DISSOLUTION OF MARRIAGE, RELIEF FROM JUDGMENT
In Khan v. Khan, 38 FLW D1337 (Fla. 4th DCA), opinion filed June 19, 2013, the Husband appealed the trial court's denial of his motion to vate an order dated January 25, 2010, entitled Final Final Judgment of Uncontested Dissolution of Marriage with Minor Children (hereafter the “2010 judgment”). The motion at issue in this case was filed pursuant to Florida Rule of Civil Procedure 1.540(b) and requested relief from the 2010 judgment due to mistake, inadvertence and/or excusable neglect by the husband. After an evidentiary hearing, the trial court entered an order on February 16, 2012, denying the motion to vacate. In the order, the trial court restated some of the testimony of the witnesses but then found that the 2010 judgment was not a “final judgment” because the petition for dissolution of marriage initially filed by appellee/wife, Shazia Zaheer Khan, in August 2008 had been dismissed by the court and all the rights between the parties had not been adjudicated. The trial court did not address the merits of the husband’s motion to vacate.
At the final hearing on the wife’s petition for dissolution of marriage, the wife withdrew her request for dissolution but proceeded on her claim for alimony and child support unconnected with dissolution pursuant to section 61.09, Florida Statutes (2010). The wife also requested assistance from the court in preventing the husband from selling marital property which would be subject to equitable distribution. In the 2010 judgment, the trial court dismissed the petition for dissolution and awarded the wife alimony and child support. Additionally, the trial court ordered that the husband execute a quitclaim deed for marital real 2 property in his individual name to both parties as tenants by the entireties. A final judgment is “one that determines the rights of the parties and disposes of the cause on its merits leaving nothing more to be done other than to enforce the judgment.” Donaldson Engineering, Inc. v. City of Plantation, 326 So. 2d 209, 210 (Fla. 4th DCA 1976). The judgment entered by the trial court in 2010 dismissed the dissolution petition and ordered the payment of alimony and child support unconnected with dissolution pursuant to section 61.09. As such, the judgment disposed of the wife’s cause for support and alimony and retained jurisdiction to enforce the judgment. Although the judgment for support and alimony is subject to modification, the judgment is final and subject to a motion to vacate pursuant to rule 1.540(b).1 The trial court erred in finding that the 2010 judgment was not a final judgment. We reverse the denial of the husband’s motion to vacate and remand for the trial court to address the merits of the husband’s motion to vacate. Reversed and remanded for further proceedings.
* Of note, since this opinion was filed, the Wife filed a new petition.
PATERNITY, CHILD SUPPORT
In Pope v. Langowski, n/k/a Smith, 38 FLW D1345b (Fla. 4th DCA) opinion filed June 19,, 2013, This is an appeal in a paternity action where the parents meant well, but there was not enough money available to create the best situation for all involved. The father lives in New Jersey, the mother in Florida. The father has a wife and two other children and has a gross monthly income of $2,240.50 per month; the mother (not the father’s wife) earns $11 per hour and has day care costs of $20 per week. The judge entered a detailed, thoughtful final judgment granting primary physical custody to the mother and allowing the father more liberal visitation over time. The DCA affirmed the final judgment in all respects but two. First, it reversed the child support award and remanded to the circuit court to take into consideration the economic effects of the father’s other two children and anticipated travel costs under subsections 61.30(1)(a) & (11)(a)11., Florida Statutes (2010). Subsection 61.30(1)(a) allows a court to vary a guideline amount of child support by “plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent.” (Emphasis supplied). Subsection 61.30(11)(a)11. allows a judge to “adjust the total minimum child support award” based upon “a reasonable and necessary existing expense or debt” or any other “adjustment that is needed to achieve an equitable result.” See Hutslar v. Lappin, 652 So. 2d 432, 434 (Fla. 1st DCA 1995) (construing section 61.30(11)(a)11. “as vesting broad discretion in the trial court to consider a custodial parent’s obligation of support to other children, in the calculation of his or her income for purposes of determining that parent’s support obligation”); Needham v. Needham, 39 So. 3d 1289, 1290-91 (Fla. 2d DCA 2010) (stating that, “under some circumstances,” a court may abuse its discretion if it fails to consider the economic effect of a previously born child when calculating child support). Second, they remanded for the court to correct what appeared to be two typographical errors in the parenting plan. Section VIII of the plan provides that the parties were free to travel within the United States with the child during timesharing; a provision that contradcited that portion of the plan that required the father to effectuate his monthly timesharing in Florida. Another provision which stated that each party shall be responsible for his or her own airline ticket when the child is flying “unaccompanied” appeared to be in error, as logic would dictate that this provision should have read “accompanied.” In its discretion, the trial court may also address the other “inconsistencies” identified by the father. These “inconsistencies,” however, were not so pervasive or significant that they constituted an abuse of discretion requiring reversal of the entire parenting plan. Affirmed in part, reversed in part, and remanded
