HARRY M. KOSLOWSKI, FORMER HUSBAND, APPELLANT,
v.
SUSAN S. KOSLOWSKI, N/K/A SUSAN HARDMAN, FORMER WIFE, APPELLEE

Fla. 1st DCA | 2011-12-30
No. 1D10-4128
WETHERELL and SWANSON, JJ., concur.
78 So. 3d 642 Florida District Court of Appeal, First District (2011) Positive Treatment
Cited by 4 cases

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Synopsis

A former husband appeals a trial court order requiring him to pay for respite nursing care for his severely disabled adult son with Lennox-Gastaut Syndrome. The First District affirmed, holding that respite care expenses constitute extraordinary medical expenses that may be ordered as additional child support when a child has severe ongoing medical needs.


Holding

The court affirmed that respite care expenses for extraordinary medical needs constitute proper adjustments to child support under Florida Statute § 61.30(11)(a)1, which permits adjustments for extraordinary medical expenses. A parent's relocation is merely one factor among others in determining whether a substantial change in circumstances justifies increased child support; it is not a categorical bar to respite care awards when the child has severe ongoing medical needs.


Headnotes

[1] Child support may be adjusted to include extraordinary medical expenses, such as respite nursing care for a child with a severe seizure disorder.

[2] A parent's relocation does not preclude a court from ordering the other parent to contribute to the cost of respite care for a child with special needs.

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Key Quotes

“We do not read Kuttas to hold categorically that a court may only require a parent to pay for respite care for a child when that parent stops exercising his or her visitation. On the contrary, in that case the father's inability to visit the children after relocating out of state was merely one factor among others for the court to consider in deciding whether to increase child support payable to the mother.”

Establishes that a parent's relocation is not a categorical bar to respite care awards and is only one factor among many in child support modification analysis.

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Facts & Procedural History

The parties divorced in 2004 with a shared parental responsibility arrangement. Their eldest son, Alexander, suffers from Lennox-Gastaut Syndrome, a s…

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Opinion of the Court
MARSTILLER, J.

MARSTILLER, J.

The parties to this appeal are the divorced parents of three sons. Pursuant to a mediated settlement agreement, the Final Judgment of Dissolution of Marriage, entered in 2004, provided for shared parental responsibility, with Appellee, the former wife, as the primary residential parent. The two elder sons have reached eighteen years of age. But the eldest, Alexander (“Alex”), suffers from a severe seizure disorder and has been declared mentally incompetent. Appellee, who lives in Seattle, Washington, with her current husband, cares for Alex full time.

The controversy underlying this appeal arose when Appellant, the former husband, refused to pay for respite nursing care for Alex. Appellee successfully *643petitioned the trial court for an increase in child support to cover the expense.1 The court ruled that Appellee is entitled to receive payments for respite care related to her continuing care of Alex; Appellant must pay for ten hours per week and one forty-hour week each year for nursing care for Alex, by a registered nurse, at an hourly rate of $45.00; Appellant must reimburse Appellee $15,871.00 for past respite care expenses; and Appellee must provide Appellant with appropriate documentation (invoices and receipts) of the nursing services Alex receives. Appellant raises several evidentiary challenges to the trial court’s order, and we dispose of them without further comment for there is competent, substantial evidence in the record supporting the court’s findings. Appellant’s primary contention is that the cost of respite care constitutes additional child support the trial court had no legal basis to order. We conclude otherwise and affirm.

