Sharlotte HENDERSON, Appellant,
v.
Roderick L. HENDERSON, Sr., Appellee.
District Court of Appeal of Florida, Second District.
*902 Tаrya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant.
Karol K. Williams of Karol K. Williams, P.A., Tampa, for Appellee.
SALCINES, Judge.
Sharlotte Henderson, the Former Wife, appeals the circuit court's order which adopted a general master's report and recommendation in regard to the modification of child support and visitation sought by Roderick L. Henderson, Sr., the Former Husband. The Former Wife specifically challenges the downward modification of the Former Husband's child support obligation for the parties' minor child as well as a portion of the ruling regarding visitation. We reverse and remand.
The underlying final judgment of dissolution entered in 1998 provided that the Former Husband would pay child support at a rate of $393.81 per month and that he would have frequent and continuing contact and communication with the pаrties' minor child. Subsequent to the entry of the final judgment, the Former Wife filed a supplemental petition for modification seeking an increase in child support. The Former Husband, in response, sought a reduction of his existing child support obligation and the implementation of a specific visitation schedule. The parties' respective petitions were heard by a general master. The findings of the general master were set forth in a report and recommendation, and exceptions were filed. The circuit court denied the exceptions and adopted the general master's reрort and recommendation.
*903 In the report and recommendation, the general master determined what each parties' portion of the child support obligation should be. That determination was based, in part, on hypothetical assumptions. The general master found that the Former Husband had one child from a relationship prior to the marriage, imputed income to the mother of the previously born child, and determined that the Former Husband's child support obligation for that child would be $603 per month. The general master also found that the Former Husband had two children from a relationship subsequent to the marriage and determined that the Former Husband's child support obligation for those children would be $854 per month. The general master then deducted those amounts from the Former Husband's gross income. The general master made no findings that the foregoing amounts were court ordered and actually paid by the Former Husband.
After reducing the Former Husband's gross income, the general master determinеd that the Former Husband's child support obligation for the parties' minor child should be reduced to $272 per month.
The general master also set forth a visitation schedule and, in this regard, recommended the fоllowing:
That the Court reserve jurisdiction to reassess the visitation for potential expansion after the parties have accommodated the current change in the visitation. The Former Husband does not need to show a substantial change for the Court to consider the expansion of his visitation and the Court shall look at the best interests of the child.
The circuit court adopted the repоrt and recommendation in toto. No transcript of the hearing before the general master was provided to the circuit court or to this court.
While a trial court cannot overturn a general master's findings of fact unless they are clearly erroneous, it can and should reject a general master's recommendation if it misconceives the legal effect of the evidence. See, e.g., Ares v. Cypress Park Garden Homes I Condo. Ass'n,
As the Fоrmer Wife failed to provide, for this court's review, a transcript of the hearing before the general master, the Former Husband argues this is fatal to her appeal. In many circumstances, the Former Husband's contention would be correct. However, while a conclusion or decision of the lower tribunal will generally be affirmed if the evidence or an alternative theory supports it, a miscоnception of a controlling principle of law can constitute grounds for reversal. See Applegate v. Barnett Bank of Tallahassee,
A question of law, as opposed to a question of fact, receives de novo review by this court. Hoelzle v. Shapiro,
The Former Wife challenges the downward modification of the Former Husband's child suрport obligation. The downward modification was not deemed a deviation from the child support guidelines (as expressly reflected on each guidelines worksheet prepared by the genеral master), but rather, it resulted from a calculation *904 in which the general master reduced the Former Husband's gross income figure by subtracting certain deductions. Those deductions included support amounts for previously and subsequently born children.[1] To establish those amounts, the general master completed a child support guidelines worksheet for the previously and subsequently born children making a variety of assumptions which can best be described as "hypothetical." The general master attached those worksheets to the report and recommendation making a specific reference to the worksheets in that report.
The general master's calculations were facially erroneous. Section 61.30(3), Florida Statutes (2003), lists deductions to be taken from gross income in order to determine each parent's net income. Only the items listed in the statute may be taken as deductions from gross income. Copeland v. Copeland,
In the present case, the general master deducted from the Former Husband's gross income the hypothetical amounts calculated in the worksheets rather than an actual amount of paid, court-ordered child support. This was imprоper. See Sierra v. Ellison,
Thе Former Wife also challenges the ruling which attempts to prospectively modify the appropriate standard to be applied *905 to any future modification of visitation which may be sought by the Former Husband. A trial court may not modify visitation unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since the entry of the custody and visitation order, and (2) that the welfare of the child will be promoted by a change in custody and visitation. See Knipe v. Knipe,
Reversed and remanded for further proceedings consistent herewith.
SILBERMAN and VILLANTI, JJ., Concur.
NOTES
Notes
[1] The Former Wife suggests that the general master might have included a deceased child in the calculations. Although the parties acknowledge that one of the subsequently born twins is deceased, there is some suggestion in the record that the Former Husband had another child after the death of that child. The Former Husband claims to have a number of children. It is unclear how many children the Former Husband actually has and whether any of his children have reached majority or are children to whom he owes no duty of support. Due to the lack of a transcript, we must dеfer to the general master's factual findings concerning the number of previously and subsequently born children for which the Former Husband would arguably owe some kind of support.
[2] The Former Wife also raised concerns regarding whether the Former Husband's support for his other children would have justified any deviation from the child support guidelines amount. While the obligation to support children not subject to any priоr support action is not an allowable deduction from gross income, in some circumstances it is a matter that can be considered as grounds for a deviation under other provisions of section 61.30. See Hutslar,