BARBARA JEAN YONTZ, APPELLANT,
v.
ALVIN PETER YORKUNAS, APPELLEE
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A wife appeals the trial court's award of $25 per week child support in a dissolution of marriage case. The appellate court holds that the trial judge abused its discretion by setting this amount without sufficient evidence of the husband's ability to pay, the child's needs, or the wife's ability to contribute, and reverses and remands for further proceedings.
The trial court abused its discretion by awarding $25 per week child support without sufficient evidentiary support. The award was improper because the husband appeared to be contributing more than $25 per week at the time of the dissolution hearing through the parties' cost-sharing arrangement, and the trial judge effectively limited the husband's obligation despite his agreement to assume responsibility for expenses beyond $25 per week.
[1] A trial court abuses its discretion when it awards child support without sufficient evidence of the obligor's ability to pay, the child's needs, and the other parent's ab…
[2] A trial court may retain jurisdiction over the matter of child support even if the parties initially agree to waive it.
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Join FLexlaw to unlock all legal intelligence“the trial judge below abused his discretion by making an award without sufficient evidence upon which to base his determination”
Establishes the core holding that discretionary awards must be supported by evidentiary foundation
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Join FLexlaw to unlock all legal intelligenceThe parties entered into a separation and property settlement agreement providing for joint custody and stipulating that the wife was not seeking chil…
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OTT, Judge.
The appellant/wife appeals that portion of the final judgment of dissolution of marriage ordering appellee/husband to pay $25.00 per week child support. We conclude that the trial court abused its discretion by awarding this specific amount without sufficient evidence upon which to base its determination and we reverse.
The parties entered into a “separation and property settlement agreement” in contemplation of divorce and the wife filed a copy of this agreement along with her petition for dissolution. The agreement provided that the parties had and wished to maintain “joint custody” of the minor child and that the wife was not presently seeking an award of child support.
At a hearing before a special master, the parties agreed that the child was living primarily with the wife and she should have custody, but reaffirmed their agreement that the wife was not presently seeking child support. Accordingly, the special master’s report recommended that the wife be awarded custody of the child and that no child support be awarded at this time but that the trial court retain jurisdiction over the matter of child support.
At the final hearing, the trial judge refused to enter a final judgment without specifying some minimum obligation of the husband for child support. Upon ascertaining that the husband was then paying $23.00 per week for the child’s nursery school and that the parties “split the costs of the child, of everything,” ordered the final judgment prepared requiring the husband to pay $25.00 per week for child support. This order was entered without, so far as the record shows, sufficient evidence of the husband’s ability to pay and without any evidence of the child’s needs or the wife’s ability to contribute to the support of the child.
On the basis of the record before this court, it would appear that the husband was contributing more than $25.00 per week to the support of the child at the time of the dissolution hearing, since he and the wife were splitting all the child’s expenses. Nursery school alone cost $23.00 per week. If that is, in fact, the case, then the trial judge has lifted any responsibility on the part of the husband to pay more than $25.00, per week, although the husband had by virtue of the parties’ agreement agreed to assume that responsibility to the extent that half the cost of supporting the child exceeded $25.00 per week. While the trial court has broad discretion to enter any award supported by the evidence, the trial judge below abused his discretion by making an award without sufficient evidence upon which to base his determination.
That portion of the final judgment ordering the husband to pay $25.00 per week for child support is vacated and the cause remanded to the trial court for further proceedings not inconsistent herewith. The final judgment is affirmed in all other respects.1
RYDER and DANAHY, JJ., concur. . As of this writing, appellant/wife had not made payment for the lower court clerk’s fees in this appeal. On remand, the trial court may, of course, take appropriate steps to see that these fees are paid.
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The Dep't OF Health & Rehabilitative Servs. v. Thomas, 477 So. 2d 1053 (Fla. 5th DCA 1985)…re that there has never been a proper determination of the father’s ability to pay child support. Without such a determination, an award of child support cannot be upheld on appeal. Diaz v. Diaz, 418 So. 2d 1064 (Fla.3d DCA 1982); Yontz v. Yorkunas, 358 So. 2d 91 (Fla.2d DCA 1978). The father’s mere admission on cross-examination that he “has had the [*1057] ability to support these children since ’75” does not sufficiently reveal the extent of that ability. That portion of the ruling barring HRS from colle…
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Gregorio Diaz v. Diaz, 418 So. 2d 1064 (Fla. 3d DCA 1982)…. In the instant case, the trial court correctly applied the above principles but failed to require the inclusion in the record of evidence upon which it could properly exercise its discretion in the matter of child support. See Yontz v. Yorkunas, 358 So. 2d 91 (Fla. 2d DCA 1978). Where there is such an insufficiency of evidence on some material point as to prevent the entry of a just decree, and it appears from the record that the required evidence is available, the cause may be remanded with directions t…
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Bill v. Bill, 478 So. 2d 93 (Fla. 2d DCA 1985)…ak. The needs of the child in relation to all other factors, however, must also be considered, and there is insufficient evidence in the record to support the trial court’s finding that the child needed the amount awarded. Aycock; Yontz v. Yorkunas, 358 So. 2d 91 (Fla. 2d DCA 1978). During the course of the trial, the wife testified that expenses incurred directly for the benefit of the child amounted to $225 per month. The husband testified that those expenses amount to $230 per month. We realize that thes…
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