MEGAN SUNDERWIRTH vs JONATHAN SUNDERWIRTH

Lakeland, FL - Divorce lawyer represented Appellant with challenging the supplemental final judgment of her marriage.

The Former Wife, Megan Sunderwirth, challenges the

supplemental final judgment following the dissolution of her

marriage to the Former Husband, Jonathan Sunderwirth. The

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order modifies both the parenting plan and certain support

obligations.1

We affirm the supplemental final judgment without

further comment in all respects but one. In its determination of the

Former Wife's income for the purposes of the child support

modification calculation, the trial court included an in kind

contribution amount from the Former Wife's fiancé. Because it was

error to include the fiancé's in kind contributions, we reverse only

that portion of the supplemental final judgment related to that

amount and the calculations derived therefrom, and remand for

recalculation as consistent with this opinion.

At the time of the dissolution in 2015, the parties had entered

into a marital settlement agreement (MSA), which included a longdistance parenting plan governing time sharing and a determination

1 Because no transcript of the hearing is available, reversal will

only exist where an error is clear on the face of the judgment, which

under certain circumstances may include errors related to a lack of

factual support. See Whittingham v. Whittingham, 67 So. 3d 239,

239–40 (Fla. 2d DCA 2010); Duke v. Duke, 211 So. 3d 1078, 1080–

81 (Fla. 5th DCA 2017) (indicating that courts will not generally

reverse "based on the sufficiency of required factual findings when

there is no transcript or proper substitute in the record" but

recognizing an exception when "trial court's error is clear on the

face of the order or judgment" and reversing where the face of the

order showed a discrepancy regarding the factual findings and the

imputation of income in an alimony award).

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of child support obligations. At that time, the Former Husband

lived in Illinois, and the MSA set forth a child support obligation of

the Former Husband of $1,454 per month from September 1, 2015,

to September 1, 2017. The Former Wife's net monthly income at

that time was $2,516. In 2017, the Former Wife sought

modification of child support alleging a substantial change in

circumstances based on the Former Husband's significant salary

increase. In 2019, the Former Husband sought modification of

time-sharing based on a substantial change of circumstances

because his job promotion allowed him to relocate to Florida and

live near their children. In the Former Wife's financial affidavit filed

with the court and used by the trial court in its calculations, the

Former Wife allocated monthly expenses of $3,368.69.2



On July 27, 2020, following the resolution of all motions for

rehearing, the court entered a supplemental final judgment

granting both petitions and modifying time-sharing and child

2

The Former wife filed financial affidavits in August 2019 and

January 2020, and both are referenced at various points in the

record and as related to the parties' arguments, but it is not

disputed that the trial court used the expense amount from the

August affidavit.

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support obligations. That judgment included the following finding

on its face:

Here, it appears that the Respondent can afford to be a

stay-at-home mom in view of the fact that her fiancé,

Chris, covers a substantial amount of her living

expenses. Respondent's fiancé, Chris, was in the hall

during the trial and was on Respondent's Witness List.

Neither side called Chris to testify, nor presented any

evidence, as to the in-kind payments Chris was actually

making. This Court believes that under 61.30(2)(a)(13),

these payments by Chris that reduce her living expense

must be included in calculating her income for purposes

of calculating child support. . . . The Court is adopting

the August 30, 2019 Financial Affidavit as more credible

in representing her expenses. Accordingly, her monthly

gross income for purposes of calculating child support

shall be the amount of her expenses shown on her

financial affidavit filed on August 30, 2019, that is

$3,368.69. This amount shall be netted.

(Emphasis added.)

The guidelines for child support calculations are governed by

section 61.30, Florida Statutes (2019). Parental gross income is

determined using the factors in subsection (2)(a), which includes

"[r]eimbursed expenses or in kind payments to the extent that they

reduce living expenses." Fla. Stat. §61.30(2)(a)(13). "Specific dollar

values for the in-kind contributions and reimbursed expenses must

be determined, and the other statutory computations must be

performed, in order to arrive at the parties' net income levels, a

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proper support amount, and the respective shares of support."

Callwood v. Callwood, 221 So. 3d 1198, 1202 (Fla. 4th DCA 2017)

(quoting Garcia v. Garcia, 560 So. 2d 403, 404 (Fla. 3d DCA 1990)).

