Third District Court of Appeal
State of Florida
Opinion filed January 6, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-265
Lower Tribunal No. 18-29633
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Jesus Garcia,
Appellant,
vs.
Juliette Espinosa f/k/a Juliette Espinosa-Garcia,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Spencer J.
Multack, Judge.
Sandy T. Fox, P.A., and Sandy T. Fox and Alisha B. Savani, for appellant.
Juliette Espinosa f/k/a Juliette Espinosa-Garcia, in proper person.
Before LOGUE, SCALES and LINDSEY, JJ.
LOGUE, J.
Jesus Garcia, the former husband, appeals the trial court’s rulings on alimony
and child support to be paid by Juliette Espinosa, the former wife. He also contends
the trial court abused its discretion by failing to adopt the parenting plan submitted
by the parties. We agree the trial court erred in its alimony and child support
determinations, reverse those rulings, and remand for reconsideration. We also agree
the trial court abused its discretion in failing to adopt the parenting plan and remand
for reconsideration consistent with the best interest of the children. The partial final
judgment of dissolution is affirmed in all other respects.
FACTS
The parties married in July 2001 and are the parents of two children: a
teenaged son, who is one-year shy of attaining majority age, and an eleven-year-old
daughter. The former wife filed a petition for dissolution of marriage in December
2018. The trial court entered a partial final judgment dissolving the marriage in
January 2020.
The former wife was 42 years old when the marriage was dissolved. She
attended law school from 1999 to 2001 and has worked at the Department of
Homeland Security, U.S. Citizenship and Immigration Services, for the past 15 years
as a supervisor. In her present role as trial attorney at the Department, the former
wife earns $113,299.00 in gross income.
The former husband was 61 years old at the time of the dissolution. He worked
in construction before being declared disabled by the Social Security Administration
in 2016. The former husband became unemployed during the last two years of the
2
marriage. He collects $1,645 in social security disability payments and $800 in
dependent benefits for the parties’ children, for a total of $2,445 in gross monthly
income.
The parties entered into a mediated settlement agreement which resolved the
equal distribution of their assets and liabilities. They also executed a parenting plan
establishing shared parental responsibility and equal timesharing. The parties agreed
the daughter would reside with the former wife and the son with the former husband.
Thus, the trial court was asked to determine the issues of alimony and child support
and to adopt the parenting plan.
At the bench trial, the former wife testified that the parties lived beyond their
means. The marital home was made up of five bedrooms and four bathrooms with a
swimming pool and lakefront view. The former husband testified that he contributed
$1,600 monthly for the mortgage of the marital home. He also testified, as did the
former wife, that he was responsible for taking and picking up the children for school
because the former wife’s work schedule prevented her from doing so.
In the partial final judgment, the trial court ordered the former wife to pay
$200 per month in alimony for seven years. The trial court determined the former
wife’s child support obligation was $737.60 per month until July 28, 2021, when it
drops to $465.65; it further concluded the child support obligation was zero because
the former husband receives $800 per month in dependent benefits for the parties’
3
children. The trial court refused to adopt the parenting plan and allowed for further
modification by either party based on the best interest of the children.
DISCUSSION
a. Alimony
Regarding alimony, the former husband challenges the trial court’s decision
to award him durational periodic alimony rather than permanent alimony. 1 We agree
that the partial final judgment does not include factual findings necessary to explain
why the trial court did not award permanent alimony in this case. The type and
amount of alimony is ascertained by ten statutory factors enumerated under section
61.08(2), Florida Statutes (2019). 2 Here, the former husband is entitled to an award
of alimony because of his age, disability, inability to support himself financially, and
the length of the marriage. See Walters v. Walters,
588 So. 2d 47, 48 (Fla. 2d DCA
1991).
1
We review the trial court’s alimony award, child support obligation, and final
judgment establishing a parenting plan for an abuse of discretion. See Ziruolo v.
Ziruolo,
217 So. 3d 1170 (Fla. 1st DCA 2017); Pena v. Rodriguez,
273 So. 3d 237,
239 (Fla. 3d DCA 2019). “An abuse of discretion appears when the record reveals a
lack of competent, substantial evidence to sustain the findings of the trial court.”
