VLADIMIR MASNEV v. ANNA MASNEV , 253 So. 3d 638 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
VLADIMIR MASNEV,
Appellant,
v.
ANNA MASNEV,
Appellee.
No. 4D17-1238
[August 15, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Nicholas Lopane, Judge; L.T. Case No. FMCE13-007229.
Gregory F. Betancourt of Gregory F. Betancourt, P.A., Miami Lakes, for
appellant.
William L. Gardiner, III of The W. L. Gardiner Law Firm, PLLC, Fort
Lauderdale, for appellee.
GERBER, C.J.
The former husband appeals from the trial court’s final judgment of
dissolution of marriage, which determined equitable distribution, child
support, and alimony. The former husband raises several arguments of
error, but we conclude only two have merit, as we discuss in turn below.
First, we reverse the trial court’s lump sum child support award to the
former wife, because no statutory or precedential authority allows for such
a lump sum child support award. If the Florida Legislature intended to
permit a lump sum child support award, then perhaps the Legislature
would have included such a provision within the child support provisions
of section 61.30, Florida Statutes (2016), as it did within the alimony
provisions of section 61.08(1), Florida Statutes (2016): “In any award of
alimony, the court may order periodic payments or payments in lump sum
or both.” On remand, as the former husband concedes, instead of a lump
sum child support award, the trial court may consider sequestering the
former husband’s assets to provide security for the child support award.
See Frank v. Frank, 587 So. 2d 668, 668 (Fla. 4th DCA 1991) (“[T]he trial
judge should have considered the sequestration and application of
appellant’s interest in the former marital home to discharge the support
obligation arrearages . . . .”); Cole v. Cole, 723 So. 2d 925, 927 (Fla. 3d
DCA 1999) (trial court did not abuse its discretion “in sequestering all of
the former husband’s share of the marital assets in a trust fund for future
child support, given the former husband’s current incarceration and
precarious immigration status in this country”).
Second, we reverse the trial court’s gross monthly income calculation,
because the trial court did not consider the in kind contribution for health
insurance which the former wife received from her business, and did not
include the former wife’s rental income. According to section
61.30(2)(a)13., Florida Statutes (2016), “[g]ross income shall include . . .
[r]eimbursed expenses or in kind payment to the extent that they reduce
living expenses.” Here, the former wife testified that her business paid
$300 a month for her health insurance, and $400 a month for the
children’s health insurance. However, the trial court did not reduce the
former wife’s living expenses by those amounts. Further, in the final
judgment, the trial court found the former wife’s gross monthly income
was $4,725, which included the former wife’s $4,500 salary from her
business and $225 in rental income. However, in the child support
guideline worksheet, the trial court noted the former wife’s gross monthly
income was $4,500. Thus, it appears the trial court erred in calculating
the former wife’s gross monthly income by not including her rental income.
We remand for a proper calculation.
Reversed and remanded for further proceedings consistent with this
opinion.
CIKLIN, J., concurs.
MAY, J., concurs in part and dissents in part with an opinion.
MAY, J., concurring in part and dissenting in part.
I concur with the majority’s opinion as far as it goes, but would also
reverse the judgment on the court’s imputed income to the former
husband. That imputation is not supported by competent, substantial
evidence. See Brown v. Cannady-Brown, 954 So. 2d 1206, 1207 (Fla. 4th
DCA 2007). The trial court appears to have solely relied on the former
husband’s historical earnings, which fails to reflect the former husband’s
present ability to pay. See Sallaberry v. Sallaberry, 27 So. 3d 234, 236
(Fla. 4th DCA 2010); Chipman v. Chipman, 975 So. 2d 603, 609 (Fla. 4th
DCA 2008).
I would therefore direct the trial court to recalculate the former
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husband’s income by considering his “employment potential and probable
earnings based on work history, qualifications, and prevailing wages in the
community.” Zarycki–Weig v. Weig, 25 So. 3d 573, 575 (Fla. 4th DCA
2009). Because the alimony and child support awards are directly based
on the imputed income determination, the trial court would necessarily
have to revisit those awards too. See Rabbath v. Farid, 4 So. 3d 778, 784
(Fla. 1st DCA 2009).
* * *
Not final until disposition of timely filed motion for rehearing.
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