Department of Health & Rehabilitative Services ex rel. Heinold v. Schwass, 622 So. 2d 578

Department of Health & Rehabilitative Services ex rel. Heinold v. Schwass

622 So. 2d 578 | Fla. Dist. Ct. App. | 1993

Lead Opinion

THOMPSON, Judge.

The appellant (the former wife) seeks reversal of an Order of Support requiring the appellee (the former husband) to pay child support in the amount of only $108.00 per month and denying all costs requested by the appellant when the statutory guidelines require the appellee to pay $190.62 per month. We reverse and remand with *579directions to enter a child support order consistent with the statutory guidelines.

The appellant and the appellee were married in Arizona on 19 September 1982 and a final judgment of dissolution was entered on 10 September 1985 in Arizona. The final decree required child support in the amount of $180.00 per month for Ryan Schwass, a child born of this union. Subsequent to the dissolution, the appellant moved to Oklahoma and the appellee moved to Deland, Florida. At the time this action was initiated through the Child Support Enforcement Department of the Department of Health and Rehabilitative Services (DHRS), the appellee was in arrears in the amount of $10,224.00.

The trial court heard testimony from the appellee and determined that he was employed and had a gross monthly income of $1,065.00 and a net monthly income of $864.00. Although unemployed, the court imputed a monthly income for the mother of $736.00. The court also received testimony from the DHRS that the guideline support calculation pursuant to section 61.-30(6), Florida Statutes (1991), requires ap-pellee to pay $190.62 per month. The trial court deviated from the guideline and entered an order for $108.00 per month. Pursuant to Florida law, the trial court did enter a written order explaining the reasons for this deviation. Glover v. Glover, 601 So.2d 231 (Fla. 1st DCA 1991). The court’s order, in full, stated:

Guidelines of $190.00 (sic) deviated from because of unrealistic net income and Respondent’s attempt to rehabilitate himself.

Apparently the trial court was referring to the appellee’s testimony that he had suffered from a drug problem, was currently living in a drug program’s halfway house and that he had recently completed a drug rehabilitation program sponsored by ACT. No matter how worthy the attempt of the appellee to change and improve his life, the written reasons do not support a deviation from the statutory guidelines.

Section 61.30(6), Florida Statutes (1991), is mandatory and must be followed in order to achieve stability and uniformity in the area of child support. Neal v. Meek, 591 So.2d 1044 (Fla. 1st 1991). The statute does allow deviation based upon valid reasons. See Section 61.30(10), Florida Statutes (allowing a deviation from the mandatory child support guidelines for such factors as extraordinary medical, psychological, educational or dental expenses; the age of the child; independent income of the child; and the total amount of assets available for child support when the total income and the assets of the parents and child are considered). However, an effort at drug rehabilitation is not a valid reason and is not a legal reason for the trial court to reduce the court ordered support that is necessary to financially provide for a child. Public policy requires that parents who are financially able support their children. Wollschlager v. Veal, 601 So.2d 274 (Fla. 1st DCA 1992). The trial court’s order provides less support for the child than both the original court order and the statutory guidelines even though the father is in arrears and has the financial ability to pay the amount required by statute.

The Order of Support is reversed and remanded with directions to enter a child support order consistent with the statutory guidelines.

REVERSED and REMANDED.

HARRIS, C.J., concurs and concurs specially, with opinion. GOSHORN, J., dissents with opinion.

Concurrence Opinion

HARRIS, Judge,

concurring and concurring specially:

I acknowledge, with the same concern, the dissent’s comments about the inappropriate presentation of the “statement of evidence” in this appeal. I find, however, that the judge’s order, in and of itself, is sufficient to warrant reversal. In its order, the trial court expressly acknowledged that the child support guidelines require the former husband to pay $190.00 per month; yet the court ordered a monthly payment of only $108.00.

The court’s written reasons for departure from the guidelines were:

*5801. Unrealistic net income. Stated another way, the trial court disagrees with the deductions from gross income permitted by the statute. This is not a valid reason for refusing to apply the guidelines.

