DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DOMINIQUE WILLIAMS,
Appellant,
v.
GLORIA GONZALEZ,
Appellee.
No. 4D19-3659
[April 22, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE-17-010579.
Elaine L. Thompson, Brandon, for appellant.
Tal Shemtov of The Tal Shemtov Law Firm, P.A., Plantation, for
appellee.
FORST, J.
Appellant Dominique Williams (“the Father”) appeals from the trial
court’s final judgment establishing paternity. Specifically, the Father
challenges the trial court’s award of sole parental responsibility to Gloria
Gonzalez (“the Mother”), the reduction of the Father’s time-sharing, and
other restrictions on the Father’s visitation. On these issues, we
summarily affirm. The Father also argues that the trial court selected an
erroneous effective date for the retroactive child support payment and
erred in its calculation of his prospective child support payment. We agree
with the Father with respect to these claims and, thus, reverse in part.
Background
The Mother and Father originally met in Florida but later moved to
Virginia where the child was born. The couple’s relationship deteriorated,
and a few weeks after the birth of their child, the Mother left the Father
and took the child to Florida to live with her parents. The Mother and
child remained in Florida for approximately three months before the
couple attempted a reconciliation in Virginia. The reconciliation failed and
the Mother and child returned to Florida a second time.
Per the Father’s testimony, he eventually moved to Doral, Florida, forty-
five minutes from his child, and worked as a warehouse worker earning a
gross income of $1,600 per month. He lived in Florida for several months
before moving to North Carolina, where he currently resides and has a
familial support system. In North Carolina, the Father works 20-25 hours
per week for his family’s business earning $760 per month. These modest
hours allow the Father to take online classes towards obtaining a real
estate license. The Father’s family helps support him, and his new
girlfriend pays for their rent and utilities. The Father’s parents also gifted
him a car worth approximately $21,000. At the time of trial, the Father
had made child support payments totaling $1,600.
During this time, the Mother worked two jobs to support herself and
the child. The Mother at the time of trial was working as a paralegal and
earning approximately $60,000 per year.
Following a trial focusing on child custody and support, the trial court
determined that the Father was underemployed and imputed monthly
income of $1,600 to him. The court relied upon the $1,600 per month that
the Father was making while working in Florida in 2018, rather than the
$760 he was currently earning each month in North Carolina. The trial
court further ordered retroactive child support to be paid to the Mother,
imputing the income in the same manner as done for the prospective child
support payments and determining that the payments were to be
retroactive to April 2016, the date of the child’s birth.
In addition to challenging the trial court’s custody award, the Father
appeals the imputation of income calculations and the durational scope of
the retroactive support payments. As noted above, we summarily affirm
the order with respect to the child custody determinations. Our sole focus
is the trial court’s rulings on the child support issues.
Analysis
A. Prospective Child Support
“The standard of review for a child support award is abuse of
discretion.” Henry v. Henry,
191 So. 3d 995, 997 (Fla. 4th DCA 2016)
(quoting McKenna v. McKenna,
31 So. 3d 890, 891 (Fla. 4th DCA 2010)).
The Father argues that the trial court abused its discretion by imputing
income to him based on his prior Florida wages because, at the time of
trial, he was living and working in North Carolina, making less wages. The
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Father also argues that the trial court abused its discretion by failing to
deduct applicable taxes from his imputed income and by allocating the full
costs of transportation and supervision to the Father. The court’s finding
that the Father was willfully underemployed has not been appealed.
“Where a finding of voluntary unemployment or underemployment is
made, section 61.30(2)(b) states that the trial court is to determine the
parent’s employment potential and probable earnings ‘based upon his or
her recent work history, occupational qualifications, and prevailing
earnings level in the community.’” Broga v. Broga,
166 So. 3d 183, 186
(Fla. 1st DCA 2015) (quoting § 61.30(2)(b), Fla. Stat.). The relevant inquiry
focuses on the community in which the Father lives and works. See
Rabbath v. Farid,
4 So. 3d 778, 782 (Fla. 1st DCA 2009) (reversing
imputation of income based on past, foreign job because “[n]o evidence
was presented regarding the current, prevailing earnings level and the
potential source(s) or amount of income in the pertinent community for
purposes of imputing income to Appellant.”). The trial court may only
impute a level of income supported by the evidence of employment
potential and probable earnings and this determination must be based on
competent substantial evidence. Alich v. Clapp,
926 So. 2d 467, 468 (Fla.
4th DCA 2006).
Here, the Father testified that, at the time of trial, he was earning $760
per month by working 20-25 hours for his family business. The Father’s
2018 financial affidavit indicated that he had a gross income of $1,600 a
month working full-time in Florida at a rate of $10 per hour. The trial
court, upon finding that the Father was voluntarily underemployed,
imputed income of $1,600 per month based on this affidavit. This was
error as the relevant job market was Charlotte, North Carolina, and no
evidence was presented at trial establishing the Father’s earning potential
in Charlotte. On remand, the trial court is to hold an evidentiary hearing
to determine the Father’s earning potential in Charlotte, as opposed to
imputing income based on the Father’s prior wages in Florida.
