Melissa R. Boyd v. Timothy M. Boyd

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MELISSA R. BOYD,
Appellant,
v.
TIMOTHY M. BOYD,
Appellee.
Nos. 4D14-198 and 4D14-1876
[July 1, 2015]
Consolidated appeals from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Renee Goldenberg, Judge; L.T. Case
No. 01-21063 (36).
Robert D. Burgs of Robert D. Burgs, P.A., Plantation, for appellant.
Catherine L. Roselli, Fort Lauderdale, for appellee.
CIKLIN, C.J.
In this post-dissolution case, the former wife appeals the trial court’s
order adopting a general magistrate’s report and recommendation. She
raises multiple grounds for reversal, one of which we find has merit. We
hold that the court erred in not establishing a child support arrearage
amount due and payable by the former husband.
The parties were divorced in 2002. The final judgment provided that
the former husband would pay $751.82 a month in child support for the
parties’ daughter. In 2012, the former wife petitioned for an upward
modification of child support based on an alleged increase in the former
husband’s income.
At trial, the parties offered evidence regarding the former husband’s
child support payments during the period the child was attending private
school. The former wife testified that the former husband offered to pay
$500 a month toward the child’s private school tuition, which cost
approximately $600 a month. The arrearage affidavit she offered into
evidence reflected that the former husband made no monthly payments
during the period of time the child attended private school. However, at
a deposition, the transcript of which was entered into evidence, the
former wife explained that the arrearage affidavit did not include any
payments until May 2003 because, until then, the former husband paid
the child’s school directly so she was not aware as to the specific amount
paid. The former husband testified that he could not remember exactly
what he paid, but he believed it was “$650, $680, $690, somewhere in
that range” each month for the sixteen-month period the child attended
private school.
The parties also offered evidence regarding the child support
payments made after the child left private school and entered the public
education system. The former husband testified he paid $500 a month
in child support. The former wife offered a record of payments she
created using bank records. That document reflected that the former
husband made some monthly payments, but he did not pay every month
and he did not always pay $500. The former wife calculated that the
former husband owed a total of $55,917.48 as of January 5, 2011.
The general magistrate did not set an arrearage amount and instead
made the following findings in her report:
Here, based upon the credible evidence at the hearing, along
with [the former wife’s] sworn testimony offered at her
deposition taken on December 1, 2011, the child support
was not paid through the State Depository and, by
agreement of the parties, was paid by [the former husband]
directly to Sheridan Christian School for tuition where the
Parties’ daughter attended school until she began attending
public elementary school. The undersigned does not find
[the former wife’s] testimony that she was unsure whether
[the former husband] made consistent payments to the
private school to be credible. As such, [the former wife] has
failed to show that the child support payments set forth in
the affidavit were not paid by [the former husband]; and
thus, is not entitled to civil contempt or enforcement on this
issue. Likewise, there is no credible evidence that the
arrearage amount set forth in the affidavit is owed by [the
former husband].
In the former wife’s written exceptions to the report, she objected to
the magistrate’s failure to establish an arrearage amount. After a
hearing on the exceptions, the trial court denied the former wife’s
exceptions and approved the report and recommendations issued by the
magistrate.
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On appeal, the former wife argues that the trial court erred in not
setting an arrearage amount. She claims the parties stipulated to a
maximum amount of arrearages and agreed that the former husband
could seek credits against that amount for payments he made for the
child’s school tuition years ago.
“A trial court’s decision to accept or reject a magistrate’s conclusions
is . . . reviewed for an abuse of discretion.” Kozell v. Kozell, 142 So. 3d
891, 893 (Fla. 4th DCA 2014) (citation omitted). ‘“A magistrate’s findings
are subject to being set aside by the trial court when they are clearly
erroneous or the magistrate misconceived the legal effect of the
evidence.’” Id. (quoting McNamara v. McNamara, 988 So. 2d 1255, 1258
(Fla. 5th DCA 2008)).
We find that the record does not support the former wife’s claim that
the parties stipulated to an amount of arrearages. The trial transcript
reflects that there were discussions about a stipulation, but the parties
did not clearly agree to a specified amount of arrearages that would serve
as a starting point against which credits could be applied. Nonetheless,
the trial court erred in approving the general magistrate’s report and
recommendation where it is clear that the parties expected the
magistrate to set an arrearage amount (and where there is sufficient
evidence available to set the amount)—but yet failed to do so. We
remand with two issues in mind.
First, an arrearage amount should have been calculated for the period
the child attended private school. We do not disturb the magistrate’s
credibility determination, adopted by the trial court, with respect to
whether the former husband made child support payments while the
child attended private school. However, the former husband’s own
testimony, found credible and relied on by the magistrate, established
that he did not pay the full court-ordered monthly amount during that
sixteen-month period. Where a party concedes that not all court-ordered
child support was paid, the trial court errs in failing to resolve the
amount of arrearages. See Bryer v. Bryer, 704 So. 2d 616, 617-18 (Fla.
4th DCA 1997).
Second, the magistrate did not make any credibility determination
with respect to testimony related to child support payments for the
period the child attended public school. This is the time period that
comprises the bulk of the arrearage amount. The magistrate essentially
found that it was not necessary to set an arrearage amount because the
former wife did not establish the amount she claimed in her affidavit was
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actually and specifically owed. Again, the former husband’s testimony
established that he did not pay the full court-ordered monthly amount.
Thus, it was a stipulated fact that there was an accumulated arrearage
but the amount was not addressed by the magistrate or the trial court.
The parties provided conflicting evidence on this issue, and the
magistrate or the trial court was required to resolve the conflict in
evidence and calculate an arrearage amount. Accordingly, the trial court
erred when it adopted the report and recommendation and therefore we
reverse and remand for the trial court to resolve the issue of arrearages.
Reversed and remanded with directions.
FORST and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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