ANDREA D. SWOR, APPELLANT,
v.
G. MICHAEL SWOR, M.D., APPELLEE
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In this post-divorce child support dispute, the Florida appellate court affirmed the trial court's imposition of child support on the former wife but reversed and remanded the calculation of retroactive child support because the trial court erroneously included a period during which the former wife did not receive alimony payments from the former husband.
The court affirmed the imposition of child support on the former wife but reversed the retroactive child support award because it was erroneously calculated to include the period from August 31 to October 16, 2007, when the former wife received no alimony payments and therefore should not have been included in determining her retroactive support obligation.
[1] A court must consider the obligor's actual income during the retroactive period when determining the amount of a retroactive child support award.
[2] It is error to include sums due for a period in a retroactive child support calculation when the obligor did not receive alimony payments during that specific period.
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Join FLexlaw to unlock all legal intelligence“the amount of retroactive child support awarded was erroneously calculated”
Statement of the appellate court's holding that the trial court made a mathematical or legal error in determining the retroactive support amount
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Join FLexlaw to unlock all legal intelligenceAndrea and G. Michael Swor were divorced in 2000 with six minor children originally residing with Andrea. Through subsequent modifications, Michael be…
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Andrea Swor, the Former Wife, and G. Michael Swor, the Former Husband, were divorced in 2000. At that time, they had six minor children who originally resided with the Former Wife. Since the entry of the final judgment of dissolution of marriage, the parties have engaged in continuous litigation. As a result of several modifications of the final judgment, the Former Husband was designated the primary residential parent of the parties’ three remaining minor children. The Former Husband then filed a motion for child support from the Former Wife. The proceedings on the Former Husband’s motion were fraught with complications, including the involvement of two different magistrates in addition to the trial court judge. The Former Wife now challenges the final order imposing child support and, in doing so, raises seven different procedural and evidentiary challenges. We affirm the ruling of the trial court on six of these issues without comment; however, we reverse on the amount awarded for retroactive child support and remand for further consideration.
The final judgment of dissolution required the Former Husband to pay to the Former Wife the sum of $4500 a month in alimony. The record reveals that the Former Husband did not pay his alimony obligations from November 16, 2006, through October 16, 2007, and that the trial court entered a final judgment against the Former Husband for the unpaid $54,000 plus interest in March 2008.1 The record further indicates that as of the time of the magistrate’s calculation of the Former Wife’s retroactive child support obligation, the final judgment against the Former Husband for the alimony arrearage remained unpaid.
On June 24, 2009, the magistrate entered her decision and recommendations regarding child support. Included in the recommendations was the imposition of a retroactive child support obligation against the Former Wife for the period of August 31, 2007, through May 31, 2009, at the rate of $2626 per month. This calculation was based on the Former Wife’s receipt of the $4500 a month alimony and the imputation of income to the Former Wife that also was recommended by the magistrate. The total of the retroactive child support award against the Former Wife was $55,146. These recommendations were adopted by the trial judge and formed the basis of the child support order entered October 12, 2009.
We agree with the Former Wife that the amount of retroactive child support awarded was erroneously calculated. Although the magistrate recommended that the Former Wife’s child support obligation should be retroactive to August 31, 2007, the record demonstrates that the Former Wife did not receive alimony payments from the Former Husband for the period spanning August 31 to October 16, 2007. As such, it was error to include the sums due for this time period in the calculation that was the basis for the amount of retroactive child support awarded in the final judgment. See § 61.30(17)(a), Fla. Stat. (2009) (requiring the court to 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). Accordingly, we must reverse the award of retroactive child support and remand to the trial court to recalculate the amount to be awarded. In all other respects, the final order is affirmed.
*827Affirmed in part, reversed in part, and remanded with instructions.
SILBERMAN and CRENSHAW, JJ., Concur.
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Chamberlain v. Eisinger, 159 So. 3d 185 (Fla. 4th DCA 2015)…s erroneous where child support worksheets reflect that former husband paid alimony every month, thereby increasing former wife’s income and decreasing former husband’s, where former husband had not paid alimony consistently); see also Swor v. Swor, 56 So. 3d 825, 826 (Fla. 2d DCA 2011) (where former husband failed to pay alimony, “it was error to include the sums due for this time period in the calculation that was the basis for the amount of retroactive child support awarded in the final judgment”). This…
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Ashton J. Finch v. Dep't OF Revenue, 65 So. 3d 1150 (Fla. 3d DCA 2011)…port obligation. See § 61.80(17)(a) (providing that the court 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 obligati…
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Marlowe v. Wally R. Marlowe, 123 So. 3d 1194 (Fla. 1st DCA 2013)…husband’s alimony payments were over $12,000 in arrearage. Because the court ignored the unpaid alimony payments, there was an erroneous $600 reduction in the former husband’s income and a $600 increase in the former wife’s income. See Swor v. Swor, 56 So. 3d 825, 826 (Fla. 2d DCA 2011). We find no abuse of discretion, however, in the trial court’s termination of child support upon a child reaching the age of 18, instead of upon high school graduation. Further, set offs against support obligations are perm…
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