The trial court also erred by using the Father’s gross income instead of
his net income. See § 61.30(9), Fla. Stat. (2019) (“Each parent’s percentage
share of the child support need shall be determined by dividing each
parent’s net monthly income by the combined net monthly income.”); see
also Ondrejack v. Ondrejack,
839 So. 2d 867, 871 (Fla. 4th DCA 2003)
(“Section 61.30(9), Florida Statutes, provides the statutory formula which
must be used to determine each parent’s actual dollar share.”). This, too,
must be corrected on remand.
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Lastly, the trial court erred by requiring the Father to pay the entirety
of the transportation and supervision costs associated with his visitation.
“The expense of transporting the minor child for visitation is a childrearing
expense like any other, which should be shared by the parents in
accordance with their financial means.” Aranda v. Padilla,
216 So. 3d 652,
654 (Fla. 4th DCA 2017). “[T]he proper test is the consideration of the
parties’ financial circumstances.”
Id. (internal quotations omitted); see
also McKenna v. Fisher,
778 So. 2d 498, 499 (Fla. 5th DCA 2001) (reversing
trial court’s decision assigning the father responsibility for all travel costs
because he was the party who relocated). Likewise, the costs of the
supervised visitation should not have been allocated solely to the Father.
See Perez v. Fay,
160 So. 3d 459, 466 (Fla. 2d DCA 2015) (“the expenses
of visitation are part of the parties’ childrearing expenses that must be
addressed as part of the parties’ child support obligations”); see also
Drakulich v. Drakulich,
705 So. 2d 665, 667 (Fla. 3d DCA 1998) (the
expenses of visitation are a childrearing expense like any other).
On remand, the trial court must determine the proper amount of
income to impute to the Father based on his earning potential in Charlotte,
North Carolina to calculate the prospective child support payments. The
Mother’s contention that the Father is “hiding money” by receiving a car
worth $21,000 can be more properly addressed at this evidentiary hearing.
B. Retroactive Child Support
“Awards of retroactive child support are reviewed for an abuse of
discretion.”
Henry, 191 So. 3d at 998 (citing Wright v. Wright,
411 So. 2d
1334, 1336 (Fla. 4th DCA 1982)).
The Father argues that the trial court abused its discretion by having
the retroactive child support begin in April 2016 instead of November
2016. The Father further contends that the trial court erred by imputing
to him an arbitrary income for the retroactive period. The Mother has also
requested that the trial court revisit the income attributed to her in these
calculations should this court remand the case for an evidentiary hearing.
Additionally, both parties maintain that the trial court chose an arbitrary
income to impute to each of them in the retroactive support calculation.
“[T]he court has discretion to award child support retroactive to the
date when the parents did not reside together in the same household with
the child, not to exceed a period of 24 months preceding the filing of the
petition. . . .” § 61.30(17), Fla. Stat. (2019). Further, a court may award
retroactive child support where the child has needs and the parent has the
corresponding ability to pay. Smith v. Smith,
872 So. 2d 397, 399 (Fla. 1st
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DCA 2004) (citing Bardin v. State,
720 So. 2d 609, 611-12 (Fla. 1st DCA
1998)). The obligor parent is entitled to credit for any payments that would
qualify under section 61.30(17)(b), Florida Statutes (2019), that occurred
during the retroactive support period. Lennon v. Lennon,
264 So. 3d 1084,
1087 (Fla. 2d DCA 2019).
The Father gave unopposed testimony that the Mother left with the
child shortly after childbirth but subsequently returned and reconciled
with the Father, with the final separation occurring around Thanksgiving
in 2016. We thus agree with the Father that the retroactive child support
award should be calculated beginning in late November 2016. See Ditton
v. Circelli,
888 So. 2d 161, 162-63 (Fla. 5th DCA 2004) (holding that the
retroactive award of child support to a time period when the parties were
living together is reversible error). As for the calculation of the Father’s
ability to pay child support for the period when he was not living with
mother and child, the same recalculations associated with prospective
child support must be done here. The Mother should also be permitted to
offer evidence establishing her income during the corrected timeframe
because, as she correctly points out, she did not make $60,000 per year
during the entire retroactive period.
Conclusion
On remand, the trial court is to hold an evidentiary hearing to establish
the Father’s earning potential in Charlotte, North Carolina for the
prospective child support calculations. The net income, as opposed to
gross income, is to be used. The trial court must also allocate the costs of
transportation and supervision according to the parties’ financial
circumstances. Finally, both parties are to be permitted to offer evidence
of their income for the corrected retrospective child support period.
Affirmed in part, Reversed in part, and Remanded with instructions.
CONNER and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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