Pena, 273 So. 3d at 239–40.
2
The statute requires the trial court to include findings of fact as to the parties’
standard of living established during the marriage, duration of marriage, age and
physical and emotional condition, financial resources, including all assets and
liabilities distributed to each, contribution to the marriage, all sources of income, and
any other factor necessary to do equity and justice between the parties.
4
Although the trial court correctly determined that the parties’ seventeen-year
marriage is a long-term marriage in Florida, it did not make an express finding that
the former husband is entitled to a presumption in favor of permanent alimony. 3 Nor
did it explain how this presumption was rebutted. In awarding durational alimony,
the trial court summarily concluded that the former husband “has a need based on
his limited ability to work” and that “[n]o other form of alimony is appropriate,”
however, it “[gave] no guidance as to why permanent periodic alimony is
inappropriate in [this] long-term marriage and why durational alimony was awarded,
[therefore,] reversal is proper.” Gilliland, 266 So. 3d at 868. The final judgment also
left unexplained whether the former husband has an “ongoing need for support on a
permanent basis.” § 61.08(7), Fla. Stat.; Ortiz v. Ortiz, 45 Fla. L. Weekly D1929
(Fla. 3d DCA Aug. 12, 2020) (reversing and remanding trial court’s alimony award
where “judgment on appeal does not include the reasoning behind the award of
alimony”).
Unreconciled inconsistencies exist regarding the evident disparate earning
capacity of the parties. See § 61.08(2)(j), Fla. Stat. (in determining alimony award,
the court shall consider “[a]ny other factor necessary to do equity and justice
3
§ 61.08(4), Fla. Stat. (“For purposes of determining alimony, there is a rebuttable
presumption that a . . . long-term marriage is a marriage having a duration of 17
years or greater.”). “There is a rebuttable presumption that permanent periodic
alimony is appropriate after a long-term marriage.” Gilliland v. Gilliland,
266 So.
3d 866, 868 (Fla. 5th DCA 2019) (citation omitted).
5
between the parties”); Gilliland, 266 So. 3d at 868 (“[T]he disparate earning capacity
of the parties is a significant factor in deciding whether permanent alimony is
warranted.” (citations omitted)). 4 Aside from asserting that the parties’ marital home
“was more than the [parties] could afford,” the trial court did not make any specific
factual finding on the couple’s standard of living established during the marriage as
required by the statute. See Quinones v. Quinones,
84 So. 3d 1101, 1105 (Fla. 3d
DCA 2012) (“Consideration of standard of living is to ensure that one spouse is not
‘shortchanged.’” (quoting Canakaris v. Canakaris,
382 So. 2d 1197, 1204 (Fla.
1980))).
Also, in considering “services rendered in homemaking, child care, education,
and career building of the other party,” section 61.08(2)(f), Florida Statutes, the
partial final judgment neither addresses nor explains the evidence indicating that the
former husband contributed $1,600 monthly for the mortgage of the marital home
before the parties separated. Likewise, the partial final judgment is silent regarding
the parties’ division of household labor which required the former husband to
4
An example of the parties’ income disparity is evident in their living arrangements
after separation. At the time of trial, the former wife was renting a three-bedroom,
two-bathroom townhome for $2,200 per month. Since her live-in boyfriend
contributes $500 per month for the rent, she is only responsible for $1,700. In
contrast, the former husband was temporarily renting an efficiency with one
bedroom and one bath for $850 per month which is half the amount the former wife
pays for rent.
6
routinely drop off and pick up the children from school to prevent interference with
the former wife’s work responsibilities, including working night and weekend hours.
Next, the partial final judgment does not include the requisite factual findings
to explain why alimony was limited to $200 per month. In this regard, the final
judgment does not address or reconcile the inconsistent evidence regarding the
former wife’s income, expenses, and liabilities. 5 Additionally, the former wife
testified that she received $500 per month from her live-in boyfriend at the time of
trial. It is proper for the trial court to consider such circumstance in determining the
overall expenses of the former wife, the appropriate award of alimony, and her
ability to pay. See Walters, 588 So. 2d at 48 (observing contribution of $300 per
week by boyfriend cohabiting with wife for household is “proper” for trial court’s
consideration in determining the overall needs of the wife). Here, although the
boyfriend’s monthly rent contribution was recognized by the trial court in its partial
final judgment, the amount was not included in the former wife’s financial affidavit
to calculate her monthly expenses.
