LISA BELL v. ZACHARY BROCH

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LISA BELL,
Appellant,
v.
ZACHARY BROCH,
Appellee.
No. 4D16-3563
[September 27, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; John L. Phillips, Judge; L.T. Case No. 50-2015-DR-
009036-XXXX-NB.
Lisa Bell, Palm Beach Gardens, pro se.
Gary D. Weiner and Scott M. Weiss of Weiner & Weiss, LLC, Boca
Raton, for appellee.
PER CURIAM.
The wife appeals a final judgment of dissolution of marriage, raising
multiple issues on appeal. We affirm without discussion all issues except
one. We find merit in the wife’s challenge to child support awarded to the
husband and, as such, we reverse on that issue. 1
The parties were married in 2001 and had two children. Following a
petition for dissolution of marriage, the parties entered into a Partial
Mediated Marital Settlement Agreement (“MSA”), which decided all matters
except for child support, timesharing, and the parenting plan. In the MSA,
the parties stipulated that for purposes of calculating child support, the
husband’s gross income is “$22,805 monthly” and “the Wife’s income shall
be imputed at zero until September 1, 2018 and thereafter at
1The wife also raises an issue with respect to her motion for contempt of alimony.
Because this concerns matters that occurred after the amended final judgment,
this court is without jurisdiction to consider this issue. See Fla. R. App. P.
9.110(h); Lauderdale Marine Ctr., Ltd. v. MYD Marine Distribs., Inc., 31 So. 3d 256,
257 (Fla. 4th DCA 2010).
$27,500 yearly.” The wife’s financial affidavit introduced into evidence at
trial also showed the wife had no income and had been a homemaker for
fifteen years. The trial court entered a final judgment of dissolution of
marriage adopting and incorporating the MSA and awarding 100 percent
of the timesharing to the husband. The order dissolving the marriage did
not decide the issue of child support. The wife filed a notice of appeal. A
few months later, the trial court issued an amended final judgment
ordering the wife to pay $1,941 per month in child support.
The wife challenges the trial court’s award of child support because it
is in conflict with the MSA. The husband argues that this court does not
have jurisdiction over the child support order because it was entered after
the wife filed a notice of appeal. We find that the wife’s notice of appeal
was premature. The order dissolving the parties’ marriage was not a final
judgment because it did not decide the issue of child support. See Wilson
v. Wilson, 906 So. 2d 356, 357 (Fla. 1st DCA 2005) (holding that an order
dissolving marriage but reserving jurisdiction over child support is not
final). However, jurisdiction vested in this court upon the trial court’s
issuance of the amended final judgment which resolved the issue of child
support. See Fla. R. App. P. 9.110(l). Therefore, the issue of child support
is properly before this court.
Because the wife prematurely appealed, the record does not include all
matters occurring between the order dissolving the marriage and the
amended final judgment. Despite an inadequate record, “when the error
appears on the face of the judgment, it should be corrected.” Larocka v.
Larocka, 43 So. 3d 911, 913 (Fla. 5th DCA 2010). See also Kanter v.
Kanter, 850 So. 2d 682, 684 (Fla. 4th DCA 2003) (“[A]n appellate court
may reverse an order or judgment even in the absence of an adequate
record where such order or judgment is fundamentally erroneous on its
face.”); McCants-Collie v. Collie, 909 So. 2d 360, 360-61 (Fla. 4th DCA
2005) (reversing error apparent on the face of the record in calculating
child support).
The trial court’s award of $1,941 per month in child support to the
husband is error on the face of the judgment because it is in conflict with
the terms of the MSA. In arriving at this figure, the trial court used a child
support guidelines worksheet which listed the wife’s net monthly income
as $7,302. This was contrary to the MSA, wherein the parties stipulated
that for purposes of calculating child support, “the Wife’s income shall be
imputed at zero until September 1, 2018 and thereafter at $27,500 yearly.”
A marital settlement agreement as to child support is binding on the
parties, subject to the court’s review that it is in the best interests of the
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children. Chovan v. Chovan, 90 So. 3d 898, 901 n.1 (Fla. 4th DCA 2012);
Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). See also
Armstrong v. Armstrong, 623 So. 2d 1216, 1217 (Fla. 4th DCA 1993)
(holding that a pretrial stipulation as to the parties’ relative incomes is
binding upon the parties and the court). The MSA became binding when
the trial court adopted and incorporated the MSA into the order dissolving
the marriage. See Fla. Fam. L. R. P. 12.740(f)(2).
In light of the foregoing, the child support guidelines worksheet and the
amended final judgment ordering the wife to pay $1,941 per month in child
support are in conflict with the terms of the MSA. Accordingly, we reverse
and remand for the trial court to resolve the conflict and recalculate the
wife’s child support obligation. See McCants-Collie, 909 So. 2d at 360
(finding error on the face of the record where the trial court found the
husband’s income to be $5,577 but the child support guidelines worksheet
reflected an income of $577); Chovan, 90 So. 3d at 898 (reversing where
settlement agreement stated child support would be based on two
children, but final judgment encompassed three children); Griffith v.
Griffith, 860 So. 2d 1069 (Fla. 1st DCA 2003) (reversing where final
judgment disregarded parties’ settlement agreement concerning child
support). We affirm the remaining issues.
Affirmed in part, reversed in part, and remanded.
WARNER, DAMOORGIAN and LEVINE, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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