PATERNITY, CHILD SUPPORT, MEDICAL EXPENSES
In Russell v. McQueen, 38 FLW D1374b (Fla. 5th DCA) opinion filed June 21, 2013, the father appealed the order resulting from the reman from the first appearance of the underlying paternity action in this court two years ago, which resulted in an opinion that specified five errors regarding the computation of child support that required correction on remand. Russell v. McQueen, 62 So. 3d 683, 683 (Fla. 5th DCA 2011) (Russell I). Of those errors, the DCA found the following two pertinent to their review of this current appeal: twice charging the father, Harold Russell (Father), for the child’s unreimbursed medical expenses; and failing to properly calculate Father’s income for 2006 and 2007. Id. Despite this court’s prior opinion, which explained these errors, their was further error in the remand proceedings, resulting in further error that is manifest in the order now reviewed. Therefore, the DCA had to readdress those two errors. Father claims that a third error discussed in Russell I, the failure to credit Father with the cost of the child’s medical insurance, was not properly corrected on remand. But that error, as we shall see, only had tangential significance to Father’s actual contention that the trial court erred by failing to credit him for the cost of his medical insurance. The DCA also noted a fourth issue not evident when Russell I was decided: whether the trial court erred in failing to reconsider the attorney’s fees award to the mother, Holly McQueen (Mother), that was based on prior erroneous calculations of Father’s income. The Father contended that the error of charging him twice for the child’s unreimbursedmedical expenses was not corrected on remand. As a prelude to their discussion of that error, they noted the statutory requirements that “[e]ach order for [child] support shall contain a provision for health insurance for the minor child” and “[t]he court shall apportion the cost of health insurance, and any noncovered medical . . . expenses of the child, to both parties by adding the cost to the basic [child support] obligation . . . .” § 61.13(1)(b), Fla. Stat. (2010). An option is therefore available that allows the trial court to simply add this medical expense to the child support obligation or order the obligation to be paid separately on a percentage basis. § 61.30(8), Fla. Stat. (2010). Eschewing the percentage basis approach (or so it appeared), the trial court imposed a flat-rate obligation of $230 per month on Father to cover the unreimbursed medical expenses and factored that amount in Father’s total child support obligation. Having done that, the trial court then ordered Father to pay a percentage of the unreimbursed medical expenses in addition to the flat rate. Russell I held that this double charge was improper and ordered that the error be corrected on remand.
Unfortunately, this same error was made again by the trial court, and for the second time, the DCA ordered that it be corrected. It was parenthetically noted that Mother concedes the error in her brief. Father next contended that his income for 2006 and 2007 was not properly calculated on remand. But the error primarily involved the trial court going beyond the dictates of the mandate on remand by delving into matters previously reviewed and affirmed by this court in Russell I. The mistake revealed in Russell I consisted of failing to use Father’s 2006 income tax return to calculate his support obligation for that year and attributing his wife’s income ($89,915) to him in calculating his income for 2007. The record established that on remand the trial court did use Father’s 2006 tax return to calculate his support obligation for that year, and although the Father claimed further error in that calculation, the DCA found no mistake. They did, however, see that the trial court’s reconsideration of Father’s 2007 income went beyond the deletion of his wife’s income and traveled the entire route of completely recalculating Father’s income for 2007 by crediting Father with business losses previously considered and rejected by the trial court in the original proceedings. Because the DCA examined the calculation of Father’s 2007 income and affirmed that calculation (except for the improper inclusion of his wife’s income) in the first appeal, the correction on remand only required the simple mathematical task of subtracting her income from Father’s income for 2007.