5
For example, based on her amended financial affidavit and testimony, the former
wife earned $113,299.00 in gross income for 2018, which is roughly $9,441.00 per
month. However, in the same page of the financial affidavit, she lists $8,686.40 as
her total monthly gross income, a $754.60 monthly difference in gross earnings that
went unaccounted for in the trial court’s calculation of alimony awarded to the
former husband. For expenses, the former wife lists a $250 monthly car payment
twice in her amended financial affidavit: first under “Automobile” and also under
“Monthly Expenses to Creditors.” The final judgment appears to have relied upon
this duplicate report of expenses.
7
These unreconciled discrepancies in the former wife’s finances reflect that the
alimony award is not supported by requisite fact findings. See French v. French,
12
So. 3d 278, 279–80 (Fla. 5th DCA 2009) (“Once discovered, the errors required the
trial court to conclude that the . . . determination of the amount of expenses assigned
to the former wife was not supported by competent evidence.”). Similar
unreconciled inconsistencies exist regarding the relative treatment of the former
wife’s and former husband’s debts and the wife’s voluntary contributions to personal
savings. 6
b. Child Support
“A trial court determines the amount of child support a party owes by utilizing
the guidelines set forth in [section] 61.30, Florida Statutes.” Ziruolo,
217 So. 3d at
1172. Because the trial court failed to apply these child support guidelines, we
reverse and remand for reconsideration of the proper amount of support owed.
The trial court must determine the net income of each parent pursuant to
section 61.30, and it must include these findings in the final judgment. This
requirement stems from the “well-established rule that ‘[c]hild support awards must
6
See Geoghegan v. Geoghegan,
969 So. 2d 482, 486 (Fla. 5th DCA 2007) (holding
trial court should have considered including income earned by husband that was
annually contributed by him to his 401K plan, retirement plan, or medical savings
account, for purpose of making ability-to-pay alimony calculation because
contributions were voluntary and reduced apparent annual income available to
husband).
8
be based on competent, substantial evidence of a party’s net income.’” Van Exter v.
Diodonet-Molina,
152 So. 3d 699, 701 (Fla. 3d DCA 2014) (quoting Hoffman v.
Hoffman,
98 So. 3d 196, 197 (Fla. 2d DCA 2012)). “The net income of each parent
is then combined to determine the minimum amount of child support needed.”
Id. at
701 n.2 (citing § 61.30(6), Fla. Stat.). “If the trial court fails to make adequate
findings, we are required to remand for determination of child support.” Id. at 701
(citing cases); see also Foster v. Chong,
254 So. 3d 641, 642 (Fla. 3d DCA 2018)
(“The trial court made no written or oral findings to describe how it arrived at [the]
child support obligation, and therefore, the record is unclear as to whether this
amount comports with the allocation requirements of chapter 61 of the Florida
Statutes. As a result, we are unable to conclude that the child support award . . . is
supported by competent substantial evidence and are compelled to reverse.”).
First, the trial court erred by calculating the child support obligation based on
the parties’ gross, rather than net, income. J.A.D. v. K.M.A.,
264 So. 3d 1080, 1083
(Fla. 2d DCA 2019) (“The trial court erred by failing to make specific findings
concerning each parent’s net monthly income and relying only on each parent’s
gross monthly income . . . . Because the guidelines are based on the parents’
combined net income and there is an absence of findings as to same in the appellate
record, this court cannot conduct a meaningful appellate review of the child support
award . . . .” (emphasis in original)); Aguirre v. Aguirre,
985 So. 2d 1203, 1207 (Fla.
9
4th DCA 2008) (“A final judgment is facially erroneous, requiring remand, where it
does not make any findings as to the net income of each party as a starting point for
calculating child support or explain how the calculation was performed.”) (citation
omitted).
