FALLON JOHNSON v. JACOREY JOHNSON

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
FALLON JOHNSON,
Appellant,
v.
JACOREY JOHNSON,
Appellee.
No. 4D20-504
[March 24, 2021]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Karen M. Miller, Judge; L.T. Case No. 50-2018-DR-003248-
XXXX-NB.
Lisa Paige Glass of Glass Law Office, P.A., Boca Raton, for appellant.
James L. Green of Law Office of James L. Green, P.A., Jupiter, for
appellee.
CONNER, J.
Fallon Johnson (“Former Wife”) appeals the trial court’s final judgment
dissolving her marriage to Jacorey Johnson (“Former Husband”).
Although Former Wife raises numerous issues on appeal, we find merit in
only two of her arguments, namely that the trial court erred in designating
the child’s school boundary determination and the child support
calculation. We reverse as to those two issues, as discussed below, and
affirm the remaining issues without discussion.
Background
Prior to the petition for dissolution of marriage, the parties resided in
their home in Palm Beach County with their minor child. Eventually,
Former Husband moved to St. Lucie County. Upon filing for divorce,
Former Wife’s petition requested the trial court order a parenting plan for
the minor child if she and Former Husband were unable to agree to one,
but made no other specific request as to timesharing.
Later, Former Husband filed a motion for temporary relief requesting
equal timesharing with Former Wife. In response, the trial court ordered
the parties to follow a model parental timesharing schedule, giving Former
Husband timesharing with the minor child every other weekend beginning
on Friday. Pursuant to the child support guidelines worksheet, the trial
court also ordered Former Husband to pay temporary child support of
$447.26 a month, which was the net remaining after Former Husband
paid the childcare expenses of $600 a month.
Eventually, Former Wife and the child moved out of the marital home
and into her sister’s home in Broward County. Upon learning Former Wife
had moved the child to Broward County, Former Husband filed an
emergency motion to have the child returned to Palm Beach County, where
Former Husband once again resided. He alleged that Former Wife lacked
permission to move the child and that she had no need to relocate other
than to deprive him of time with the child. Determining the motion did
not constitute an emergency, the trial court denied the motion without
prejudice to pursue the matter on a nonemergency basis. Former
Husband never refiled the motion.
At trial, Former Husband’s financial affidavit was entered into evidence,
which reflected: (1) his salary; (2) he does not actually pay child support
for any other children; (3) he pays $49 in union dues each month; and (4)
his monthly health insurance payments, including dental and excluding
any portion paid for any minor children outside of the relationship, was
$176 per month. Upon testifying, Former Husband: (1) provided an
estimate as to his salary, seemingly consistent with the affidavit; (2) did
not provide any testimony as to whether he actually pays child support for
any children; (3) did not testify as to his union dues; and (4) stated that
his health insurance plan is a one-cost plan that covers five people,
including other adults.
Former Wife testified that despite the temporary child support order,
she paid all the childcare costs for the year preceding trial. For that
reason, she requested that she be given credit for these expenses that
Former Husband was supposed to pay. Former Husband admitted that
he stopped paying for childcare when the child moved to Broward County.
As to timesharing, Former Wife requested that the prior court-ordered
arrangement continue. At the time of trial, Former Wife was still living in
Broward County. In support of her request, Former Wife explained that
the move to Broward County was necessary because the marital residence
was in foreclosure and made uninhabitable because the bills were not
paid, and that she was unable to secure other housing in Palm Beach
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County based on her income. On the other hand, in Broward County, the
child and Former Wife were able to secure housing. Following the move,
the child had to change physicians and preschools, and while in Broward
County, the child became school-aged and started elementary school
where he made friends and played sports.
However, Former Husband requested approximately ten nights per
month in accordance with a different model schedule than the trial court
used in the order for temporary relief.
