Opinion
2D20-2567
01-05-2022
MEGAN SUNDERWIRTH, Appellant, v. JONATHAN SUNDERWIRTH, Appellee.
Allison M. Perry of Florida Appeals, P.A., Tampa, and J. Robert Angstadt of Tampa Divorce, Tampa, for Appellant. Matthew W. Wilson and Christina Anton Garcia of Anton Garcia Law, Tampa, for Appellee.
Appeal from the Circuit Court for Pinellas County; Peter Ramsberger, Judge.
Allison M. Perry of Florida Appeals, P.A., Tampa, and J. Robert Angstadt of Tampa Divorce, Tampa, for Appellant.
Matthew W. Wilson and Christina Anton Garcia of Anton Garcia Law, Tampa, for Appellee.
SMITH, JUDGE.
The Former Wife, Megan Sunderwirth, challenges the supplemental final judgment following the dissolution of her marriage to the Former Husband, Jonathan Sunderwirth. The order modifies both the parenting plan and certain support obligations. 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.
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).
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 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.
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.
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 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 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. As such the former wife maintains that the amount of in kind income found by the trial court is not supported by competent 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 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.
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 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 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.
NORTHCUTT and ATKINSON, JJ., Concur.
Opinion subject to revision prior to official publication.