MICHAEL W. BOND, Appellant,
LAUREN B. BOND, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Lee County; John S. Carlin, Judge.
Michael W. Bond, pro se.
H. Fried and Devin J. Mace of Fried & Fried, P.A., Fort
Myers, for Appellee.
Bond, the husband, appeals two nonfinal orders entered in
December 2016 in the underlying dissolution of marriage
proceedings between him and the wife, Lauren Bond. The first
order denies, among other things, the husband's petition
to reinstate visitation, and the second order grants the
wife's requests for temporary child support, alimony, and
attorney's fees. We reverse portions of the two orders
for the reasons explained below.
husband contends that the child support guidelines worksheet
used by the trial court failed to include the $1102.16 that
the husband pays for the monthly mortgage on the marital home
in which the wife and the child reside. We agree. When one
party pays the mortgage payment or housing expenses of
another party, it is considered an in kind contribution for
purposes of the child support guidelines. §
61.30(2)(a)(13), Fla. Stat. (2016); Jacob v. Jacob,
26 So.3d 11, 12 (Fla. 2d DCA 2009) ("Although the trial
court found that the [h]usband was paying for the marital
home mortgage, utilities, and upkeep, the child support
guidelines worksheet demonstrates that the trial court failed
to factor in those contributions in determining the award.
Such is an abuse of discretion."); Schafstall v.
Schafstall, 211 So.3d 1108, 1111 (Fla. 3d DCA 2017)
("[T]he trial court was required to include in its
calculation of the former wife's gross monthly income the
value of the mortgage payments paid by the former husband as
in kind contributions.").
hearing on the wife's motions, the husband's payment
of the mortgage was considered by the trial court for
purposes of the alimony award and the trial court stated that
it wanted to see a corrected guidelines worksheet that
included the payment of the mortgage. However, the actual
guidelines worksheet used by the trial court in its award of
child support does not reflect the husband's payment of
the mortgage. Because the law is clear and the trial court
indicated its intent to factor the husband's payment of
the mortgage into the worksheet, we reverse the award of
child support on this basis and remand for recalculation of
child support with the inclusion of this amount on the child
support guidelines worksheet.
husband also contends that the trial court erred in awarding
the wife attorney's fees based on a finding that he had
the ability to pay due to money the husband borrowed from his
friend, who is also his boss. The trial court awarded
temporary attorney's fees in the amount of $10, 000 to
the wife and ordered that the husband pay $7500 from a
designated account. The husband testified that this $7500 was
part of a $20, 000 loan that the husband received from his
friend and that this $7500 was the amount remaining after he
had paid for the child's therapy and the husband's
attorneys in the dissolution case and injunction case. The
husband was obligated to pay the loan back at $500 per month.
financial resources that should be considered in assessing
the relative financial ability of the parties are the
resources the parties have available without their having to
look beyond the financial resources subject to their
individual control." Azzarelli v. Pupello, 555
So.2d 1276, 1277 (Fla. 2d DCA 1989). "[T]he general rule
is that the trial court may only consider the 'financial
resources of the parties and not the financial assistance of
family or friends.' " Rogers v. Rogers, 824
So.2d 902, 903 (Fla. 3d DCA 2002) (quoting Bromante v.
Bromante, 577 So.2d 662, 663 (Fla. 1st DCA 1991)). In
Rogers, the Third District held that the trial court
erred in considering loans that the husband's parents had
made to the husband in part because "the husband
continues to be legally indebted to his parents."
Id. at 904. The court reversed the attorney's
fee award because "the loans were a primary factor in
the lower court's finding that the husband had the
ability to pay" and remanded for reconsideration of
"the wife's motion for attorney's fees and costs
based upon the parties' financial resources, not the
financial resources of family or friends." Id.;
see also Bromante, 577 So.2d at 663 (holding that in
determining that the wife did not have the need for fees, the
trial court erred in considering $5000 that she borrowed from
her father). The trial court appeared to base its finding of
the husband's ability to pay on the existence of the
$7500 that was remaining from the husband's loan of $20,
000. Based on the above case law, we reverse the portion of
the order granting the wife attorney's fees and remand
for the trial court to determine the husband's ability to
pay without consideration of the loan from the husband's
husband further argues that the trial court violated his
constitutional right to visitation with his child by denying
all visitation and by failing to provide a path to
reunification. However, both parties report that on June 5,
2017, the trial court entered an order granting the
husband's request to reinstate visitation and providing a
schedule for the husband's unsupervised visitation with
his son. This recent order renders moot the visitation issue
in this appeal, and we affirm that portion of the December
2016 order. In affirming, we express no opinion on the issue
of make-up visitation, an issue which the trial court
declined to consider and which the trial court noted the
husband could raise at a later date.
husband raises other issues on appeal, which we conclude are
without merit. We reverse the portions of the orders awarding
child support and attorneys' fees to the wife and remand
for further proceedings in accordance with this opinion. We
affirm in all other respects.
in part; reversed ...