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Mirabella v. Mirabella

Florida Court of Appeals, Second District

December 18, 2019

MICHAEL MIRABELLA, Appellant,
v.
MARY F. MIRABELLA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Hillsborough County; Lisa D. Campbell, Judge.

          N. Burton Williams, of N. Burton Williams, P.A., Lithia, for Appellant.

          W. Dale Gabbard, of The Law Office of W. Dale Gabbard, Esquire, P.A., Tampa, for Appellee.

          ATKINSON, Judge.

         Michael Mirabella, the husband, appeals the circuit court's nonfinal order regarding temporary child support. He argues that the circuit court lacked jurisdiction to modify the wife's child support obligation and arrearages established in a final administrative support order. The husband also contends that the circuit court erred in imputing income to him. We affirm the order with respect to the husband's imputation of income. However, we reverse and remand the order retroactively modifying the wife's child support obligation and arrearages.

         The parties were married in New York on April 18, 1998. They have three minor children. The parties agreed for the husband to give up his employment of sixteen years in New York, cash in his retirement plan worth approximately $60, 000, and move to Florida, where the wife accepted a job offer. Since the parties moved to Florida, the husband has remained unemployed and currently lives with the minor children. On June 2, 2016, the husband filed a petition for dissolution of marriage.

         Due to the wife's alleged failure to pay adequate child support, the husband applied for food stamps. On December 9, 2016, the Florida Department of Revenue, Child Support Program (the Department) filed a notice of proceeding to establish an administrative support order. See § 409.2563(4), Fla. Stat. (2016). On February 28, 2017, a final administrative support order was entered establishing the wife's child support obligation. The Department found the wife's actual net monthly income was $4238.98, and the husband's imputed net monthly income was $1160.54. The Department found that the wife's monthly share of child support was $1598.96 and that the wife owed eleven months' worth of retroactive support for a total of $16, 388.56 ($319.79 per month). The wife was ordered to pay $1918.75 per month in child support.

         On September 21, 2017, the wife filed a motion to adjust temporary child support based on alleged inaccuracies in the final administrative support order and changes in temporary time-sharing and income. The wife asked the circuit court to retroactively modify the child support to the date of the filing of the petition for dissolution of marriage, June 2, 2016. She claimed that the final administrative support order did not consider her correct income, her payments for the cost of health insurance, the husband's earning ability, and the time-sharing schedule being exercised by the parties. She also asserted that child support should be recalculated to include time-sharing overnights with the minor children.

         On April 11, 2018, the wife filed a motion to modify the temporary emergency order regarding time-sharing. The order established that the wife would have time-sharing every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Tuesday beginning on July 14, 2017. In the motion, the wife asked the circuit court to enter an order granting equal time-sharing. On June 13, 2018, the circuit court entered an order on the wife's motion regarding temporary time-sharing and child support (the June Order) and made the following relevant findings:

3. The Court further finds that temporary child support shall be recalculated based upon the changes in the overnights time-sharing schedule. The parties shall each submit proposed temporary child support calculations using Wife's testimony at the final hearing regarding her income and her financial affidavit. . . . [The wife] offered proof that [the husband] was offered employment paying $15.00 per hour. [The husband] testified he declined the offer because the job would have required him to work the night shift and he could not do that as the only parent in the home with three minor children. For purposes of temporary child support, income is computed [sic] to Father at $15.00 per hour for a 40-hour work week.
4. [The husband] offered proof that the current support arrearage under the Administrative Final Judgment is $20, 452.93. Changes to support awarded in the administrative proceeding, if any changes are required by a change in overnights, shall have a prospective application only.
5. [The wife] argues the Court has authority to retroactively change the administrative support order. [The husband] argues this Court lacks jurisdiction to retroactively change the administrative support award. The Court reserves ruling on this issue and shall address it at a subsequent hearing.

(Emphasis added.) The circuit court subsequently entered the following order on September 21, 2018 ...


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