Second, the trial court determined the former wife’s child support obligation
is $737.60 per month until July 28, 2021, when it falls to $465.65. But there is no
written explanation, or oral finding in the trial transcript, as to how the trial court
reached these numbers. Likewise, there is no explanation as to why the obligation
decreases after July 28, 2021, which is likely an error. 7 There is also no child support
guidelines worksheet filed by the trial court to conduct a meaningful appellate
review of the award. See J.A.D., 264 So. 3d at 1083 (“Additionally, the trial court
did not include in the final judgment a child support guidelines worksheet. This, too,
was error.”). Because the trial court failed to make specific findings as to the
combined net income (with correct figures for the former wife’s income as
previously discussed), and to include a child support guidelines worksheet, we
7
The parties were married on July 28, 2001. The record shows the parties’ son turns
eighteen years old in September 2021. After this date, the parties are not required by
law to financially support their son unless he becomes disabled or is still in high
school with a reasonable expectation of graduation before the age of nineteen. §
61.13(1)(a)(1)(a), Fla. Stat. (2019).
10
reverse the child support determination and remand for reconsideration as to the
proper amount of support owed. 8
Lastly, we note the trial court erred by ordering that “[a]ny out of pocket or
supplemental cost shall be shared by the parties equally.” This ruling is contrary to
the clear directive under section 61.30(8), Florida Statutes, which provides that such
medical expenses “shall be added to the basic obligation unless these expenses have
been ordered to be separately paid on a percentage basis.” It is unclear from the
partial final judgment whether the trial court deducted the health insurance paid by
the former wife, through her payroll deductions, from her child support obligation,
and whether the trial court added the uncovered medical expenses to the basic
obligation of both parties. On remand, the trial court shall clarify whether these
expenses are included in the basic child support amount or it shall conform these
expenses with section 61.30(8) and provide for such amount proportionate to the
parties’ income. See Forrest v. Ron,
821 So. 2d 1163, 1168 (Fla. 3d DCA 2002)
8
There is an added wrinkle in the child support calculation since the former husband
receives social security dependent benefits on behalf of the children. “‘[W]hen a
parent is receiving social security . . . and, as a result, his or her children receive
dependent benefits, the total benefits received by . . . that parent are attributed to the
. . . parent as income in the child support guideline calculation.’” Valladares v.
Junco-Valladares,
30 So. 3d 519, 524–25 (Fla. 3d DCA 2010) (quoting Sealander v.
Sealander,
789 So. 2d 401, 403 (Fla. 4th DCA 2001)). Thus, the $800 in dependent
benefits the former husband receives should be included as part of his income for
purposes of calculating the child support obligation. This was correctly done by the
trial court.
11
(reversing for clarification where trial court “ordered each parent to pay 50% of the
child’s uncovered medical expenses instead of a proportionate amount based on their
income”).
c. Parenting Plan
Prior to trial, the parties executed and filed their parenting plan which was to
take effect on January 1, 2020. The parties, represented by counsel, initialed each
page of the plan detailing the parties’ agreement to shared parental responsibility,
timesharing, school and holiday scheduling, transportation, and education expenses
for their children. At the bench trial, the trial court orally pronounced that it would
ratify the parenting plan. Nevertheless, in the partial final judgment, the trial court
declared the “Parenting Plan has not been finalized and will require a future court
date. Either party may file a motion to modify the existing agreement, which has not
been ratified by the Court[.]”
It is a “well-established principle that a trial court’s oral pronouncement
controls over its written order.” Cancino v. Cancino,
273 So. 3d 122, 127 (Fla. 3d
DCA 2019) (citing cases). The trial court abused its discretion in failing to review
and approve the parenting plan as it had orally pronounced twice at the bench trial.
On remand, the trial court, in keeping with the statutory mandate that “the best
interest of the child[ren] shall be the primary consideration,” section 61.13(3),
12
Florida Statutes, shall review and adopt the parenting plan to conform the final
judgment with its oral pronouncements.
For these reasons, we reverse the alimony and child support determinations
and remand to the trial court for reconsideration in accordance with this opinion. We
also reverse the inconsistent ruling on the parenting plan and remand to the trial
court for review and adoption of the plan in accordance with the best interest of the
children. The partial final judgment is affirmed in all other respects.
Affirmed in part, reversed in part, and remanded with instructions.
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