FINLEY v. SCOTT

DAUKSCH, J., concurring specially.

While I concur with the majority, I disagree with the decision of this court not to certify the question in this case to our supreme court for an early resolution. The existing case law demonstrates a lack of compatibility among the district courts on this child support issue. Until our supreme court speaks definitively on the subject, conflict will fester amongst the courts.

The question in this case is a policy question, not a purely legal question, or even a fairness question. The trial judge provided for the child's support and it is clear that the father has been more than supportive and fair with his child. The question then, is how much must the state, through the courts, insert itself into the lives of the father, the mother and the child to mandate what the child gets, over and above her support, of her father's estate? What protections must the state afford for the father and the child if the father's money is given to the mother? What rationale will be given to justify requiring a father who is not married to the mother to raise his child in some fashion other than what would be done if the father and the mother were married?

Courts of appeal do not set statewide policy; only the supreme court should do that. I would certify the questions in this case to the supreme court as being of great public importance.

ANTOON, J., concurring specially.

I concur. The purpose of child support is to ensure that the needs of children who are not residing with their parents are met. Without question, these children should share in the good fortune of their parents. To this end, support should be set at a level to minimize the change in a child's life-style when her parents decide to separate. And children born out of wedlock also should benefit from their parents' financial security through awards of child support which take into consideration the parents' earning ability.

In the instant case, Mr. Scott's earning power is extraordinary. It is obvious that he could meet any conceivable material need his daughter might have. He certainly has the ability to pay for any medical, educational, recreational or special needs that the child may have in the future. The trial court, however, found that the current needs of his 24-month-old toddler are met by an award of $24,000 per year child support. Notwithstanding this finding, the trial court awarded an additional $3,000 per month to be paid to an unrelated professional guardian to be used should the child have needs in the future. If such needs do not arise, the funds ostensibly will be distributed to the child upon her attaining majority.

In addition to the legal arguments addressed by the majority, I think the policy of establishing a guardianship to receive child support payments for the future benefit of the child is a mistake. In my view, absent some proof of dereliction of the parents' obligation to meet the child's needs, parental responsibilities should not be turned over to a third person. What kind of message does selecting a stranger to maintain an account for the child send to the responsible parent who wishes to take care of his or her child's needs? Is the answer that we do not trust you or we want to remove you from the responsibility of caring for your child apart from making a monthly deposit? Is it that we do not want you to know what your child's needs are? Why do the trial court and the dissent assume that the guardian will be more responsible than the father in caring for the child? The record before us does not support such a conclusion. In fact, the record demonstrates that Mr. Scott has been very responsible in supporting his daughter without the assistance of a guardian. This responsible behavior is at least an inference that he will continue to answer his daughter's needs in the future.

I understand and respect the dilemma of the trial court and the view of the dissent. There may be cases where the appointment of a guardian is appropriate. But I think this extreme measure should be reserved for those cases where the child's custodian has failed to meet the child's current needs. It should not be used to maintain a savings account to meet the child's future needs, unless there is a showing that the parent will be unwilling or unable to meet such needs. Even then the parent should first be given the opportunity to carry out his or her obligation before resorting to outside interference with the parent/child relationship in the form of a court-appointed guardian.

SHARP, W., J., dissenting.

While I concur with Judge Goshorn's opinion in this case, I appreciate the paradox of requiring a parent to overpay "needs and expenses" for a child, as Judge Harris points out in his majority opinion. The difficulty is in part semantical, and in part practical. The crux of the difficulty is settling on whose standard of living determines the "needs" of this child.

In this case, the mother is raising the child on a much lower standard of living than would be established by the father, if the child were living at his current lifestyle of $266,926.00 gross income per month. He could well afford, for example, a full time nanny, housekeepers, international travel, residence in a mansion with high attendant expenses, and transportation in expensive automobiles — a portion of which could be allocated to this child. These expenses could easily equate to the $5,000.00 per month found appropriate by the trial court.

However, the mother is not able, in this case, to live at that standard of living. She must provide for herself and her other two children. They cannot benefit from the child support paid for this child, although the mother tried to do so, and has been properly reprimanded by the trial court for that effort. At her standard of living, the trial court found that only $2,000.00 was actually being spent on this child. However, if the father's child support obligations are limited to this level, the child will not share in her father's much higher standard of living and lifestyle. Clearly the "needs" of this child should not be solely based on what the mother can afford to spend on her, consistent with the mother's much lower standard of living. That also would be inequitable.

