MICHAEL MIRABELLA vs MARY F. MIRABELLA

Lakeland, FL - Divorce lawyer represented Appellant with appealing the nonfinal order regarding temporary child support..

Michael Mirabella, the husband, appeals the circuit court's nonfinal order

regarding temporary child support. He argues that the circuit court lacked jurisdiction to

modify the wife's child support obligation and arrearages established in a final

administrative support order. The husband also contends that the circuit court erred in

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imputing income to him. We affirm the order with respect to the husband's imputation of

income. However, we reverse and remand the order retroactively modifying the wife's

child support obligation and arrearages.

The parties were married in New York on April 18, 1998. They have three

minor children. The parties agreed for the husband to give up his employment of

sixteen years in New York, cash in his retirement plan worth approximately $60,000,

and move to Florida, where the wife accepted a job offer. Since the parties moved to

Florida, the husband has remained unemployed and currently lives with the minor

children. On June 2, 2016, the husband filed a petition for dissolution of marriage.

Due to the wife's alleged failure to pay adequate child support, the

husband applied for food stamps. On December 9, 2016, the Florida Department of

Revenue, Child Support Program (the Department) filed a notice of proceeding to

establish an administrative support order. See § 409.2563(4), Fla. Stat. (2016). On

February 28, 2017, a final administrative support order was entered establishing the

wife's child support obligation. The Department found the wife's actual net monthly

income was $4238.98, and the husband's imputed net monthly income was $1160.54.

The Department found that the wife's monthly share of child support was $1598.96 and

that the wife owed eleven months' worth of retroactive support for a total of $16,388.56

($319.79 per month). The wife was ordered to pay $1918.75 per month in child support.

On September 21, 2017, the wife filed a motion to adjust temporary child

support based on alleged inaccuracies in the final administrative support order and

changes in temporary time-sharing and income. The wife asked the circuit court to

retroactively modify the child support to the date of the filing of the petition for

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dissolution of marriage, June 2, 2016. She claimed that the final administrative support

order did not consider her correct income, her payments for the cost of health

insurance, the husband's earning ability, and the time-sharing schedule being exercised

by the parties. She also asserted that child support should be recalculated to include

time-sharing overnights with the minor children.

On April 11, 2018, the wife filed a motion to modify the temporary

emergency order regarding time-sharing. The order established that the wife would

have time-sharing every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on

Tuesday beginning on July 14, 2017. In the motion, the wife asked the circuit court to

enter an order granting equal time-sharing. On June 13, 2018, the circuit court entered

an order on the wife's motion regarding temporary time-sharing and child support (the

June Order) and made the following relevant findings:

3. The Court further finds that temporary child

support shall be recalculated based upon the changes in the

overnights time-sharing schedule. The parties shall each

submit proposed temporary child support calculations using

Wife's testimony at the final hearing regarding her income

and her financial affidavit. . . . [The wife] offered proof that

[the husband] was offered employment paying $15.00 per

hour. [The husband] testified he declined the offer because

the job would have required him to work the night shift and

he could not do that as the only parent in the home with

three minor children. For purposes of temporary child

support, income is computed [sic] to Father at $15.00 per

hour for a 40-hour work week.

4. [The husband] offered proof that the current

support arrearage under the Administrative Final Judgment

is $20,452.93. Changes to support awarded in the

administrative proceeding, if any changes are required by a

change in overnights, shall have a prospective application

only.

5. [The wife] argues the Court has authority to

retroactively change the administrative support order. [The

husband] argues this Court lacks jurisdiction to retroactively

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change the administrative support award. The Court

reserves ruling on this issue and shall address it at a

subsequent hearing.

(Emphasis added.) The circuit court subsequently entered the following order on

September 21, 2018 (the September Order):

1. The Court finds that temporary child support shall be

calculated from the court's previous order of June 13,

2018.

2. That temporary support is owed by the Mother to the

Father in the sum of $877.00 per month, and that said

amount is to be calculated from the Final Hearing on April

20, 2017.

3. That the temporary child support shall be paid by Income

Withholding Order and that counsel for the Mother will

prepare an Amended Income Withholding Order to the

Mother's employer.

4. That the Clerk of the Circuit Court will adjust the child

support to reflect $877.00 per month beginning April 20,

2017, and that any arrearage beginning April 20, 2017 at

the prior temporary child support amount shall be

adjusted.

This appeal followed.

Section 409.2563 provides an administrative "procedure for establishing

child support obligations . . . when there is no court order of support." § 409.2563(2)(a).

A circuit court . . . may enter an order prospectively

changing the support obligations established in an

administrative support order, in which case the

administrative support order is superseded and the court's

order shall govern future proceedings in the case. Any

unpaid support owed under the superseded administrative

support order may not be retroactively modified by the circuit

court, except as provided by s. 61.14(1)(a) . . . . In all cases

in which an administrative support order is superseded, the

court shall determine the amount of any unpaid support

owed under the administrative support order and shall

include the amount as arrearage in its superseding order.