2. Respondent’s attempt to rehabilitate himself. While this is a commendable undertaking, the trial court does not explain why legitimate child support should be diverted to this effort. If there is a valid reason, the trial court should include it in his order justifying departure from the guidelines.

Dissenting Opinion

GOSHORN, Judge,

dissenting.

I respectfully dissent. The trial court’s order on child support comes to this court clothed with a presumption of correctness and the appellant has the burden to bring forward a record that demonstrates reversible error or an abuse of discretion. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); Fenner v. Fenner, 599 So.2d 1343, 1345 (Fla. 4th DCA), appeal dismissed & review denied, 613 So.2d 3 (Fla.1992); Moore v. Moore, 512 So.2d 1141, 1141 (Fla. 1st DCA 1987). The appellant here has failed to carry its burden.

In lieu of a transcript of the hearing below, appellant prepared a document entitled “Appellant's Statement of Evidence,” to which the appellee apparently never responded.1 Upon appellant’s motion to approve the statement of the evidence, the trial court stated that it had no independent recollection of the hearing and neither approved or disapproved the proposed statement, but merely ordered the statement filed. An appellate court should reject a statement of the evidence that fails to comply with the requirements of Florida Rule of Appellate Procedure 9.200(b)(4), which provides the procedure for establishing a statement of the evidence or proceedings when no transcript is available. See Walt v. Walt, 596 So.2d 761, 762 (Fla. 1st DCA 1992); See also Hoover v. Sprecher, 610 So.2d 99, 100 (Fla. 1st DCA 1992); Wright v. Wright, 431 So.2d 177, 178 (Fla. 5th DCA 1983). Accordingly, I would reject the document proffered by appellant and conclude that the record on appeal in this case contains neither a transcript of the hearing nor an approved statement in compliance with Rule 9.200(b)(4). Because the record on appeal does not support appellant’s argument that the trial court abused its discretion by deviating from the support guidelines, I would affirm the trial court’s order.2

Not only do I find that the record on appeal does not support reversal, I further find that one of the trial court’s reasons for departure is valid and convincing and on that ground alone, I would affirm. The majority concedes that the court complied with the law by entering a written order explaining its reasons for deviating from the child support guidelines. See § 61.-30(l)(a), Fla.Stat. (1991) (providing that the trier of fact may order child support payments in a different amount from the guidelines upon a specific finding which explains why ordering the guidelines amount would be “unjust or inappropriate”). In this case, one of the express reasons stated by the trial court to explain its deviation from the guidelines was “unrealistic net income.”

The only evidence in the record on the issue of the appellee’s income is a one-page computer generated report, entitled “Support Guideline Calculations,” which was prepared by appellant before the hearing to allege the amount of monthly child support due by the parents under the child support *581guidelines. This report asserted that $1,039 was the amount of the appellee’s gross income, without any support or explanation other than the following handwritten notation, which appears at the bottom of the report: “NCP-6hr x 40 = 240 X 4.33 =1039.” A fair reading of the trial court’s reason for deviation shows that whatever evidence was presented at the hearing convinced the trial judge that the appellee’s net income as assessed by appellant was unrealistic. Because the record does not demonstrate that the trial court’s ruling was not within the evidence presented at the hearing, the order should be affirmed.

. The appellant originally filed the petition for support in Oklahoma, pursuant to URESA (the Uniform Reciprocal Enforcement of Support Act). Even though the record indicates that the appellee resides in Deland, Florida, where HRS served the notice of appeal on the appellee by mail, HRS purportedly served the statement of the evidence and the motion to approve it on the appellee by mail to a different address in Mantón, Michigan.

. Contrary to the assertion of the majority, the trial court made no determination that the ap-pellee had a net monthly income of $859. No such finding is in the court’s order nor does the record contain a transcript from which we could determine if the court made such a finding at the hearing on the appellant's petition for support.