Ivanovich v. Valladarez , 190 So. 3d 1144 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
ALEJANDRA IVANOVICH, )
)
Appellant, )
)
v. ) Case Nos. 2D14-1325
) 2D14-4216
FERNANDO VALLADAREZ, )
) CONSOLIDATED
Appellee. )
)
Opinion filed May 4, 2016.
Appeals from the Circuit Court for Polk
County; Keith Spoto and William D. Sites,
Judges.
Elizabeth S. Wheeler of Berg & Wheeler,
P.A., Brandon, for Appellant.
No appearance for Appellee.
MORRIS, Judge.
Alejandra Ivanovich, the former wife, appeals a February 2014 order
entered in postdissolution of marriage proceedings between her and her former
husband, Fernando Valladarez. She also appeals an August 2014 order denying her
motion to vacate the February 2014 order. We affirm without comment the August 2014
order denying the former wife's motion to vacate the February 2014 order, but we
reverse the February 2014 order based on several errors apparent from the face of the
order.
I. Background
The parties were divorced in 2005. They have one minor child from the
marriage. In November 2009, the former husband filed a postjudgment emergency
motion for temporary custody of the child and to prevent the former wife from removing
the child from the state. The trial court granted that motion in December 2009,
temporarily placing the child in the custody of the former husband. In June and July
2010, the parties filed competing petitions for modification relating to the custody of the
child. In November 2011, the trial court entered an order on the modification petitions in
favor of the former husband but reserving jurisdiction on the financial issues.
A hearing was not held on the reserved financial issues until October
2013. The former wife's counsel attended the hearing, but the former wife did not. The
trial court entered an order on the reserved financial issues in February 2014. The
former wife appeals the February 2014 order in case 2D14-1325, and in that case, this
court granted her request to relinquish jurisdiction so that she could file in the trial court
a motion to vacate the February 2014 order. After a hearing, the trial court denied the
former wife's motion to vacate by written order in August 2014. The former wife appeals
the August 2014 order in case 2D14-4216. As mentioned above, we affirm without
comment the August 2014 order, but we reverse the February 2014 order in several
respects.
II. Discussion
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The former wife first contends that in the February 2014 order, the trial
court erred in ordering child support retroactive to December 17, 2009, which predated
the former husband's request for child support made in his petition for modification filed
on July 28, 2010.
In his motion for temporary custody filed in November 2009, the former
husband did not request that child support be paid by the former wife. He was granted
temporary custody of the child on December 17, 2009. The order suspended the former
husband's child support obligation, but it did not order the former wife to pay child
support. The parties then filed their competing petitions for modification in June and
July 2010, and in his petition, the former husband requested child support from the
former wife. He also requested "credit/repayment of any sums of child support he paid
after initiating his action to have the minor child returned" to Florida in November 2009,
but he did not request retroactive child support from the former wife to that date. Yet,
the February 2014 order under review states that the former husband "is entitled to child
support from the former wife retroactive to the date he received legal custody of the
minor child, which was December 17, 2009." The trial court found the former wife's
"child support obligation as of December 17th, 2009[,] to be $533.72 per month."
"Both the relevant statute and case law provide that a retroactive child
support obligation may not be imposed prior to the filing of a petition seeking a
modification." Webber v. Webber, 56 So. 3d 822, 823 (Fla. 2d DCA 2011) (holding that
trial court could not order mother to pay child support retroactive to date that child
moved in with father when father's petition for modification of child support was filed five
months later); see also § 61.14(1), Fla. Stat. (2009 & 2010) (providing that upon a
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request for modification, trial court may modify child support "retroactively to the date of
the filing of the action or supplemental action for modification as equity requires"). Here,
the former husband sought custody in December 2009, but he did not seek a
modification of child support at that time. The trial court was bound by his pleading.
See Owens v. Eshelman, 712 So. 2d 472, 473 (Fla. 1st DCA 1998) ("In a custody
proceeding, the court is precluded from entering a judgment on any matter outside the
issues framed by the pleadings."). The former husband's request for modification of
child support was not made until July 2010, when he sought permanent custody.
Therefore, the trial court erred in ordering child support retroactive to December 2009.
We note that the former wife failed to provide this court with a transcript of
the October 2013 hearing held on the financial issues. However, the trial court's ruling
that the former husband is entitled to child support from the former wife retroactive to
the date he received custody of the minor child is an error of law that is apparent from
the face of the judgment. See Soto v. Soto, 974 So. 2d 403, 404 (Fla. 2d DCA 2007)
("[E]ven where the appellant fails to provide a transcript, the absence of a transcript
does not preclude reversal where an error of law is apparent on the face of the
judgment." (quoting Chirino v. Chirino, 710 So. 2d 696, 697 (Fla. 2d DCA 1998))). The
relevant date for purposes of child support is not the date the former husband received
custody of the child; it is the date the former husband filed a pleading seeking
modification of child support. Because the legal error is clear from the judgment, we
reverse the February 2014 order on this issue.
