PAUL ERNEST VARCHETTI v. JULIE ANNE VARCHETTI

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PAUL ERNEST VARCHETTI,
Appellant,
v.
JULIE ANNE VARCHETTI,
Appellee.
No. 4D22-438
[January 18, 2023]
Appeal of a nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Janet Croom, Judge; L.T. Case No.
312019DR000482.
A. Julia Graves of Law Office of A. Julia Graves, P.A., Vero Beach, for
appellant.
Kevin M. Rollin of Napier & Rollin, PLLC, Vero Beach, for appellee.
PER CURIAM.
Appellant Paul Ernest Varchetti (“the former husband”) appeals from
the circuit court’s order awarding temporary child support to Appellee
Julie Anne Varchetti (“the former wife”), raising both jurisdictional and
errors-in-calculation arguments. Concluding that some of the former
husband’s challenges are meritorious, we reverse in part and remand with
instructions that the circuit court recalculate the temporary child support
due to the former wife, as set forth below, and summarily deny the former
wife’s request for an award of attorney’s fees.
Background
The parties were married in Michigan and have two minor children. In
2019, the parties each filed for dissolution of marriage from their
respective domiciles, the former husband in Michigan, the former wife in
Florida. The parties were divorced in Michigan in 2021 after a Michigan
court entered a final judgment of divorce, which incorporated and merged
the parties’ confidential settlement agreement (“the CSA”).
Among the CSA’s pertinent provisions is the requirement that the
former husband pay the former wife $3,500 per month for seventy-two
months “as combined spousal support and property settlement payments
in the form of nonmodifiable alimony.” As to child support, the CSA
requires the former husband to pay $300 per month to the former wife.
Additionally, the CSA contains an indemnification provision which states:
“All attorney and professional fee charges that [the former wife] incurs after
the date of this Agreement shall be [the former wife’s] sole responsibility.”
The parties’ proposed Michigan final judgment of divorce incorporated
the CSA’s articles related to custody and parenting time (Article 2) and to
child support (Article 3). However, the Michigan judge crossed out the
section of the proposed final judgment incorporating those articles. Thus,
those articles are not part of the Final Judgment of Divorce.
Thereafter, both the Michigan and Florida courts determined that,
because the parties’ children were living with the former wife in Florida,
this state was the proper jurisdiction for all child custody and support
issues under the Uniform Child Custody Jurisdiction and Enforcement
Act. The Michigan court took no further action as to child support.
Subsequently, the former wife filed a “motion to establish initial award
of temporary child support” in Florida. She requested an upward deviation
to $6,688 in monthly child support, asserting that the former husband’s
annual income was between $600,000 and $700,000. The former
husband sought a dismissal of this motion, questioning the Florida court’s
jurisdiction to award child support in light of the CSA, which was merged
into the Michigan final judgment of divorce.
The Florida court issued an order granting the former wife’s motion for
temporary child support above the CSA’s $300 per month. In determining
that the former husband would pay monthly child support of $2,851 (plus
a $28,510 arrearage), the Florida court found that the seventy-two
monthly “combined spousal support and property settlement payments”
constituted a distribution of marital property as opposed to alimony, thus
these payments could not be considered as part of the former wife’s gross
income for purposes of calculating child support. In addition, the Florida
court found that because the former wife was unemployed, it would impute
her earning capacity as being at the minimum wage level. Finally, the
Florida court’s order “reserve[d] jurisdiction to determine entitlement
and/or an award to [the former wife] of her reasonable attorneys’ fees and
costs.”
The instant appeal followed.
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Analysis
“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)).
However, the framework which a trial court has used to calculate child
support is reviewed de novo. Waldera v. Waldera, 306 So. 3d 1037, 1039
(Fla. 3d DCA 2020).
Initially, we find no error with the Florida court asserting jurisdiction
over this matter and issuing an initial child support award rather than
modifying the CSA’s $300 monthly payment provision. As noted above,
the Michigan court expressly indicated that the Florida court would
address child custody and support issues. Moreover, the former husband
failed to timely challenge the Michigan court’s striking out the CSA
provisions related to child custody and support in the proposed final
judgment of divorce, or the Michigan and Florida courts’ holdings that
Florida is the appropriate jurisdiction to determine child support. Further,
to the extent the former husband is challenging the Florida court having
ordered significantly greater monthly child support payments than the
CSA’s $300 monthly payment provision, “the party seeking an increase in
child support need only prove a substantial change in circumstances
similar to that required in the modification of dissolution judgments which
do not incorporate a settlement agreement.” Tietig v. Boggs, 602 So. 2d
1250, 1251 (Fla. 1992).