The only practical solution to this dilemma is to create a trust fund, which will benefit the child in the future and give her a present higher standard living. This is not unlike the practice in some wealthy and moderate-income families, who open savings accounts for children as they are born and fund them periodically with the intent of paying for future needs of such children, be it health related or for a college education. The beneficial interest in such an asset impacts the child's present financial security, as well as her future. Creating such an asset for this child is, as a practical matter, the only way tocurrently raise the child's standard of living higher than her mother's, without also benefiting the mother and other members of the mother's household who have no right to share in the child's good fortune.

GOSHORN, J., concurs.

GOSHORN, J., dissenting.

I do not agree that the trial court determined that $2,000 is the amount of the monthly living expenses of the minor child. The trial judge clearly found that the sum of $5,000 per month is the appropriate amount of support for this child considering the substantial financial resources of the father. I therefore respectfully dissent.

The mother appeals from a final judgment of paternity which awarded her $5,000 per month child support from the father, to be used for the care of their two year old daughter. The father does not contest paternity. Thus, this appeal only concerns the amount of child support awarded and the manner in which it is to be paid. The trial court refused to award the statutory guideline amount of $10,011, but rather, found that $5,000 was "consistent with the actual and bona fide needs of the minor child and the overall financial circumstances of each parent and will therefore foster and promote an appropriate lifestyle for her." Because the evidence showed that the mother had dissipated part of the child's temporary support, the court awarded $2,000 per month to be paid to the mother and ordered the remainder to be paid to a guardian for the child's benefit. On appeal, the mother argues that the trial court should have awarded the full guideline amount. The father cross appeals, contending that the $3,000 per month ordered paid to the guardian constitutes an abuse of discretion. For the reasons set forth below, I would affirm in part, reverse in part, and remand for further proceedings.

Following the child's birth until the award of temporary support, a period of eleven months, the father, a professional athlete with a gross monthly income of $266,926, voluntarily paid the mother a total of $19,670 to be used to care for their daughter. On September 13, 1994, the mother filed a paternity action against the father and, thereafter, filed a motion for temporary relief. Following a hearing, the trial court entered a temporary order adjudicating paternity, awarding the mother primary residential custody, and ordering the father to pay $5,000 per month in temporary support. The court recognized that this amount was less than the guideline amount pursuant to paragraph 61.30(11)(a), Florida Statutes (1991), but reasoned that it was "a more reasonable adjustment and, therefore, achieves a more equitable result . . . ."

The evidence adduced at the final hearing demonstrated that the mother had not been spending the entire $5,000 per month temporary support money, but rather had saved $12,000 thereof, which she placed in her own bank account. She admittedly used support money for her own benefit. The mother only deposited $438 in earned income into her checking account in 1994, yet had written checks over the course of ten months totaling $7,022.49 to pay her credit card bills. Although she explained that she spent $400 to $500 per month on clothes for the child, she could not reconcile the difference. Additionally, the mother bought a 1993 Ford Explorer, which she admitted was financed by money the father had paid in child support. She also has acquired a cellular phone. While the mother neither goes to school nor works full time, she has hired a full time housekeeper and nanny. The mother testified that she pays the nanny $200 per week whether she comes Monday through Friday or only one day. The mother also admitted that she had paid her mother approximately $1,800 to watch the child.

The court entered final judgment of paternity on January 3, 1995. In its order, the court found that the mother had been less than candid with regard to her past and present employment, her earned monthly income, and her sources of available funds. It also acknowledged that the mother failed to properly account for the $50,000 in temporary child support she had already received from the father. Further, the court found it "equally disturbing" that the mother failed to timely comply with its order on the father's motion to compel production of documents and had refused to bring with her to the trial the financial information requested pursuant to the father's notice to produce. The court stated that the mother's attempt to comply with its previous order by furnishing summaries of checkbook and cash expenditures and savings account withdrawals "constitutes an inaccurate, evasive, incomplete, and misleading explanation of how . . . [she] spent the child support entrusted to her." Furthermore, the court faulted the mother for failing to segregate the child's monthly needs rather than lumping all the living expenses for the child, herself, and one other daughter.

In determining child support, the court recognized that paragraph 61.30(1)(a), Florida Statutes permits the court to vary from the guideline amount more than five percent as long as the court gives written reasons for its variance. Therefore, the court specifically declined to impose the guideline amount of $10,011 per month, reasoning that it would be unjust and inappropriate to require the father to pay that sum. Rather, the court awarded $5,000 per month because it represented the child's actual and bona fide needs. This appeal and cross appeal followed.

In 1993, the Florida Legislature amended section 61.30 of the Florida Statutes. Ch. 93-208, § 5, at 2069-73, Laws of Fla. Paragraph 61.30(1)(a) permits trial courts to vary from the statutory guidelines by only plus or minus five percent when awarding child support without providing written reasons. If the court wishes to vary further from this five percent allowance, it must make a specific finding to justify the variance. § 61.30(1)(a), