Dep’t of Revenue v. Llamas (1st DCA)

The DOR sought to establish the father’s initial child support obligation.  At hearing, the administrative judge learned that the father was about to be incarcerated for two years on a plea bargain.  The DOR argued that minimum wage income should be imputed.  The administrative judge found that the father lacked the ability to earn income given his circumstances and declined to set and initial award of child support.

The First District noted the existing rule that a child support payor is not entitled to a modification when he or she becomes incarcerated.  However, the Court concluded that this rule should not extend to initial child support cases.

Instead, the Court held that it a trial court should not impute income to a parent who is incarcerated (or is about to be incarcerated) when establishing an initial child support award.  In so doing, the Court certified conflict with the Fourth District’s contrary ruling in McCall v. Martin, 34 So. 3d 121 (Fla. 4th DCA 2010).

Dep’t of Revenue v. Nunez (1st DCA)

The DOR appealed an order awarding child support to the mother because the order failed to hold the father responsible for paying 32% of the child’s uncovered medical expenses.

The administrative judge found that the father’s pro-rata share of the total child support was 32% of the total support need, but it held that the father would not have to pay his share of uncovered medical expenses.  The judge based this decision solely on the fact that the father had only $555 left over each month after paying support.

The District Court held that the judge’s ruling constituted a deviation from the statutory guidelines of more than 5%, and that therefore the judge needed to make specific findings of fact based on competent substantial evidence that a deviation was appropriate.  The Court held further that the fact that the father had limited funds alone could not justify such a deviation, because the “parties’ earnings are already taken into consideration” by the statutory calculations.  Instead, the judge needed to find, based on competent evidence, that the father could not contribute to the medical expenses.  Because the record lacked such evidence, the Court ordered that the father be responsible for his pro-rata share of these costs.

J.P. v. D.P (1st DCA)

A case involving a young child and a long-distance timesharing arrangement.

The trial court found that the statutory timesharing factors favored the father, who lived in Orlando, and that it was in the child’s best interest that she reside with him primarily during the school year.  However, the trial court added that once the child completes elementary school, the parents’ roles will rotate and the child will begin living with the mother in Tallahassee during the school year.  The trial court reasoned that this would give both parents “roughly the same amount of time in the school parent role.”

The District Court reversed.  First, there was no finding that this plan was in the child’s best interests, nor was there any evidence in the record that could support such a finding.  The mere finding that the plan would ultimately provide the parents with equal time was not, alone, sufficient to justify the award.

Second, the order constituted an impermissible “prospective-based analysis” because it effectively determined that the change in custody would be in the child’s best interest more than 5 years in the future.  The Court stressed that a child’s best interests must be determined as of the time of the final hearing.

Finally, the order violated the father’s due process rights because it ordered a plan that was beyond the scope of the issues before the trial court.  The parties had agreed that the trial court was to rule only on whether the child should live primarily with the father or the mother and how much visitation the other parent should receive.  The father was not given notice or an opportunity to be heard on whether it would be in the child’s best interests to move to Tallahassee with the mother after sixth grade, and therefore the trial court violated the father’s rights to due process by imposing such a schedule.