Department of Revenue v. Nathali C. Sanchez and Malgrot Nunez , 196 So. 3d 1271 ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DEPARTMENT OF REVENUE, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-3367
MALGROT NUNEZ,
Appellee.
_____________________________/
Opinion filed August 4, 2016.
An appeal from an order of the Division of Administrative Hearings.
Robert E. Meale, Judge.
Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney
General, Tallahassee, for Appellant.
No appearance for Appellee.
PER CURIAM.
The Florida Department of Revenue appeals an order modifying Malgrot
Nunez’s child support obligation because the administrative law judge (ALJ) failed
to hold Mr. Nunez responsible for paying his 32% share of his child’s noncovered
medical expenses. We reverse the ALJ’s award, a dramatic deviation from the
statutory guideline amount, because the reasons given for the deviation are
insufficient as a matter of law.
After an administrative hearing was held, the ALJ below found that Mr.
Nunez’s net monthly income is $660, the child’s mother’s net monthly income is
$1,405.93, and the total monthly child support need under the Florida Child Support
Guidelines is $572. The trial court held that Mr. Nunez’s share of the total child
support need is $99 per month, i.e., 32% of $572, minus the $84 the child already
receives from Mr. Nunez’s Social Security Disability benefits. Mr. Nunez was also
ordered to pay an additional $6 per month in retroactive child support. Finally, the
ALJ held that Mr. Nunez was responsible for paying 0% of the child’s noncovered
medical expenses “due to a demonstrated inability to pay. He is a ward due to bipolar
disorder.”
Section 61.30, Florida Statutes (2014), provides child support guidelines that
“presumptively establish[] the amount the trier of fact shall order as child support in
. . . [a] modification of an existing order for such support.” § 61.30(1)(a), Fla. Stat.
(2014). The amount of the basic support monthly obligation is determined by
reference to a chart provided in section 61.30(6), which calculates that obligation on
the basis of the obligor parents’ combined income and the number of children they
share. Each parent is responsible for the amount of that basic obligation that
corresponds to his or her percentage share of the combined monthly net income.
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Section 61.30(7) provides that child care costs be added to this basic obligation.
Finally, according to section 61.30(8), noncovered medical expenses are added to
the obligation “unless these expenses have been ordered to be separately paid on a
percentage basis.” “[A]s a general rule, if noncovered medical expenses are ordered
to be separately paid, ‘absent some logically established rationale in the final
judgment to the contrary, [they] must be allocated in the same percentage as the child
support allocation.’” Mayfield v. Mayfield, 103 So. 3d 968, 972 (Fla. 1st DCA
2012) (quoting Zinovoy v. Zinovoy, 50 So. 3d 763, 764–65 (Fla. 2d DCA
2010)). See also § 61.13(1)(b), Fla. Stat. (2014).
Section 61.30(1)(a), however, provides that the trial court may order payment
of child support that varies, within five percentage points, from the guideline amount
“after considering all relevant factors, including . . . the financial status and ability
of each parent,” but may depart from this five percentage point limitation “upon a
written finding explaining why ordering payment of such guideline amount would
be unjust or inappropriate.” Section 61.30(11)(a) provides grounds upon which the
trial court may so deviate, including “[a]ny other adjustment which is needed to
achieve an equitable result which may include, but not be limited to, a reasonable
and necessary existing expense or debt.” § 61.30(11)(a)11., Fla. Stat. (2014)
(emphasis added); see also Dep't of Revenue v. Jackson, 846 So. 2d 486, 490 (Fla.
2003) (“[T]he trial court is vested with discretion to vary the support amount after
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considering all relevant factors, including, but not limited to . . . the financial status
and ability of each parent.”); Finley v. Scott, 707 So. 2d 1112, 1117 (Fla. 1998)
(“The court is then to evaluate from the record the statutory criteria of . . . the
financial status and ability of each parent[.]”).
In the case before us, the ALJ found that both parents’ combined net monthly
income was $2,065.93. The total monthly support need was therefore $452. See §
61.30(6), Fla. Stat. (2014). To this, child care expenses of $120 were added, for a
total of $572 in total monthly support need. Mr. Nunez’s basic support obligation
was $183.04, 32% of $572, corresponding with his percentage share of the combined
net monthly income. However, even though Mr. Nunez’s share of support was 32%
and the mother’s was 68%, the trial court held that Mr. Nunez was responsible for
paying 0%, and the mother 100%, of the child’s noncovered medical expenses. The
record indicates that the trial court’s sole basis for its finding that Mr. Nunez was
unable to pay any of his child’s noncovered medical expenses was his remaining net
monthly income, after child support, of $555.
This Court has previously held that low income is not a sufficient basis for
deviating from the statutory guideline amount because “a party's earnings are already
taken into consideration when calculating the guideline child support obligation of
the party.” Bolds v. Strong, 744 So. 2d 487, 488 (Fla. 1st DCA 1999)
(quoting McGhee v. Childress, 724 So. 2d 196, 197 (Fla. 1st DCA 1999)). In the
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present case, no evidence was proffered at the administrative hearing to support the
ALJ’s finding that Mr. Nunez was unable to pay anything toward the child’s
noncovered medical expenses. The ALJ merely took cursory notice of Mr. Nunez’s
net monthly income and his affliction with a serious mental illness (bipolar disorder)
without receiving any evidence of Mr. Nunez’s monthly expenses or costs associated
with his disability. Under this Court’s precedents, the ALJ’s reasons for finding Mr.
Nunez unable to pay any support toward the child’s noncovered medical expenses
are insufficient as a matter of law. In the absence of competent substantial evidence,
that finding also constituted abuse of discretion.
We emphasize that this Court’s holding here, as in Bolds and McGhee, should
not be construed as a denial of the trial court’s prerogative to deviate from the
statutory support guidelines on the basis of an obligor parent’s inability to pay.
Rather, we have held, and do hold today, that a trial court must not so deviate without
making specific findings of fact, based on competent substantial evidence, of such
inability. A mere notice of the absolute dollar amount of a parent’s net monthly
income is insufficient to establish inability to pay, but such a finding may be
appropriate when the trial court receives competent substantial evidence of a
parent’s monthly expenses, including expenses associated with a serious medical
condition. See Bolds, 744 So. 2d at 488 (“The trial court's unelaborated assertion
that the guideline amount would leave Mr. Strong unable to support himself because
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he makes minimum wage does not differ materially from the finding in McGhee.
Under McGhee, it does not amount to a ‘specific finding’ that would justify a
deviation from the guideline amount.”) (emphasis added).
Because mere notice of Mr. Nunez’s low income was an insufficient basis for
deviating from the statutory child support guidelines, we reverse the ALJ’s Final
Administrative Support Modification Order and remand with directions to order Mr.
Nunez to pay 32% of the child’s noncovered medical expenses.
REVERSED and REMANDED with directions.
ROBERTS, C.J., KELSEY and JAY, JJ., CONCUR.
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