DEPARTMENT OF REVENUE, O/B/O R.S.M., APPELLANT,
v.
B.J.M., APPELLEE

Fla. 2d DCA | 2013-12-04
No. 2D12-2216
DAVIS, C.J., and WALLACE, J., Concur.
127 So. 3d 859 Florida District Court of Appeal, Second District (2013) Positive Treatment
Cited by 12 cases

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Synopsis

The Department of Revenue appealed a trial court's child support order finding that the order lacked sufficient evidentiary support and failed to comply with statutory requirements. The Florida Second District Court of Appeal reversed and remanded because the trial court failed to include a child support guidelines worksheet, improperly deviated from guidelines based on factors not authorized by statute, and erred in denying retroactive support.


Holding

The court reversed and remanded because: (1) the trial court erred in failing to include a child support guidelines worksheet required by statute; (2) the trial court improperly deviated from guidelines based on factors not authorized by section 61.30, specifically the father's choice not to pursue parenting time and his belief regarding adoption; and (3) the trial court abused its discretion in denying retroactive support, as the adoption defense ceased upon filing the petition and retroactive support depends on child's need and parent's ability to pay, not discovery delays.


Headnotes

[1] A trial court must include a child support guidelines worksheet in its order to demonstrate how child support was calculated.

[2] A trial court may deviate from child support guidelines by more than five percent only upon a written finding explaining why the guideline amount would be unjust or inapp…

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Key Quotes

“We do not agree with the father that section 61.30 authorizes a reduction based on the facts relied on by the father.”

Establishes that the statutory factors for deviation from child support guidelines do not include the father's choice not to pursue parenting time or his mistaken belief about adoption

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Facts & Procedural History

The Department filed a paternity petition in November 2010 on behalf of R.S.M., seeking child support from B.J.M. for their child born January 31, 200…

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Opinion of the Court
LaROSE, Judge.

LaROSE, Judge.

The Department of Revenue, on behalf of R.S.M., appeals the final judgment of paternity and support ordering the father, B.J.M., to pay child support to the mother, R.S.M., for their child, L.W.M. Competent substantial evidence does not support the final judgment. Consequently, we reverse and remand for further proceedings.

In November 2010, the Department filed its petition to establish paternity, child support, and other relief. See §§ 61.13, 742.011, Fla. Stat. (2010). The petition sought current and retroactive child support from the father; the mother and child lived in North Carolina. The mother was unemployed with income coming from support and supplemental security income payments for her other children. She earned $400 a month in her last job. She lost that job and had been unable to find work. The father was employed, earned $39,327.79 in gross income in 2010, and was currently earning a net monthly income of $2587.76. There was no dispute that B.J.M. was the child’s father.

The child, L.W.M., was born on January 31, 2000. The father agreed to an adoption that did not happen. The mother then married another man soon after the child’s birth. The father consented to adoption by the mother’s then-husband. The mother and then-husband divorced; that adoption never went through. The father never received papers confirming any adoption. He never inquired about it. At the final hearing, the father argued that the mother was not entitled to retroactive *861support because, believing that the child would be adopted, he never sought a relationship with the child. At the time of the final hearing, the child was twelve years old.

The final hearing took place in February 2012. The Department filed a proposed child support guidelines worksheet that listed the mother’s net monthly income as $1051.20, imputing North Carolina minimum wage.1 It listed the father’s net monthly income at $3527.42. The Department computed the father’s child support obligation at $675.64 per month. The father did not submit a separate child support guidelines worksheet.

The father asked the trial court to deviate downward from the guidelines. He argued that even though he could seek visitation, which would lower his child support obligation, see § 61.30(ll)(a)(10), he was not doing so, in the child’s best interests, because the child did not know him. The father looked forward to a future relationship with the child if the child was agreeable. In the end, the father believed that the support amount was too large and that support should be handled privately. The trial court took the matter under advisement.

The final judgment lists the father’s net monthly income as $3322.88, imputes to the mother a net monthly income of $1051.20, denies retroactive support, and orders the father to pay $600 monthly by income deduction order.

Child Support Guidelines Worksheet

The trial court erred in failing to include in its order a child support guidelines worksheet. See Voronin v. Voronina, 975 So.2d 1228, 1229 (Fla. 2d DCA 2008). The only guidelines worksheet in the record is that of the Department, which shows a higher amount for the father’s net monthly income. Consequently, the final judgment fails to show how the trial court calculated the child support amount. Moreover, our record does not detail how the trial court arrived at its $600 monthly support obligation, an amount more than 12% less than the Department requested.

