NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARK QUINN, )
)
Appellant, )
)
v. ) Case No. 2D14-3306
)
STOYNA QUINN, )
)
Appellee. )
)
Opinion filed July 10, 2015.
Appeal from the Circuit Court for Pinellas
County; John A. Schaefer, Judge.
Mark Quinn, pro se.
Ingrid Anderson, Clearwater, for Appellee.
CASANUEVA, Judge.
Mark Quinn, the former husband, appeals a final judgment of dissolution
of marriage, raising objections to the calculation of child support and the equitable
distribution scheme. We find no merit in Mr. Quinn's arguments regarding equitable
distribution, the calculation of Ms. Quinn's income, or the amount of child support
arrearages owed by Mr. Quinn. However, an error on the face of the judgment requires
reversal as to the child support calculation.
In this case, the parties failed to arrange for a recording of the trial and our
record contains neither a transcript nor a stipulated statement in lieu of the transcript.1
Thus, our review is limited to errors that occur on the face of the final judgment. See
Wilcox v. Munoz, 35 So. 3d 136, 139 (Fla. 2d DCA 2010).
This court has stated that "[t]he appellant has the burden of providing a
proper record to the reviewing court, and the failure to do so is 'usually fatal' to the
appellant's claims. Without such a record, it will ordinarily be impossible for the
appellant to establish that an asserted error is harmful." Esaw v. Esaw, 965 So. 2d
1261, 1264-65 (Fla. 2d DCA 2007) (citation omitted). In Esaw, the final judgment of
dissolution of marriage lacked findings of fact required to support the alimony award and
equitable distribution scheme. Id. at 1264. We were constrained to affirm the final
judgment because the appellant failed to provide a transcript of the trial or a stipulated
statement, and she thus failed to demonstrate harmful error. Id. at 1265.
However, this court has recognized that
child support is different than alimony or equitable
distribution. "Child support 'is not a requirement imposed by
one parent on the other; rather it is a dual obligation imposed
on the parents by the State.' " Serio v. Serio, 830 So. 2d
278, 280 (Fla. 2d DCA 2002) (quoting Armour v. Allen, 377
So. 2d 798, 800 (Fla. 1st DCA 1979)). The right to child
support belongs to the child, and it cannot be waived by
parents. Id.
Wilcox, 35 So. 3d at 138 (distinguishing Esaw and declining to extend it to cases
involving awards of child support); see C.J.E. v. S.D.A., 79 So. 3d 229 (Fla. 2d DCA
1
See Fla. R. App. P. 9.200(b)(4).
-2-
2012) (reversing and remanding for the court to recalculate child support where error
was apparent on the face of the judgment).
Mr. Quinn argues that the child support award is erroneous because it is
not calculated based on the number of overnights the children will spend with him
pursuant to the parenting plan, resulting in an increased amount of support owed by
him. When a parenting plan provides that the children will spend a "substantial amount
of time" with each parent, defined as at least twenty percent of the overnights per year,
the award of child support should be adjusted as set forth in section 61.30(11)(b),
Florida Statutes (2013), requiring calculation based in part on the percentage of
overnights the children spend with each parent. § 61.30(11)(b). The statute
presumptively establishes the amount of child support the court should award in each
case. See § 61.30(1)(a).
However, in calculating child support pursuant to section 61.30(11)(b), the
court may deviate from the presumptive amount based on numerous factors, including
the obligee parent’s low income and ability to maintain the
basic necessities of the home for the child, the likelihood that
either parent will actually exercise the time-sharing schedule
set forth in the parenting plan . . . and whether all of the
children are exercising the same time-sharing schedule.
§ 61.30(11)(b)(7); see also § 61.30(11)(a); Smith v. Smith, 45 So. 3d 928, 930 (Fla. 2d
DCA 2010) ("[T]he child support statute contains numerous grounds for deviating from
the presumptive support award under the guidelines."). If the trial court wishes to
deviate from the presumptive amount by more than five percent, the final judgment must
include findings of fact to support the deviation and "explain why the guidelines amount
is unjust or inappropriate." Wilcox, 35 So. 3d at 139 (citing § 61.30(1)(a)); see also
-3-
Pridgeon v. Pridgeon, 632 So. 2d 257, 260 (Fla.1st DCA 1994) ("The statutory
provisions concerning imputed income and adjustments 'for a particular shared parental
arrangement' offer flexibility to the trial court, but since ultimately the welfare of a small
child is at stake, the court's utilization of these provisions should be elucidated.").
In this case, the parenting plan attached to the final judgment provides for
260 overnights with Ms. Quinn and 105 overnights with Mr. Quinn. However, the child
support guidelines worksheet attached to the final judgment states the number of
overnights as 292 with Ms. Quinn and 73 (twenty percent) with Mr. Quinn. The resulting
payment owed from Mr. Quinn is stated as $402.29, based on 73 overnights. There are
no findings in the final judgment discussing the discrepancy between the parenting plan
and the child support guidelines worksheet.
While several factors allowing for deviation of the child support amount
may have been present in this case, the final judgment does not reflect a deviation
based on consideration of these factors. Though the trial court stated in the final
judgment that Mr. Quinn was "underemployed and is capable of earning greater than his
current unemployment income," neither the final judgment nor the child support
guidelines worksheet reflects an imputation of income to Mr. Quinn. Rather, the
worksheet reflects a number of overnights attributed to each parent that contradicts the
number of overnights ordered in the parenting plan with no explanation for the
discrepancy. This error on the face of the judgment requires us to reverse and remand
for recalculation of the award of child support and for further findings, should the trial
court decide to deviate. We affirm the final judgment in all other respects.
-4-
Affirmed in part, reversed in part, and remanded.
SILBERMAN and LaROSE, JJ., Concur.
-5-