At the conclusion of closing arguments, the trial court made no oral
finding or announcement of rulings, even when politely requested by
Former Wife’s counsel. Instead, the trial court asked the attorneys to
submit proposed final judgments with findings. Notably, at one point
during the trial, the trial court made an explicit observation that Former
Wife never sought temporary relief concerning timesharing, only seeking
temporary financial support.
In the final judgment, the trial court made findings pursuant to section
61.13, Florida Statutes (2019), regarding factors to consider for
timesharing. Significantly, the trial court found it was in the child’s best
interest to remain a resident of and attend school in Palm Beach County.
Hence, the trial court ordered the child’s return to Palm Beach County
within ten days. As to timesharing, the trial court provided the parties
with two options, depending on whether Former Wife chose to move back
to Palm Beach County. The options were embodied in two exhibits
attached to the final judgment, setting a time sharing schedule revolving
around the concepts of “primary residential parent” and “secondary
residential parent”: (a) Former Wife could move back to Palm Beach
County with the child, making her the primary residential parent and
giving Former Husband time with the child every Thursday afternoon to
Friday morning and every other weekend starting Thursday afternoon; or
(b) Former Wife could remain in Broward County and Former Husband
would be the primary residential parent, giving Former Wife time with the
child every other weekend starting Friday afternoon. The trial court also
noted in the findings that no testimony was provided regarding the child’s
community or school record.
Regarding the child’s education, the trial court designated Former
Husband’s address for purposes of the school boundary determination, if
the parties could not agree otherwise.
As to child support, the trial court ordered that Former Wife was
entitled to $453 per month if she relocated back to Palm Beach County,
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but, otherwise, Former Wife had to pay Former Husband $150.65 per
month—the adjusted amount for the $200 a month she would prepay for
childcare. The trial court also listed Former Husband’s net monthly
income with a deduction of $400 a month for child support for previous
relationships and $75 a month for union dues. Regarding health
insurance, the child support guidelines worksheet indicated that Former
Husband paid $110 in total monthly children’s health insurance costs,
but the child support guidelines income attachment indicated that he paid
$110 for health insurance costs “not for children per month.” 1
Former Wife gave notice of appeal.
Appellate Analysis
School Boundary Determination
A trial court’s decision regarding school designation is reviewed for
abuse of discretion. Bruce v. Bruce, 243 So. 3d 461, 464 (Fla. 5th DCA
2018) (citing Schwieterman v. Schwieterman, 114 So. 3d 984, 987 (Fla. 5th
DCA 2012)). “An appellate court will not disturb the trial court’s custody
decision unless there is no substantial, competent evidence to support the
decision.” Winters v. Brown, 51 So. 3d 656, 658 (Fla. 4th DCA 2011).
Former Wife argues that the trial court erred in designating Former
Husband’s address for the child’s school boundary determination because
it was unclear which parent would be the primary residential parent.
Former Husband argues that the trial court properly designated his
address because the trial court determined that it was in the child’s best
interest to live in Palm Beach County and there was no other Palm Beach
County address to use.
Section 61.13(2)(b)3., Florida Statutes (2015), requires a
parenting plan to contain a designation of residence for school
attendance. The determination must be made based on “the
best interests of the child.” Schwieterman, 114 So. 3d at 987
(citing 61.13(3), Fla. Stat. (2010)). The determination of the
1 Attached to the final judgment was a schedule of health insurance plans offered
to Former Husband through his employer. Based on the information provided
before and during trial, it appears that Former Husband took his employer’s
“Network Plan” which offered a single employee insurance for $37.47, an
employee + 1 for $120.89, and an employee + 2 or more for $175.98.
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best interests of the child is made by evaluating more than
twenty factors affecting the welfare and interests of the child.
§ 61.13(3), Fla. Stat. (2015). While the trial court is not
required to address each factor independently, it must, at a
minimum, find that its timesharing determination and school
designation is in the best interests of the child. Neville v.
McKibben, 277 So. 3d 1270, 1273 (Fla. 1st DCA 2017). This
finding must either be stated on the record or set out in the
order. Clark v. Clark, 825 So. 2d 1016, 1017 (Fla. 1st DCA
2002).