Alex suffers from an acute epileptic condition called Lennox-Gastaut Syndrome.2 His condition has deteriorated substantially since the parties divorced. Because of his worsening condition, Appellee stopped working to care for him full time.3 Appel-lee, who is a registered nurse (RN), described Alex’s medical needs as follows. He takes five seizure medications: Depa-kote, Diastat, Dilantin, Lamictal and Ruffi-namide. Neither a nursing assistant nor a licensed practical nurse (LPN) can administer the Dilantin because neither professional is authorized to determine when the drug is needed. Alex experiences up to forty seizures in a day, and at times, he is rendered unable to breathe. Depending on the type and length of a seizure, Alex may need to be given Diastat, which is administered rectally and causes respiratory depression, have his airway opened with a tube placed in his oropharynx, and receive oxygen. Although these procedures generally need not be performed by a healthcare professional, Alex’s condition and status as an unstable patient require a RN’s critical thinking and assessment skills — particularly neurological and respiratory assessment — to determine the best course of treatment when he is experiencing a seizure. In sum, Alex needs medical care from a trained professional above the level of LPN. Appellee currently provides such care, and the trial court ordered respite medical care to relieve her from time to time and to enable her to go on vacation with her husband and other children.

Relying on Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004), Appellant asserts that the trial court here erred as a *644matter of law4 by ordering him to pay for Alex’s respite care because Appellee’s need for respite arose when she voluntarily relocated with Alex to another state. Kuttas appears to be the only Florida appellate decision discussing respite care in the marital dissolution/child support context. There, the Second District reviewed an order modifying child support upward to include respite care expenses for the parties’ two teenage children, both of whom were autistic. The children’s mother sought additional child support because both children had special needs, the father had moved out of state and could no longer exercise visitation every other weekend, and the mother received no regular relief from taking care of the children. 879 So.2d at 4. The trial court found these factors constituted a substantial change in circumstances justifying an upward deviation from the child support guidelines to cover the cost of twenty-four hours of respite care per month for each child. Id. at 5-6. The Second District affirmed the trial court’s finding. Id.

We do not read Kuttas to hold categorically that a court may only require a parent to pay for respite care for a child when that parent stops exercising his or her visitation. On the contrary, in that case the father’s inability to visit the children after relocating out of state was merely one factor among others for the court to consider in deciding whether to increase child support payable to the mother. Whether a substantial change in circumstances has occurred to justify an increase in child support is a decidedly case-specific determination. See generally Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997).

Moreover, the respite care ordered by the trial court in Kuttas was for child care, albeit for two autistic children. Here, the respite care the trial court awarded Appel-lee is for Alex’s medical care. Section 61.30(ll)(a)l, Florida Statutes (2004), permits adjustments in child support for “[extraordinary medical, psychological, educational, or dental expenses.” We find no abuse of discretion by the trial court in requiring Appellant to reimburse Appellee, who shoulders most of the responsibility for Alex’s medical care, for a limited amount of respite care. Alex’s condition and constant need for medical care justify the award.

AFFIRMED.

WETHERELL and SWANSON, JJ., concur.


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Citator

Cited By

  • Hardman v. Koslowski, 135 So. 3d 434 (Fla. 1st DCA 2014)
    …son, is hereby quashed. BENTON, SWANSON, and OSTERHAUS, JJ., concur. . The order, entered on various motions and addressing contact between two of the parties’ sons and the former husband, was affirmed on direct appeal. See Koslowski v. Koslowski, 78 So. 3d 642 (Fla. 1st DCA 2011). A subsequent order holding the former wife in contempt of the July 9, 2010, order was reversed by this Court in Hardman v. Koslowski, 107 So. 3d 1246 (Fla. 1st DCA 2013). The history of the parties’ post-2004 dissolution litigat…
  • Hardman v. Koslowski, 107 So. 3d 1246 (Fla. 1st DCA 2013)
    …urt case number 2003 DR 006322); Koslowski v. Koslowski, 952 So. 2d 1195 (Fla. 1st DCA 2007) (affirming without opinion the trial court’s order allowing Former Wife to relocate with children to Seattle, Washington); Koslowski v. Koslowski (Hardman), 78 So. 3d 642 (Fla. 1st DCA 2011) (affirming circuit court order requiring Father to pay for respite care for dependent adult son). Former Wife and her current husband have been named the eldest son’s guardians in a separate guardianship proceeding in the State o…
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