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§ 409.2563(10)(c) (emphasis added); see also Dep't of Revenue ex rel. Lienhart v.

Secor, 146 So. 3d 1250, 1252 (Fla. 2d DCA 2014) ("It is well established that a circuit

court lacks jurisdiction to vacate or retroactively affect an administrative child support

order entered pursuant to section 409.2563 administrative proceedings. However, a

circuit court does have the power to issue a superseding order changing support

obligations prospectively." (citations omitted)). Section 61.14(1)(a), Florida Statutes

(2016), provides in part the following:

Except as otherwise provided in s. 61.30(11)(c), the

court may modify an order of support, maintenance, or

alimony by increasing or decreasing the support,

maintenance, or alimony retroactively to the date of the filing

of the action or supplemental action for modification as

equity requires, giving due regard to the changed

circumstances or the financial ability of the parties or the

child.

(Emphasis added.)

Here, in the September Order, the circuit court erred by retroactively

modifying the wife's child support payments from the $1918.75 per month set forth in

the final administrative support order to $877.00 per month beginning April 20, 2017,

which was the date of the final hearing in the dissolution proceeding. The circuit court

also erred by retroactively modifying the wife's arrearages established under the final

administrative support order beginning April 20, 2017.

Section 61.14(11) allows a trial court to modify a temporary support order

without a showing of a substantial change in circumstances. See § 61.14(11)(a) ("A

court may, upon good cause shown, and without a showing of a substantial change of

circumstances, modify . . . a temporary support order before or upon entering a final

order in a proceeding."). And that section allows such modification to be retroactive to

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dates prior to the date of the request for modification. § 61.14(11)(b) (providing that the

modification of a "temporary support order may be retroactive to the date of the initial

entry of the temporary support order" or "the date of filing of the initial petition for

dissolution of marriage" among other dates); see Haritos v. Haritos, 193 So. 3d 1050,

1053 (Fla. 2d DCA 2016) (noting that temporary support orders are modified pursuant to

section 61.14(11)(a) while final support orders are modified pursuant to section

61.14(1)(a)).

However, an administrative support order is by definition a final order that

may only be retroactively modified as provided by section 61.14(1)(a). See §

409.2563(1)(a) (defining an administrative support order as "a final order . . .

establishing or modifying the obligation of a parent to contribute to the support and

maintenance of his or her child or children"), (10)(c) ("Any unpaid support owed under

the superseded administrative support order may not be retroactively modified by the

circuit court, except as provided by s. 61.14(1)(a).").

Section 61.14(1)(a) does not allow retroactive modification of a support

order prior to the date the modification was sought. § 61.14(1)(a) (allowing modification

retroactive only "to the date of the filing of the action or supplemental action for

modification"); see also Webber v. Webber, 56 So. 3d 822, 823 (Fla. 2d DCA 2011)

(holding that section 61.14(1)(a) prohibited a trial court's postdissolution modification

order from imposing "a retroactive child support obligation . . . prior to the filing of a

petition seeking a modification"); Bachman v. McLinn, 197 So. 3d 123, 124 (Fla. 2d

DCA 2016) (reversing a trial court's amended supplemental judgment that modified a

child support obligation to a date prior to the filing of the supplemental petition for

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modification); Ivanovich v. Valladarez, 190 So. 3d 1144, 1147 (Fla. 2d DCA 2016)

(reversing a postdissolution order because the trial court erred in ordering child support

to be retroactive to a date prior to the filing of the petition seeking a modification).

The circuit court was without authority to retroactively modify any unpaid

support owed under the final administrative support order except as provided by section

61.14(1)(a). However, the circuit court made no reference in the September Order to

section 61.14(1)(a), which allows for retroactive modification supported by a change in

circumstances. The September Order did state that "child support shall be calculated

from the" June Order, in which the circuit court had found that "child support shall be

recalculated based upon the changes in the overnights time-sharing schedule."

However, the circuit court also stated in the June Order that "[c]hanges to support

awarded in the administrative proceeding, if any changes are required by a change in

overnights, shall have a prospective application only." These statements suggest that

the trial court may not have been relying on section 61.14(1)(a) to justify retroactive

modification in the September Order. Even assuming there is a basis under section

61.14(1)(a) to retroactively modify the child support, the child support award should not

have been retroactively modified earlier than September 21, 2017, the date of the wife's

motion for modification.

Additionally, in the June Order, the circuit court imputed income to the

husband but did not make specific findings regarding the wife's income. The circuit

court also failed to make such findings in its subsequent September Order to justify its

modification of the wife's support obligation. "It is well-settled that a trial court errs by

failing to make findings of fact regarding the parties' incomes when determining child

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support." Ivanovich, 190 So. 3d at 1147 (quoting Wilcox v. Munoz, 35 So. 3d 136, 139

(Fla. 2d DCA 2010)). "Specific 'findings regarding the parties' incomes are necessary

for a determination of whether the support ordered departed from the guidelines and, if

so, whether that departure was justified.' " Id. The lack of findings regarding the wife's

income prevents this court from determining whether the circuit court erred in its

modification of the wife's support obligation.