Bruce, 243 So. 3d at 464.
Although Former Wife argues that the trial court was penalizing her for
moving the child, since the trial court found that it was in the child’s best
interest to live in Palm Beach County, the trial court logically had to
designate a Palm Beach County address for the child’s school assignment.
See id. Accordingly, there was competent substantial evidence on the
record to support this designation.
The trial court, however, should have provided a contingent designation
in the event that Former Wife opted to move back to Palm Beach County
as the final judgment provided for, or simply stated that school designation
will be based on where the child primarily resides. As Former Wife argues,
school boards set policies as to where a child attends school based on
residential address. In particular, Palm Beach County mandates that a
student attend school where the student lives for the majority of the time.
Palm Beach County School Board Code No. 5.011 (2018). As a result, if
Former Wife moves to Palm Beach County, she would be forced to violate
either the final judgment or the Palm Beach County School Board Code
because the child would spend most overnights with her but either: (1) the
child would go to a school designated for Former Husband’s address in
violation of the code or (2) Former Wife could enroll the child in school near
her home but violate the final judgment. This is assuming that Former
Wife’s Palm Beach County residence would not be within the same school
zone as Former Husband’s address.
While the trial court based timesharing on the child’s best interests,
other factors are allowed to be included in determining the parenting plan,
and Former Wife’s inability to comply with the law in the above scenarios
should be taken into consideration. See § 61.13(3)(t), Fla. Stat. (2018)
(stating that the trial court should consider “[a]ny other factor that is
relevant to the determination of a specific parenting plan, including the
time-sharing schedule”). Accordingly, the trial court abused its discretion
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in mandating that Former Husband’s address be used for the child’s
school boundary determination. On remand, the trial court should modify
the final judgment so that the parents do not violate school board policies.2
Child Support Calculation
“The standard of review for a child support award is abuse of
discretion.” Smith v. Loffredo-Smith, 230 So. 3d 898, 899 (Fla. 4th DCA
2017). Furthermore, “a trial court’s decisions about support must be
supported by competent substantial evidence and factual findings
sufficient to enable this court to determine how the trial court made the
decisions it did.” Lennon v. Lennon, 264 So. 3d 1084, 1085 (Fla. 2d DCA
2019). However, “[w]hether a trial court’s mathematical computations are
correct is a question of law which is reviewed de novo.” Kareff v. Kareff,
943 So. 2d 890, 892 (Fla. 4th DCA 2006).
Former Wife argues that the child support award was based on an
incorrect determination of Former Husband’s gross and net income, and
that the trial court did not properly account for Former Husband’s failure
to pay the child’s daycare expenses for the year preceding trial. Former
Husband does not specifically respond to the individual arguments listed
below but generally counters that both parties presented their respective
financial information to the trial court which was used in the child support
determination.
First, to the extent Former Wife argues that Former Husband’s income
may have increased after his financial affidavit was submitted, there is no
evidence on the record to support that argument. At trial, Former
Husband testified roughly as to the gross amount of his salary, a rounded-
up amount different from the exact amount stated in his financial affidavit.
Therefore, the gross income the trial court based the child support award
on was sufficiently accurate.
2 We recognize that when the final judgment was issued, Former Wife did not
actually live in Palm Beach County and that the trial court’s order was based on
the current arrangement with Former Husband as the primary residential parent.
However, the trial court specifically ordered the possibility of Former Wife
becoming the primary residential parent, and it was appropriate for the trial court
to adjust the school boundary determination based on this possibility. See Rivera
v. Purtell, 252 So. 3d 283, 286 (Fla. 5th DCA 2018) (“[W]hen crafting a
timesharing plan, a trial court must be free to account for reasonably and
objectively certain future events.”).
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Second, Former Wife argues that the trial court erred when it deducted
$400 per month from Former Husband’s income for court-ordered child
support for a child from another relationship.