As to the former husband’s challenge to the Florida court’s monthly
child support calculations, we agree with the former husband that the
Florida court erred in finding that the seventy-two monthly payments
required by the CSA constituted distribution of marital property as
opposed to alimony. Michigan Court Rule 3.211(D)(1) states that a
Uniform Support Order “must accompany any order affecting child
support or spousal support” and the “Uniform Support Order shall govern
if the terms of the judgment or order conflict with the Uniform Support
Order.” Here, the Uniform Support Order stated that the seventy-two
monthly payments were spousal support. Because the Uniform Support
Order is controlling in this instance, the seventy-two monthly payments
should be characterized as durational alimony. 1 As a result, the seventy-
1The parties were married for approximately twelve years. “[A] moderate-term
marriage is a marriage having a duration of greater than 7 years but less than 17
years.” § 61.08(4), Fla. Stat. (2021). “Durational alimony may be awarded . . . to
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two monthly payments should be taken into consideration in calculating
the former wife’s gross income for purposes of determining child support
under section 61.30, Florida Statutes. See § 61.30(2)(a)9., Fla. Stat. (2021)
(for purposes of determining the amount of child support, a calculation of
a parent’s gross income should include consideration of “[s]pousal support
received from a previous marriage or court ordered in the marriage before
the court”).
As to the former husband’s challenge to the wife’s income imputation,
the former wife testified in the Florida court that although she was
currently unemployed, she had been recently employed at a car dealership
where she was earning approximately $500 per week or $2,000 per month
before she had quit. Nevertheless, the Florida court imputed the former
wife’s earning capacity as “minimum wage.” This was error. The pertinent
provision of the Florida child support guidelines states:
Monthly income shall be imputed to an unemployed or
underemployed parent if such unemployment or
underemployment is found by the court to be voluntary on
that parent’s part, absent a finding of fact by the court of
physical or mental incapacity or other circumstances over
which the parent has no control. In the event of such voluntary
unemployment or underemployment, the employment potential
and probable earnings level of the parent shall be determined
based upon his or her recent work history, occupational
qualifications, and prevailing earnings level in the community if
such information is available.
§ 61.30(2)(b), Fla. Stat. (2021) (emphasis added). Accordingly, the former
wife’s recent employment history should have been taken into
consideration in determining her earning capacity.
The third matter requiring reconsideration relates to the in-kind
contributions, payments, and reimbursements which the former wife was
receiving, all of which demonstrated that her living expenses were being
reduced. Pursuant to section 61.30(2)(a)13., Florida Statutes (2021), when
calculating a parent’s gross income for purposes of determining child
support, the trial court should consider any “[r]eimbursed expenses or in[-
]kind payments to the extent that they reduce living expenses.” §
61.30(2)(a)13., Fla. Stat. (2021). The former wife testified that she lived
with her fiancé and uncle, both of whom were providing her financial
provide a party with economic assistance for a set period of time following a
marriage of short or moderate duration . . . .” § 61.08(7), Fla. Stat. (2021).
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assistance by paying or reimbursing her for various bills, including home
utilities, car payments, auto insurance, and groceries. The Florida court
erred in failing to take these in-kind contributions, payments, and
reimbursements into consideration in calculating the former wife’s gross
income.
The former husband’s appeal also argues further errors existed in the
Florida court’s child support calculations. Finding no further errors, we
affirm on these arguments without discussion.
Finally, we agree with the former husband that the Florida court erred
in reserving jurisdiction to award the former wife attorney’s fees. This
ruling was inconsistent with the parties’ CSA which explicitly stated the
former wife would be solely responsible for her own attorney’s fees after
the settlement agreement was executed. See Rocha v. Mendonca, 35 So.
