606 So. 2d 391 | Fla. Dist. Ct. App. | 1992
This is an appeal from a final judgment modifying a divorce decree. The husband claims several errors. We find merit in his claims that the child support award was an abuse of discretion, that the modification should be retroactive, and that he was not accorded a hearing on attorney’s fee entitlement.
The trial court found that the husband’s net income was $13,000 a month, and the wife’s net income was $3,600 a month.
Under these circumstances, where both the wife and husband earn substantial incomes and the children stay with their father 40% of the time, the husband should not be obligated to pay one hundred per cent of the wife’s expenses to support the children, let alone an amount in excess of their needs. Even under Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980), we hold that this is an abuse of discretion. We do not believe this conflicts with this court’s recent decision of Asrani v. Asrani, 591 So.2d 283 (Fla. 4th DCA 1991), as the facts of that case were different. We would caution the Bar that an analysis of the Canakaris discretion standard depends upon the particularized facts of each case. Thus, it is wrong to interpret these cases to create a bright line percentage of income test, an award in excess of which will uniformly be held to be excessive or an award less than a certain percentage will be upheld without question.
On remand the trial court should also reconsider that portion of the order making the child support modification retroactive to the date of filing the petition. It is clear from the evidence that the husband had been making voluntary payments for the children’s benefit throughout the proceedings. At a minimum, he should have been given credit on any retroactive award for such portion of those payments which paid for expenses which the wife now claims as child support.
We also reverse on the issue of attorney’s fees. The parties entered into a pretrial stipulation reserving the issue of entitlement and amount of attorney’s fees and costs to a separate hearing. Nevertheless, the trial court determined entitlement
As to the remaining issues, we affirm.
. The husband disputes these figures, and there is much evidence in his favor. Nevertheless, there was also competent, substantial evidence to support the trial court’s figures.