Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 94-2268.

Advocates

Steven N. Abramowitz, Miami, for appellant. Akerman, Senterfitt Eidson and David R. Carlisle, Miami, for appellee.

Judges

GREEN, Judge.

See more information ...

Smart Summary

Tsampica Demos Skipper v. David Skipper — District Court of Appeal of Florida, Third District (March 22, 1995)

Factual and Procedural Background

The parties are former spouses with one minor child. The former husband worked as a telephone line repairman for Southern Bell and the former wife had been involuntarily terminated from Florida Power and Light and was receiving unemployment compensation of $774 per month at the time of the modification petition.

On February 22, 1994 the former wife filed a petition to upwardly modify child support, alleging decreased income and the former husband's increased income due to substantial overtime. The former husband's earlier child support obligation of $325 per month had been based on a 1991 base pay of $325 weekly ($15,600 annually). At the time of the modification proceedings the former husband's base pay (excluding overtime) was approximately $700 weekly ($36,400 annually).

Record evidence established that the former husband regularly worked overtime, both voluntarily and involuntarily, and that overtime materially increased his annual income (reported totals including overtime for 1992–1994 were: 1992 — $82,000; 1993 — $90,000; 1994 — $75,000). The general master found that voluntary overtime ceased with the commencement of the modification litigation and declined to include any voluntary overtime in computing child support, expressly including only mandatory overtime. The general master recommended an increase to $500 per month based on base pay alone; the trial court ratified that recommendation.

The former wife appealed, arguing that excluding the former husband's regular voluntary overtime from gross income for child support purposes was an abuse of discretion. The appellate court reversed and remanded.

Legal Issues Presented

Whether the trial court abused its discretion by failing to include regular voluntary overtime income in the former husband's gross income when calculating his child support obligation under Florida's child support guidelines.
Whether overtime that was temporary and caused by Hurricane Andrew (mandatory overtime) may properly be excluded as a short-lived source of income when determining gross income for child support purposes.

Arguments of the Parties

Appellant's (Former Wife) Arguments

She sought an upward modification based on her decreased income and the former husband's increased income from overtime.
She argued on appeal that the trial court abused its discretion by excluding the former husband's regular voluntary overtime from gross income in computing child support.

Appellee's (Former Husband) Arguments

The former husband maintained that all of his overtime was mandatory in the aftermath of Hurricane Andrew and therefore temporary.
He also admitted that he normally worked overtime to help pay bills, indicating some overtime was regularly worked on a voluntary basis.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Aetna Casualty Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992)	Courts must assume the legislature's chosen words express its intent; ordinary statutory language should be given its plain meaning.	The court invoked this principle to give the plain statutory language of §61.30(2)(a)2 (which lists "overtime") its ordinary meaning and to reject a judicial limitation that would confine "overtime" to mandatory overtime only.
Taylor Woodrow Constr. Corp. v. Burke Co., 606 So.2d 1154 (Fla. 1992)	Where a statutory provision is clear and reasonable, the court should not go outside the statute to give it a different meaning.	The court relied on this principle to hold it may not alter the statutory definition of gross income in §61.30 to exclude voluntary overtime when the statutory language unambiguously includes "overtime."
Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994)	Regular overtime earnings should be included in gross income unless the trial court expressly finds such earnings will not be available in the future.	The court adopted the Butler approach and held that regular voluntary overtime should be included in gross income absent a specific finding that such overtime will not continue to be available.

Court's Reasoning and Analysis

The court began with statutory construction. Section 61.30(2)(a)2, Florida Statutes (1993), expressly defines gross income for child support guideline purposes to include "bonuses, commissions, allowances, overtime, tips and other similar payments." The court concluded that the statutory text is plain and unambiguous and therefore must be given its ordinary meaning; nothing in the statute limits "overtime" to mandatory overtime only.

Relying on Aetna Casualty and Taylor Woodrow, the court refused to read a limitation into the statute that the legislature did not impose. The court then adopted the reasoning of Butler v. Brewster: regular overtime earnings should be included in gross income unless the trial court specifically finds such earnings will not be available in the future.

The court distinguished mandatory overtime caused by Hurricane Andrew from the husband’s regular voluntary overtime. It agreed that temporary, hurricane-related mandatory overtime could properly be disregarded as short-lived. However, the record contained clear evidence that the husband consistently worked overtime voluntarily before and after the hurricane, and that such overtime substantially increased his income. The general master’s exclusion of all voluntary overtime—based in part on personal disinclination and claimed computational difficulty—was therefore erroneous.

The court also noted an inconsistency in the trial court's treatment: the court had awarded attorney’s fees to the former wife based upon the former husband's base and overtime income, which suggested the court implicitly treated overtime as available income. Given the evidence and the statutory language, the trial court’s failure to include regular voluntary overtime without making a finding that such overtime would not continue was an abuse of discretion.

Accordingly, the court remanded with instructions that the trial court determine all voluntary or nonmandatory overtime and bonus income earned by the former husband in the year preceding the modification hearing and include that income in his gross income for purposes of the child support guidelines.

Holding and Implications

Holding: The appellate court held that the trial court abused its discretion by failing to include the former husband's regular voluntary overtime earnings as part of his gross income for the computation of child support; the order was reversed and remanded with instructions to include voluntary overtime and bonuses earned in the year preceding the modification hearing.

