Adkins v. Sotolongo

Third District Court of Appeal
State of Florida
Opinion filed August 3, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D16-603
Lower Tribunal Nos. 07-18012 & 01-5327
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Christa Adkins,
Appellant,
vs.
Michael Sotolongo,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Pedro P. Echarte, Jr., Judge.
Christa Adkins, in proper person.
Michael Sotolongo, in proper person.
Before SUAREZ, C.J., and SHEPHERD and ROTHENBERG, JJ.
SUAREZ, C.J.
The Mother appeals from the trial court’s non-final order granting the
Guardian ad Litem’s [GAL] motion to compel payment of the guardian ad litem
fees. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(C)(iii); see Garcia v.
Garcia, 560 So. 2d 403 (Fla. 3d DCA 1990). Because the parties apparently failed
to arrange for a recording of hearings, if any, on the GAL’s motion to compel
payment, our review is limited to errors that occur on the face of the order. See
Mobley v. Mobley, 18 So. 3d 724, 725 (Fla. 2d DCA 2009); Soto v. Soto, 974 So.
2d 403, 404 (Fla. 2d DCA 2007). We reverse and remand with directions.
In February, 2016 the court-appointed GAL moved to compel payment of
her fees, which have been substantially unpaid since her appointment in January
2015.1 The trial court granted the GAL’s motion to compel payment of her fees,
and did so by ordering the Father to divert $200 of his child support payment each
month directly to the GAL for payment of her fees, thereby reducing his overall
child support obligation, until further order of the court. The trial court ordered the
Father to make the remainder of his monthly child support payment to the Mother.
In addition, the trial court amended its order requiring the Father to pay monthly
child support to the central depository, to instead direct $100 into the central
depository for ongoing child support.2
1The Mother alleges that as of September 2015, the GAL’s fees have exceeded
$16,000 total.
2It is unclear from the record before us what the parties’ child support obligations
were before the current order on appeal was rendered.
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Although there may be evidentiary support below for the trial court's
decision to modify the Father’s child support obligation, we are compelled to
reverse because the trial court's order does not set forth specific statutory findings
as to the parties' income, the basis for the modified support amount, or any
justification for a departure from the guidelines. § 61.30(1) (a), Fla. Stat. (1995);
Hooper v. Hooper, 681 So. 2d 833, 833 (Fla. 1st DCA 1996); Jones v. Jones, 636
So. 2d 867 (Fla. 4th DCA 1994); see also, Hardy v. Hardy, 659 So. 2d 1246 (Fla.
1st DCA 1995); Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d DCA 2010)
(holding the failure to include findings regarding the parties' incomes for purposes
of child support calculations renders a judgment facially erroneous, and the
absence of a transcript does not preclude reversal on that basis).
More significant, however, is that part of the order directing the Father to
pay a portion of the GAL fees directly from his child support obligation. We find
this to be error, as child support payments may not be subordinated to attorney’s
fees, i.e., the court-appointed GAL’s fees. See, e.g., Rotta v. Rotta, 34 So. 3d 107,
108 (Fla. 3d DCA 2010); Brake v. Sanches-Lopez, 452 So. 2d 1071 (Fla. 3d DCA
1984) (holding an attorney’s charging lien is not enforceable against child support
payments); compare, Jaeger v. Jaeger, 182 So. 3d 697, 698 (Fla. 4th DCA 2015)
(holding a charging lien could not be asserted against an award of undifferentiated
family support where that included child support). See also Cortina v. Lorie, 95
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So. 3d 467, 468 (Fla. 3d DCA 2012) (finding accrued child support, or child
support in arrears, become vested rights of the payee and vested obligations of the
payor that are not subject to retroactive modifications, absent a pleading and proof
of compelling circumstances).
Finally, there are no findings in the order or record on appeal supporting the
GAL’s requested fees, what those services were or their claimed value. See In re
Hollenbeck's Estate, 137 So. 2d 854, 856 (Fla. 3d DCA 1962) (holding the trial
court has discretion to allow guardian ad litem fees if reasonable under the
circumstances, and the party moving for the fees has the burden to show through
testimony, affidavits or otherwise, the services performed and their reasonable
value). In addition, there is nothing in the order on appeal or the record before us
to indicate the trial court made any determination of the Mother’s or Father’s
current ability to pay the court-appointed guardian fees.3 We do not dispute that
the court-appointed guardian is entitled to payment but require that on remand the
trial court determine both the party or parties responsible for payment of the
guardian's fees and costs and the proper amount due.
We therefore reverse that portion of the order on appeal that purports to pay
the GAL’s outstanding fees from any child support payment, and the child support
payments status quo ante shall be restored. We remand with directions that the
3 The Mother consistently maintains that she is on public assistance and cannot
afford to make the fee payments.
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trial court consider the evidence supporting the GAL’s request for fees and include
in any order those findings necessary to justify the grant of reasonable fees for
specific and documented services rendered, and from whom those fees are due.
The hearing on the GAL’s motion to compel payment of fees shall not be used as a
means to modify child support obligations, and those fees, if granted, may not be
paid out of child support. If either the Father or the Mother files or has filed a
petition with the court to modify child support, the trial court shall expeditiously
hear the matter and include in any order rendered the necessary statutory findings
pursuant to section 61.30, Florida Statutes (2016).
Reversed and remanded with instructions.
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