3d 973, 976 (Fla. 3d DCA 2010) (“Although a trial court may be motivated
to do what it considers to be fair and equitable, it retains no jurisdiction
to rewrite the terms of a marital settlement agreement.”).
Conclusion
As set forth above, we reverse, in part, the Florida court’s temporary
order awarding child support, and remand for the Florida court to make
the necessary modifications consistent with this decision and to
recalculate the former husband’s child support obligation accordingly.
Both parties are to be responsible for their own attorney’s fees.
Affirmed in part, reversed in part, and remanded with instructions.
GERBER and KUNTZ, JJ., concur.
FORST, J., concurs in part and dissents in part with an opinion.
FORST, J., concurring in part, dissenting in part.
I concur with the determination that the Florida court had jurisdiction
to calculate and impose a temporary child support order on the parties. I
further concur with the determination that the Florida court erred in part
in calculating the award, and therefore recalculation is appropriate, as the
majority opinion directs.
However, I respectfully dissent on the attorney’s fees issue. The parties
did not argue this issue during the hearing on the former wife’s motion to
establish temporary child support, and the only mention of this issue in
the Florida court’s order is the statement that “[t]he Court specifically
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reserves jurisdiction to determine entitlement and/or an award to the
[former wife] of her reasonable attorneys’ fees and costs pursuant to
Section 61.16 of the Florida Statutes.” (emphasis omitted). By its plain
terms, the Florida court has not yet determined whether the former wife is
“entitle[d]” to an attorney’s fees award, thus this court’s ruling on that
matter may be premature.
Secondly, we have determined that the Florida court had jurisdiction
with respect to child custody and child support matters, and we affirmed
(subject to several recalculations on remand) the imposition of $2,851
monthly child support payments, notwithstanding the CSA’s limiting
monthly child support to $300. I contend that the Michigan court limited
the reliance on the CSA to matters which did not concern child support or
child custody, and relinquished jurisdiction of these matters to the Florida
court in recognition that the parties’ two minor children were Florida
residents when their parents divorced.
The Third District Court of Appeal recently dealt with this issue, holding
that “where the issue in litigation requires the trial court to determine what
is in the best interests of the child, the trial court has the discretion to
award attorneys’ fees and costs pursuant to section 61.16,
notwithstanding any agreement between the parties purporting to
prospectively waive the right to seek an award of attorneys’ fees and costs.”
Helinski v. Helinski, 305 So. 3d 703, 708 (Fla. 3d DCA 2020). Helinski
relied upon this court’s opinions in Bernstein v. Bernstein, 498 So. 2d 1270(Fla. 4th DCA 1986), and Engelsen v. Landers, 699 So. 2d 1031 (Fla. 4th
DCA 1997). Helinski, 305 So. 3d at 708.
In Engelsen, the parties were not married and the agreement with the
attorney’s fees waiver related solely to child support and custody. 699 So.
2d at 1032. Nonetheless, citing and quoting Bernstein, we held that “a
contract dealing with child support ‘will be given effect only to the extent
that it is in the best interests of the child’” and that “[t]he point of Bernstein
is that if the parents cannot contract away a court’s ability to act in the
best interest of their child, then they cannot contract away one party’s
ability to obtain an advocate to see that the full story is developed in a
child related proceeding.” Id. (quoting Bernstein, 498 So. 2d at 1272).
The instant case involves a CSA which was drafted to address all issues
pertinent to the dissolution of marriage. However, the Michigan court
struck the provisions related to child support and custody from the parties’
proposed final judgment of divorce, and relinquished jurisdiction on these
matters to the Florida court. Thus, the CSA’s attorney’s fees waiver is
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more attenuated here than it was in Engelsen, where it solely related to
child custody and child support matters.
Accordingly, I would not reverse the circuit court’s order on the
attorney’s fees issue, as the CSA standing alone does not preclude an
attorney’s fees award. I would thus leave it to the Florida court to address
whether the Rosen factors entitled the former wife to an award of attorney’s
fees. See Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) (“[T]o ensure
that both parties have similar access to competent legal counsel, the trial
court must look to each spouse’s need for suit money versus each spouse’s
respective ability to pay.”). On this issue, I respectfully dissent.
* * *
Not final until disposition of timely filed motion for rehearing.
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