In discussing the issue regarding the trial court’s failure to consider the cost of Father’s medical insurance in calculating his income, they acknowledged, in fairness to the trial court, that Russell I spoke in terms of failing “to include the cost to Father of the health insurance that covered his child in calculating child support.” 62 So. 3d at 683 (emphasis added). Therefore, Russell I and the mandate that emanated from that appeal did not require inclusion of Father’s health insurance in the calculation. We believe that failure constitutes an error in need of correction based on notions of fairness and the statutory provisions that require the trial court “to determine net income based upon section 61.30, Florida Statues, by determining ‘gross income’ as defined in subsection (2)(a) 1-14 and then subtracting from this figure ‘allowable deductions’ as defined in subsection (3)(a)-(g).” Pedroza v. Pedroza, 779 So. 2d 616, 618-19 (Fla. 5th DCA 2001) (footnote omitted).2 In calculating gross income, “[a]llowable deductions shall include . . . [h]ealth insurance payments . . . .” § 61.30(3)(e), Fla. Stat. (2010). The record shows that Father testified at the initial hearing, and on remand, regarding the amount he paid for his health insurance and yet, despite his repeated requests that this cost be included in the calculation, it was not deducted from his gross income. Father notes the inherent unfairness in denying him that deduction while allowing Mother to deduct the cost of her medical insurance from her gross income. On remand, the trial court was ordered to allow the deduction to the Father. See Magann v. Magann, 848 So. 2d 496, 498 (Fla. 2d DCA 2003) (“[I]n calculating the child support, the trial court erred by failing to take into consideration the $125.04 per month the former husband paid for his own health insurance.” (citation omitted)).
Lastly, as to the alleged error regarding attorney’s fees, the discussion required some procedural history. When the trial court rendered the original final judgment, it reserved the issue of Mother’s request for attorney’s fees for a hearing at a later time. That time came on February 19, 2010, while the Russell I appeal was pending in this court. Over a year after the hearing on that date, the trial court rendered its order granting Mother’s motion for fees, concluding that Father had the ability to satisfy Mother’s need for fees based on his computed annual income of approximately $152,000 and her income of $46,000. Coincidentally, on the same day this court rendered its decision in Russell I (June 3, 2011), Father filed a motion for rehearing, contending that the amount of his annual income was an issue in the Russell I appeal. Three days later, after this court held that the trial court’s calculation of Father’s income erroneously included Father’s wife’s salary of $89,915, Father filed a motion to stay the fee order, noting the reversal by this court of the erroneous calculation of Father’s income. Shortly thereafter, the mandate issued from this court and the trial court scheduled a hearing for the purpose of recalculating child support in accordance with the mandate and to rehear “the issue of attorney fees since the parties’ income, especially the father’s income is at issue which affects this Court’s past appeal ruling on attorney’s fees.” In the order rendered after that hearing, the trial court decided that this court’s decision in Russell I precluded it from doing so, stating that “the issue of past attorney fees was not addressed by the DCA. The Case was reversed and remanded ‘for consideration and recalculation of child support.’” The DCA did not address the issue of fees because that issue was not raised in the Russell I appeal. Equally important, the trial court did not derive its authority to review the award of attorney's fees from this court’s mandate in Russell I, but rather from its prior order granting rehearing as to the issue of attorney’s fees. After this court’s opinion made clear that the trial court’s erroneous calculations more than doubled Father’s income, the trial court should have reconsidered whether, in light of the corrected amount, there is still a significant disparity in the parties’ incomes such that Father should be required to pay Mother’s attorney’s fees. See Tilchin v. Tilchin, 65 So. 3d 1207 (Fla. 2d DCA 2011) (reversing and remanding order on attorney’s fees when final judgment of dissolution was previously reversed, as “the actions taken by the trial court on remand from our previous opinion could impact the figures used to calculate the parties' respective needs or abilities to pay”); Austin v. Austin, 12 So. 3d 314, 318 (Fla. 2d DCA 2009) (requiring trial court on remand to reconsider the issue of attorney’s fees based on the appellate court’s reversal of the equitable distribution scheme); Doyle v. Doyle, 789 So. 2d 499, 503 (Fla. 5th DCA 2001) (same). Therefore, the trial court erred in declining to reconsider the award of attorney’s fees based on Father’s corrected income.