Implications:

Direct effect: On remand the trial court must quantify the former husband's voluntary (nonmandatory) overtime and bonus income for the year preceding the modification hearing and include that income in calculating child support under the guidelines.
The court acknowledged that truly temporary or short-lived mandatory overtime (for example, post-hurricane mandatory overtime) may be excluded, but regular voluntary overtime cannot be excluded absent a specific finding that such overtime will not be available in the future.
Future modifications remain available: if the former husband later demonstrates a significant change in circumstances (such as overtime no longer being available or his consistently refusing overtime for a significant period), he may petition for a modification of his child support obligations.
No new statutory rule was fashioned; the decision applies existing statutory language and precedent to require inclusion of regular voluntary overtime in gross income unless contrary findings are made.

Disposition: Reversed and remanded with instructions.

Show full summary ...

TSAMPICA DEMOS SKIPPER, APPELLANT, v. DAVID SKIPPER, APPELLEE.

GREEN, Judge.

The former wife filed a petition for an upward modification of child support. The issue presented to us on this appeal is whether the court below abused its discretion in failing to include as gross income regular overtime income earned voluntarily by the former husband in calculating the amount of his child support obligation. We respond in the affirmative and reverse the order under review for reasons which follow.

The parties were formerly married to each other and have one minor child. The former husband is a telephone line repairman for Southern Bell. The former wife was unemployed at the time of the filing of the petition for modification after having been involuntarily terminated from Florida Power and Light due to budgetary cuts in the number of computer technician personnel. At the time of these proceedings, the former wife was receiving unemployment compensation income in the sum of $774 per month.

The former wife sought an increase in child support payments with the filing of a petition for modification on February 22, 1994. This petition was predicated upon the former wife's decreased income and the former husband's increased income as a result of his substantial overtime earnings. At the time of the filing of the petition, the former husband was paying child support in the amount of $325 per month. This was as a result of the 1991 child support litigation between these parties when the former husband's then base pay was $325 weekly or $15,600 annually. The former husband's current base pay, excluding overtime, is approximately $700 weekly or $36,400 annually.

The record evidence clearly established that prior to the filing of the petition for upward modification of child support, the former husband regularly or consistently worked overtime both voluntarily and involuntarily. Indeed, the former husband candidly admitted that he normally worked overtime to assist with the payment of his bills. As a result of overtime, he more than doubled his annual base income. For example, for the years 1992-1994 the former husband's annual income, including overtime was: 1992 — $82,000 1993 — $90,000 1994 — $75,000 In addition, the former husband receives an annual bonus in an amount between $1,000 — $2,000.

The former husband maintained below, as well as on appeal, that all of his overtime was mandatory during the aftermath of Hurricane Andrew. While it is certainly undisputed that the former husband had substantial mandatory overtime as a result of the hurricane disaster, it is equally clear from the evidence that the husband consistently worked overtime on a volunteer basis both prior to the hurricane and after the post-hurricane repairs were completed by Southern Bell. In fact, the general master found that the cessation of the former husband's voluntary overtime seemed to coincide with the modification litigation below.

At the conclusion of the hearing on the petition for an upward modification of child support, the general master found that the former wife had demonstrated a change in circumstances to justify a need for additional child support and issued a recommendation, later ratified by an order of the trial court, that the former wife receive increased child support in the sum of $500 per month. In arriving at this amount, the general master considered only the former husband's base pay and expressly declined to factor in any of his voluntary overtime earnings. This was due in part, apparently, to the general master's personal disdain for including voluntary overtime into gross income as well as the general master's perceived mathematical difficulty of computing such income. In fact, the general master made it clear to the parties that she only included overtime into the calculation of child support when such overtime was mandatory. The former wife claims on appeal that the trial court's failure to include voluntary overtime earnings as part of the former husband's gross income was an abuse of discretion. We agree.

In section 61.30, the legislature expressly defined gross income for purposes of the child support guidelines to include not only salary and wages but also "bonuses, commissions, allowances, overtime, tips and other similar payments." § 61.30(2)(a)2, Fla. Stat. (1993). The plain and otherwise unambiguous language of this statute reveals that overtime is not limited to that which is mandatory. If the legislature had intended such a limitation, it would have so stated. Aetna Casualty Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla. 1992) ("It must be assumed that the legislature knows the meaning of the words and has expressed its intent by the use of the words found in the statute."). Where, as here, the statutory provision is clear and not unreasonable or illogical in its operation, the court may not go outside the statute to give it a different meaning. Taylor Woodrow Constr. Corp. v. Burke Co., 606 So.2d 1154 (Fla. 1992).

In construing this statute, we agree with our sister court in the Fourth District that regular overtime earnings should be included in the determination of gross income unless the trial court specifically finds that such earnings will not be available as a source of income in the future. Butler v. Brewster, 629 So.2d 1092 (Fla. 4th DCA 1994). Based upon the record evidence below, we agree with the former husband that the trial court could not properly consider income earned as a result of mandatory overtime due to Hurricane Andrew as it was indeed temporary or "short-lived" in nature. However, we do hold that the trial court erred in not including as gross income regular voluntary overtime income earned by the former husband in the absence of a finding that such income would not continue to be available to the former husband by his employer in the future. Indeed, the trial court obviously concluded (and we think correctly so) that voluntary overtime would continue to be made available to the former husband in the future because the court awarded attorney's fees to the former wife for the proceedings below based upon the former husband's base and overtime income.

Thus, we remand this matter to the trial court for a determination of all voluntary or nonmandatory overtime and bonus income earned by the former husband in the year preceding the modification hearing below and for the inclusion of this amount into the former husband's gross income for purposes of the child support guidelines. Certainly, if in the future, the former husband can demonstrate that there has been a significant change in circumstances (i.e. overtime is no longer available to him by his employer and/or he has steadfastly declined overtime hours for a significant period of time), there is nothing in this opinion to preclude the former husband from petitioning the court for a modification of his child support obligations.

Reversed and remanded with instructions.

SKIPPER v. SKIPPER