Deviation from Guidelines

The trial court deviated from the child support guidelines with the following observation:

Respondent requests deviation due to the fact that he has chosen not to pursue parenting time which [sic] this child does not know him [and] that he was unaware the child was not adopted, which is plausible, as adoption records are sealed. There is no showing of need for this child who was to be adopted [and] the potential retroactive period has been extended by Petitioner’s delay at compliance with discovery.

Sectiori 61.30 allows the trial court to deviate from the guideline amount under certain circumstances, as follows:

61.30. Child support guidelines; retroactive child support
(l)(a) The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter. The trier of fact may order payment of child sup*862port which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. Notwithstanding the variance limitations of this section, the trier of fact shall order payment of child support which varies from the guideline amount as provided in paragraph (ll)(b) whenever any of the children are required by court order or mediation agreement to spend a substantial amount of time with either parent. This requirement applies to any living arrangement, whether temporary or permanent.

The factors in the above paragraph, as well as those in section 61.80(ll)(a), all relate to the financial ability of the parents and the best interests of the child. “We do not agree with the father that section 61.30 authorizes a reduction based on the facts relied on by the father.” Krufal v. Jorgensen, 830 So.2d 228, 229 (Fla. 4th DCA 2002).

Retroactive Support

Finally, the trial court abused its discretion in failing to order support retroactive to at least the date of the petition.2 The father argues that he should not have to pay child support because the mother claimed she was placing the child for adoption. As stated above, the trial court’s order states, “There is no showing of prior need for this child who was to be adopted and the potential retroactive period has been extended by Petitioner’s delay at compliance with discovery.”

The adoption defense ceased with the filing of the petition because the father was on notice that no adoption occurred. Because retroactive support is based on the child’s need and the parent’s ability to pay at the time of filing, Beal v. Beal, 666 So.2d 1054, 1054 (Fla. 1st DCA 1996), the petitioner’s delay in discovery compliance is irrelevant. Moreover, if the petitioner had produced the discovery when due, the support order would have issued sooner and support for the time between the discovery due date and the production date would have been prospective instead of retroactive. It is evident from the record that the child was in need and the father had the ability to pay; the father was earning more than $39,000 per year, the mother was unemployed, and the child was receiving Medicaid benefits from North Carolina.

Reversed and remanded for further proceedings.

DAVIS, C.J., and WALLACE, J., Concur.


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Citator

Cited By

  • J.A.D. v. K.M.A., 264 So. 3d 1080 (Fla. 2d DCA 2019)
    …departure from the guidelines was justified. See M.M., 251 So. 3d at 972. Additionally, the trial court did not include in the final judgment a child support guidelines worksheet. This, too, was error. See Dep't of Revenue ex rel. R.S.M. v. B.J.M., 127 So. 3d 859, 861 (Fla. 2d DCA 2013). The only child support guidelines worksheet that appears in the record is one filed by the Mother, which shows a combined net monthly income higher than the amount the trial court must have arrived at in order to award a mon…
  • Dep't OF Revenue o/b/o K.A.N. v. A.N.J., 165 So. 3d 846 (Fla. 2d DCA 2015)
    …This requirement cannot be waived by the parties. It is reversible error for the court to fail to include a child support guidelines worksheet in a final judgment establishing paternity and child support. Dep’t of Revenue ex rel. R.S.M. v. B.J.M., 127 So. 3d 859, 861 (Fla. 2d DCA 2013); Durham v. Dep’t of Revenue ex rel. Durham, 850 So. 2d 653, 654 (Fla. 2d DCA 2003). And because the requirement for- filing a child support guidelines worksheet is mandatory, reversal is required even if the omission is due t…
  • Tinoco v. Savannah Leigh Lugo, 342 So. 3d 845 (Fla. 2d DCA 2022)
    …y erred by failing to attach a child support guidelines worksheet to the order on appeal. We agree. The failure to include a child support guidelines worksheet is error. J.A.D., 264 So. 3d at 1083 (citing Dep't of Revenue ex rel. R.S.M. v. B.J.M., 127 So. 3d 859, 861 (Fla. 2d DCA 2013)). That is because, absent the guidelines worksheet or a meaningful substitute, the order on appeal "fails to show how the trial court arrived at that monthly support obligation." Id. Here, the trial court did not attach a c…

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