Thus, we reverse and remand for the circuit court to properly consider the

statutory criteria under section 61.14(1)(a) to determine whether a retroactive

modification of the wife's child support obligation is warranted and to make the requisite

findings of fact. In the event the circuit court does not find that section 61.14(1)(a)

supports retroactive modification, the circuit court may only enter an order prospectively

changing the wife's support obligations established in the final administrative support

order. See Dep't of Revenue ex rel. Chamberlain v. Manasala, 982 So. 2d 1257, 1259

(Fla. 1st DCA 2008). And in the event the circuit court finds that section 61.14(1)(a)

supports retroactive modification, the circuit court must make the child support award

retroactive to the date of the wife's motion for modification.

Next, in determining a parent's income for the purpose of determining a

parent's child support obligation, "income can be imputed to an unemployed parent 'if

such unemployment . . . is found by the court to be voluntary on that parent's part.' "

Dep't of Revenue v. Llamas, 196 So. 3d 1267, 1268 (Fla. 1st DCA 2016) (quoting §

61.30(2)(b)). "In determining how much income to impute to a voluntarily unemployed

parent, 'the employment potential and probable earnings level of the parent shall be

determined based upon his or her recent work history, occupational qualifications, and

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prevailing earnings level in the community if such information is available.' " Id. "A

court may impute income to a party who has no income or is earning less than is

available to him based upon a showing that the party has the capability to earn more by

the use of his best efforts." Koeppel v. Holyszko, 643 So. 2d 72, 75 (Fla. 2d DCA

1994).

The issue of imputation of income is reviewed for an abuse of discretion.

See Heard v. Perales, 247 So. 3d 533, 534 (Fla. 4th DCA 2018). A trial court's

imputation of income will be affirmed if supported by competent, substantial evidence.

Hudson-McCann v. McCann, 50 So. 3d 735, 737 (Fla. 5th DCA 2010). Here, the

husband argues that the circuit court abused its discretion by imputing income to him

and by failing to deduct anticipated child care expenses from his imputed income.

Prior to moving to Florida, the husband worked for the same employer for

sixteen years and made $70,000 in the last year. The parties agreed that the husband

would move to Florida, where the wife accepted a job offer and the husband was to be a

stay-at-home father. Since the parties separated, the husband has remained

unemployed. The husband testified that he applied for approximately thirty jobs in

Florida. He received a job offer to work as a cable technician but did not take the job

because the work hours were until 9:00 p.m. He also testified that he received a job

offer to make $15 per hour as a forklift operator. He claimed that he turned down that

job because the hours "were 3:00 to 11:00, but they really wanted [me] to work 3:00

[p.m.] to 3:00 [a.m.]."

Although the circuit court did not expressly state whether the husband was

voluntarily or involuntarily unemployed, the circuit court found that the evidence

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presented was sufficient to impute income to him. The court's finding implicitly

encompasses a finding that the husband was voluntarily unemployed. Cf. Cash v.

Cash, 122 So. 3d 430, 434 (Fla. 2d DCA 2013) (concluding that the trial court's finding

that the evidence was insufficient to impute income "implicitly encompass[ed] a finding

that the former wife was involuntarily unemployed"). This finding is supported by

competent, substantial evidence.

The husband testified that he rejected two job offers. And there was

evidence that the husband had the present ability to earn the $15 per hour imputed to

him because he could have received that income had he accepted the offer to work as a

forklift operator. Cf. Iglesias v. Iglesias, 711 So. 2d 1316, 1317 (Fla. 2d DCA 1998)

(holding that the trial court erred in imputing income to the husband at $20 per hour for

forty hours a week based on employment ads reflecting job offers for roofers as "[t]here

is nothing to indicate that any of these jobs are available to the husband, and if so, at

what rate of pay").

The husband also argues that the circuit court abused its discretion in

failing to deduct anticipated child care expenses from his imputed income pursuant to

section 61.30(7). However, contrary to the husband's assertion, child care expenses

under section 61.30(7) are not deducted from a parent's income; they are deducted

from a parent's child support obligation. Section 61.30(7) provides the following:

Child care costs incurred due to employment, job search, or

education calculated to result in employment or to enhance

income of current employment of either parent shall be

added to the basic obligation. After the child care costs are

added, any moneys prepaid by a parent for child care costs

for the child or children of this action shall be deducted from

that parent's child support obligation for that child or those

children.

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The statute does not contemplate such deductions for anticipated child care expenses,

only prepaid child care expenses, evidence of which the husband failed to introduce.

We affirm the order with respect to the husband's imputation of income.

However, we reverse the order retroactively modifying the wife's child support obligation and arrearages and remand for reconsideration consistent with the foregoing.



Affirmed in part, reversed in part, and remanded.