The Former Wife's financial affidavit shows that she has no

income due to her disabled status, however, she does have monthly

expenses of $3,368.69. She argues that the trial court improperly

imputed income to her by finding that the monthly deficit between

her income and expenses was accounted for entirely from in kind

contributions made by her fiancé. She also argues that there was

no record evidence to support the in kind contribution amounts and

that the amount of child support she was receiving from the Former

Husband accounted for at least $1,524.50 of that income deficit

amount.3

As such the former wife maintains that the amount of in

kind income found by the trial court is not supported by competent

3

The Former Wife additionally sought reconsideration of this

issue—specifically arguing that the amount of child support paid by

the Former Husband covered at least some of her monthly expense

deficit—and the trial court denied that motion, thereby leaving

intact the attribution of in kind income of $3,368.69 to the Former

Wife for the purposes of child support calculations. Based on our

conclusion that the in kind amount is broadly unsupported, we

need not reach the more specific issue related to child support

income.

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substantial evidence. See Callwood, 221 So. 3d at 1202 ("The

competent substantial evidence standard 'is not satisfied by

evidence which merely creates a suspicion or which gives equal

support to inconsistent inferences.' 'Surmise, conjecture or

speculation have been held not to be substantial evidence.' "

(citation omitted) (quoting Fla. Rate Conf. v. Fla. R.R. & Pub. Utils.

Comm'n, 108 So. 2d 601, 607 (Fla. 1959))). We agree.

The absence of a transcript poses no obstacle here where the

trial court concluded that the amount of the Former Wife's financial

deficit is equal to the amount of the fiancé's in kind contributions

despite concluding that neither party "presented any evidence, as to

the in-kind payments [the fiancé] was actually making." Therefore,

the trial court's finding of in kind income in the amount of

$3,368.69 was not supported by competent substantial evidence.

See G.S.P. v. K.B., 30 So. 3d 667, 670 (Fla. 2d DCA 2010)

(indicating that it is error to include an in kind expense where the

record fails to show that it was one); Callwood, 221 So. 3d at 1203

("The trial court inferred that the husband received additional

income of $2,646 because this was the amount of the deficit he

claimed on his financial affidavit. Under the facts of this case, such

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an inference was conjecture, rather than competent substantial

evidence."); see also J.A.D. v. K.M.A., 264 So. 3d 1080, 1083–84

(Fla. 2d DCA 2019) ("Notwithstanding the testimony and documents

the trial court referenced in the final judgment, it is unclear how

the trial court arrived at the . . . figure. As the Father asserts, it

may be that the Father's income should not have been inflated . . . .

Conversely, it may well be that the Father's income should have

been increased by a much greater amount. This is something for

the trial court to decide, and it must do so by making specific

factual findings supporting the income it found.").

Further, this court has held that in kind payments made by a

new spouse are not to be included as additional income when

calculating child support. Hinton v. Smith, 725 So. 2d 1154, 1158

(Fla. 2d DCA 1998) (holding that the effect of a former spouse's

remarriage to a new spouse who can contribute to expenses may be

an increase in the former spouse's disposable income after he or

she pays child support obligations but plays no role in calculating

child support); see also Hilbrands v. Hilbrands, 320 So. 3d 938, 940

(Fla. 2d DCA 2021) (it is error to include in kind contributions from

a new spouse because remarriage is irrelevant to child support

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modification proceedings); Nadeau v. Reeves, No. 4D21-1731, 2021

WL 4888644 (Fla. 4th DCA Oct. 20, 2021) (trial court's inflation of

former wife's monthly income based upon support from new spouse

was error). We can see no reason why a fiancé's in kind payments,

as is the case here, should be treated any differently from a new

spouse. Therefore, it follows that the trial court's treatment of these

in kind payments from the fiancé as income to the Former Wife,

even if they had been supported by competent substantial evidence

in the record for the purposes of section 61.30(2)(a)(13), was error

which appears on the face of the supplemental final judgment and

warrants reversal. See Matteis v. Matteis, 82 So. 3d 1048 (Fla. 4th

DCA 2011)

Accordingly, we reverse only that portion of the supplemental

final judgment related to the calculation of child support as related

to the in kind contribution amount and remand for further

proceedings consistent with this opinion.



Affirmed in part; reversed in part; remanded.