as to the gross incomes of the parties. The father points out that the court found the mother’s income to be $118,020 which, he contends, represented the mother’s 2007 income. He asserts that the court should have based its calculation on the income listed on the mother’s financial affidavit at the time of the final hearing, which reflected income of $10,765 per month or $129,180 annually. We believe this issue is also premature in that the trial court ordered “Counsel for the Mother/Respondent shall complete and provide to the Court within (7) days a child support guideline worksheet based on wage information in the party’s financial affidavits, health insurance and timesharing findings in this judgment.” Clearly the trial court intended for there to be further consideration of this matter and there is no indication that the trial court will accept the calculation that has yet to be presented by counsel for the mother.

We have considered the retroactive child support issue raised by the father and find that it has no merit.3

Reversed in part and remanded for further proceedings consistent with this opinion.

GROSS, C.J., and WARNER, J., concur.


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