When calculating child support, the trial court deducts “[c]ourt-ordered
support for other children which is actually paid” to determine the parent’s
net income. § 61.30(3)(f), Fla. Stat. (2019) (emphasis added). Where there
is evidence that the parent has not been paying ordered child support, it
should not be deducted from the parent’s income. See, e.g., Dep’t of Rev.
ex rel. T.L.S. v. S.J.W., 113 So. 3d 85, 87 (Fla. 2d DCA 2013) (holding that
child support should not have been deducted from father’s income where
there was evidence that he did not actually pay child support).
Here, there is nothing in the record indicating Former Husband paid
child support for any other children. As such, the trial court erred in
making the deduction. Cf. Sierra v. Ellison, 677 So. 2d 406, 407 (Fla. 3d
DCA 1996) (explaining that where the record reflects that the parent is
“actually paying court-ordered child support” for prior children, that
amount should be deducted from the gross income).
Third, Former Wife correctly argues that the trial court erred by
factoring in Former Husband’s union dues as $75 per month where his
affidavit listed the expense as $49 per month. See § 61.30(3)(c), Fla. Stat.
(2019) (listing “[m]andatory union dues” as an allowable deduction to
determine the parent’s net income). Therefore, according to Former
Husband’s affidavit, the trial court erred in deducting an additional $26
from Former Husband’s gross income.
Fourth, Former Wife correctly argues that the trial court erred by
factoring in Former Husband’s “health insurance cost not for children” at
$110 per month, asserting it should have been $37.47 per month. See §
61.30(3)(e), Fla. Stat. (2019) (listing “[h]ealth insurance payments,
excluding payments for coverage of the minor child” as an allowable
deduction to determine the parent’s net income).
Here, the child support guidelines worksheet and the child support
guidelines income attachment do not align with the record evidence. The
former reflects that Former Husband paid $110 per month in health
insurance costs for children, while the latter reflects that he paid $110 per
month for himself. However, none of the employee-only healthcare plans
provided in the record cost $110 per month. Rather, the employee-only
monthly rate was $37.47, not $110. Accordingly, the health care
deduction for Former Husband himself was $72.53 higher than it should
have been.
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Finally, Former Wife argues that since Former Husband failed to pay
the child’s daycare expenses for the year preceding trial, the trial court
should have off-set her child support obligations or given her a lump sum
award.
Section 61.30(7), Florida Statutes (2019), states that
Child care costs incurred due to employment, job search, or
education calculated to result in employment or to enhance
income of current employment of either parent shall be added
to the basic obligation. After the child care costs are added,
any moneys prepaid by a parent for child care costs for the
child or children of this action shall be deducted from that
parent’s child support obligation for that child or those children.
Child care costs may not exceed the level required to provide
quality care from a licensed source.
§ 61.30(7), Fla. Stat. (2019) (emphasis added).
Since Former Husband testified that he did not pay for childcare once
Former Wife and the child moved to Broward County, the $600 per month
reduction in his child support payments was based on an expense he was
not incurring. Instead, Former Wife incurred expenses that should have
been prepaid by Former Husband and the trial court erred in not taking
this into account in the child support obligations. On remand, the trial
court should adjust the amount of child support owed to or by Former Wife
to account for the childcare costs Former Husband should have paid as
temporary support that was actually paid by Former Wife. See Knudson
v. Drobnak, 149 So. 3d 114, 114–15 (Fla. 4th DCA 2014) (finding that
arrearages for childcare expenses should be reduced by the period of time
the mother did not incur childcare expenses).
Conclusion
For these reasons, we reverse the portions of the final judgment
designating Former Husband’s address for the child’s school boundary
determination and the child support calculation. On remand, the trial
court shall modify the school boundary determination to account for the
possibility of Former Wife moving back to Palm Beach County and
recalculate the parties’ child support obligations in keeping with the
record. The trial court is permitted to take additional evidence as may be
needed to enter amendments to the final judgment in compliance with this
opinion.
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Affirmed in part, reversed in part, and remanded with instructions.
CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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