JIMMY EARL KELLEY, APPELLANT,
v.
SANG HUI KELLEY, APPELLEE
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In this dissolution of marriage appeal, the First District Court of Appeal affirmed the trial court's award of retroactive child support but reversed and remanded because the court failed to properly determine the child's needs and parental ability to pay, and set the wrong termination date. The court also reversed the equitable distribution of assets and liabilities for lack of required statutory findings.
The court affirmed the retroactive nature of the child support award but reversed and remanded because the trial court failed to properly determine the child's needs and the parents' ability to pay, and erroneously terminated the retroactive period on May 1, 1995 instead of April 1, 1995. The court also reversed the equitable distribution award because the trial court failed to make findings required by Florida Statute section 61.075(3).
[1] A trial court does not abuse its discretion in awarding retroactive child support when a parent failed to provide financial support for the child during a prior period.
[2] The amount of a retroactive child support award must be determined by considering the needs of the child and the ability of each parent to pay during the period in questi…
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Join FLexlaw to unlock all legal intelligence“the criteria for determining retroactive child support award are the child's needs and the ability of each parent to pay; the dominant factor in determining the amount paid by the noncustodial parent is the income of that parent”
Establishes the legal standard for calculating retroactive child support awards that the trial court failed to apply.
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Join FLexlaw to unlock all legal intelligenceFollowing a hearing where both parties testified, the trial court ordered Former Husband to pay retroactive child support from May 1, 1993, to May 1, …
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PER CURIAM.
This cause is before us on appeal from an order of the trial court determining child custody and visitation; the amount of child support and retroactive child support; Former Wife’s entitlement to Former Husband’s military pension; and the equitable distribution of the parties’ assets and liabilities. Former Husband raises four issues on appeal, only two of which merit discussion.
Following a hearing in which both parties testified, the trial court ordered Former Husband to pay retroactive child support from May 1, 1993, to May 1, 1995, finding that Former Husband failed to provide financial support for the child during this period. We affirm the retroactive nature of the award, finding no abuse of discretion on the record before us. See Weinstein v. Weinstein, 148 So. 2d 737, 738 (Fla. 3d DCA 1963)(no abuse of discretion by trial court in awarding retroactive child support to mother for the six months prior to entry of the final decree where, during that period, mother was sole provider for the children); Cf. Fowhand v. Piper, 611 So. 2d 1308 (Fla. 1st DCA 1992)(allowing award of retroactive child support in paternity actions).
We are nevertheless required to reverse and remand this award because of two errors. First, in establishing the amount of the award, the trial court failed to properly determine the needs of the child and the ability of the parents to pay during the period in question. See, e.g., Richards v. Ryan, 655 So. 2d 1184 (Fla. 1st DCA 1995)(the criteria for determining retroactive child support award are the child’s needs and the ability of each parent to pay; the dominant factor in determining the amount paid by the noncustodial parent is the income of that parent); Hice v. Pace, 675 So. 2d 952 (Fla. 1st DCA 1996). Second, the retroactive period of the award should have terminated on April 1, 1995, the date Former Husband began paying temporary child support. On remand, the trial court shall correct the date of termination and redetermine the amount of the retroactive award consistent herein.
We also reverse the equitable distribution of the parties’ assets and liabilities because the trial court failed to make findings required by section 61.075(3), Florida Statutes. Finch v. Finch, 659 So. 2d 1351 (Fla. 5th DCA 1995); Green v. Green, 650 So. 2d 181 (Fla. 1st DCA 1995); Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994); Pridgeon v. Pridgeon, 632 So. 2d 257 (Fla. 1st DCA 1994); Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993). On remand, the trial court shall revisit the equitable distribution scheme and make appropriate findings.
The remaining issues raised on appeal are without merit and are affirmed without further comment.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
BOOTH, JOANOS and BENTON, JJ., concur.
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Crockett v. Crockett, 708 So. 2d 329 (Fla. 1st DCA 1998)…6)(failure to make any specific written findings concerning parties’ assets or to characterize them, in awarding marital assets in dissolution of marriage proceedings, necessitated remand for the trial court to make such findings); Kelley v. Kelley, 678 So. 2d 369 (Fla. 1st DCA 1996)(re-manding equitable distribution of assets and liabilities due to trial court’s failure to make findings required by statute). The trial court’s basis for failing to address the $43,685.22 loan from the wife to her son is not a…
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Vaughn v. Vaughn, 714 So. 2d 632 (Fla. 1st DCA 1998)…iously determined that an unequal distribution of marital assets and debts without further findings of fact supporting the unequal distribution constitutes error. See, e.g., Crockett v. Crockett, 708 So. 2d 329 (Fla. 1st DCA 1998); Kelley v. Kelley, 678 So. 2d 369 (Fla. 1st DCA 1996). [*634] The failure to make these findings in á great number of cases results in the inability to conduct appropriate appellate review and thus, will result in reversal. Reversal in the instant case, however, is unnecessary. It i…
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Smith v. Smith, 872 So. 2d 397 (Fla. 1st DCA 2004)…orresponding ability to pay. Id. at 611-12. Here, however, ap-pellee presented no affirmative evidence that the children needed child support before August 2001, or that appellant had the ability to pay during that time period. Cf. Kelley v. Kelley, 678 So. 2d 369, 370 (Fla. 1st DCA 1996)(reversing the amount of an award of retroactive child support because the trial court failed to properly determine the ability of the parents to pay and the needs of the child); Sumlar v. Sumlar, 827 So. 2d 1079, 1082 (Fla.…
Authorities Cited
- Keaton v. Keaton, 634 So. 2d 798 (Fla. 4th DCA 1994)
- Collinsworth v. Collinsworth, 624 So. 2d 287 (Fla. 1st DCA 1993)
- Weinstein v. Doreene Weinstein, 148 So. 2d 737 (Fla. 3d DCA 1963)
- Clark Fowhand, II v. Piper, 611 So. 2d 1308 (Fla. 1st DCA 1992)
- Pridgeon v. Pridgeon, 632 So. 2d 257 (Fla. 1st DCA 1994)
- Finch v. Finch, 659 So. 2d 1351 (Fla. 5th DCA 1995)
- Hice v. Pace, 675 So. 2d 952 (Fla. 1st DCA 1996)
- Green v. Green, 650 So. 2d 181 (Fla. 1st DCA 1995)
- Richards v. Ryan, 655 So. 2d 1184 (Fla. 1st DCA 1995)