The Father requested that the DCA instruct the trial court that compliance with this court’s mandate is required. The principle has been firmly established in the law since early times that when an appellate court issues its mandate, the trial court is obligated to comply without deviation. See Blackhawk Heating & Plumbing Co., Inc. v. Data Lease Fin. Corp., 328 So. 2d 825 (Fla. 1975); O.P. Corp. v. Vill. of N. Palm Beach, 302 So. 2d 130 (Fla. 1974); Cone v. Cone, 68 So. 2d 886 (Fla. 1953); Baskin v. Klemm, 160 So. 509 (Fla. 1935); State ex rel. Dowling Co. v. Parks, 128 So. 837 (Fla. 1930); Curry v. State, 16 So. 3d 933 (Fla. 3d DCA 2009); Robinson v. Weiland, 988 So. 2d 1110 (Fla. 5th DCA 2008); Formor v. State, 923 So. 2d 563 (Fla. 5th DCA 2006); Mendelson v. Mendelson, 341 So. 2d 811 (Fla. 2d DCA 1977); City of Miami Beach v. Arthree, Inc., 300 So. 2d 65 (Fla. 3d DCA 1973). The DCA did not attribute to the trial court any conscious effort to deviate, but charged the errors that were made to the confusion (noted several times in Father’s brief) that cast a pall over the remand proceedings.
REVERSED; and REMANDED for further proceedings
PATERNITY, CHILD CUSTODY, VISITATION
In Waybright v. Johnson-Smith, 38 FLW D1393a (Fla. 1st DCA) opinion filed June 24, 2013, the biological Father, Waybright appealed a final order establishing visitation and residential custody of S.L.W. Because the trial court erred in excluding certain evidence offered by the Waybright and in ordering rotating custody when neither party requested it, the order was reversed and remanded for further proceedings.
S.L.W. was born on May 16, 2008, and the appellee, Ya’Lonni Ayeesha Johnson-Smith, agreed that Waybright was the biological father and that the parties to this appeal had never been married. In January 2012, Waybright, pro se, filed a pleading styled “petition to establish paternity and other relief.” By this petition, Waybright sought sole physical custody of the child with Johnson-Smith allowed only supervised visitation. Waybright alleged that the mother had engaged in criminal activity, was unable to financially support the child as she rarely worked, and had a transient life-style. At the subsequent hearing on the petition, both parties appeared pro se. Waybright offered police reports detailing the acts of violence committed by Johnson-Smith, including domestic violence against him. The trial court, without objection from Johnson-Smith, refused to consider these reports, classifying the reports as hearsay. The court also refused to consider certain written statements without first inquiring as to whether they were admissible as affidavits. Thereafter, the trial court ordered rotating custody on a weekly basis with the responsibility for transportation falling upon Waybright. The DCA found that the trial court erred in categorically excluding the police reports, as such records may have been admissible pursuant to section 90.803(8), Florida Statutes (2012). Similarly, concerning the statements offered by Waybright, the trial court erred in failing to even consider their admissibility, especially in view of the lack of objection from Johnson-Smith. See Tallahassee Furniture Co. v. Harrison, 583 So. 2d 744 (Fla. 1st DCA 1991) (unobjected to hearsay is probative as non-hearsay evidence). Domestic violence and other forms of violent behavior are probative matters in a child custody case. See § 61.13(3)(m), Fla. Stat. (2012). In establishing residential placement of a child, the trial court is to consider at least twenty factors pertaining to the best interests of a child listed in section 61.13(3), even when the parents are unmarried. See A.L.G. v. J.F.D., 85 So. 3d 527 (Fla. 2d DCA 2012).In the order under review, there are no findings to support the weekly rotating custody schedule set by the trial court. Further, neither party requested rotating custody. Moore v. Wilson, 16 So. 3d 222 (Fla. 5th DCA 2009) (the trial court erred in ordering rotating custody when neither party requested it). REVERSE and REMANDED for further proceedings consistent with this opinion.
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