The former wife also claims that the trial court erred in failing to make
findings regarding the parties' gross incomes or deductions from income in a manner
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that would allow this court to review the trial court's calculations for purposes of child
support. "It is well-settled that a trial court errs by failing to make findings of fact
regarding the parties' incomes when determining child support." Wilcox v. Munoz, 35
So. 3d 136, 139 (Fla. 2d DCA 2010). Specific "findings regarding the parties' incomes
are necessary for a determination of whether the support ordered departed from the
guidelines and, if so, whether that departure was justified." Id. (citing Jones v. Jones,
636 So. 2d 867, 867 (Fla. 4th DCA 1994)). "[T]he failure to include findings regarding
the parties' incomes for purposes of child support calculations renders a final judgment
facially erroneous, and the absence of a transcript does not preclude reversal on that
basis." Id.The trial court imputed a specific income to the former wife, but the trial
court did not make specific findings regarding the former husband's income. The trial
court did attach a guidelines worksheet that included specific findings of net income for
both parties. Thus, the only findings that are absent are findings regarding how the trial
court arrived at the parties' net incomes from their gross incomes. The guidelines
require the calculation of a party's net income from gross income. See §§ 61.30(2), Fla.
Stat. (2010) (requiring a determination of gross income), 61.30(3) (requiring the
determination of net income by subtracting certain allowable deductions from gross
income); see also Pedroza v. Pedroza, 779 So. 2d 616, 618-19 (Fla. 5th DCA 2001)
("The trial court is required to determine net income based upon section 61.30, Florida
Statutes, by determining 'gross income' . . . and then subtracting from this figure
'allowable deductions' . . . ."); Savery v. Savery, 670 So. 2d 1034, 1035 (Fla. 4th DCA
1996) (reversing for trial court to "make a specific finding as to the parties' net incomes,
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derived from their gross incomes minus the allowable deductions set forth in section
61.30(3)"). Thus, the lack of findings regarding gross income prevents this court from
determining whether the trial court erroneously departed from those relevant parts of the
guidelines, and we reverse the February 2014 order in this regard.
The former wife also argues that the trial court erred in directing her to pay
the transportation expenses for visitation. "[T]he expenses of visitation are part of the
parties' childrearing expenses that must be addressed as part of the parties' child
support obligations." Perez v. Fay, 160 So. 3d 459, 466 (Fla. 2d DCA 2015); see also
Drakulich v. Drakulich, 705 So. 2d 665, 667 (Fla. 3d DCA 1998) ("The expense of
transporting the minor child for visitation is a childrearing expense like any other. . . .
The expense of transporting the child for visitation must be evaluated within th[e]
framework [of section 61.30]."). The trial court erred in not factoring this expense into
the child support calculations, and we reverse for reconsideration of this issue.
Last, the former wife contends that the trial court erred in failing to make
specific factual findings supporting its award of attorneys' fees and costs to the former
husband. In the February 2014 order, the trial court found that the former wife must pay
$602.14 to the former husband for the cost he spent in retrieving the child from the
former wife in Maryland in 2009 and that the former wife must pay the former husband's
$1980 attorneys' fees and costs spent on that legal matter. But in its order, the trial
court did not make any findings of need and ability to pay, which are the primary
considerations in family law cases in regard to attorneys' fees and costs. See §
61.16(1); Perez v. Perez, 100 So. 3d 769, 771 (Fla. 2d DCA 2012). The trial court may
have awarded the costs and fees to the former husband based on the former wife's
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conduct, but in doing so, the trial court was required to make express findings to that
effect. See Hahamovitch v. Hahamovitch, 133 So. 3d 1020, 1025 (Fla. 4th DCA 2014)
(citing Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002)). Moreover, even
though the trial court found that the former husband's request is "reasonable as to the
time expended and hourly rate therefor" and awarded that amount plus interest, the trial
court did not make any findings regarding the reasonable hourly rate and number of
hours expended. See Harris v. McKinney, 20 So. 3d 400, 403 (Fla. 2d DCA 2009). The
lack of findings supporting the award of attorney's fees is reversible error despite the
former wife's failure to provide an adequate record of the hearing. See Macarty v.
Macarty, 29 So. 3d 434, 435 (Fla. 2d DCA 2010).
Accordingly, we reverse the February 2014 order for the reasons and to
the extent explained above and remand for further proceedings consistent with this
opinion.
Affirmed in part; reversed in part; remanded.
CASANUEVA and SALARIO, JJ., Concur.
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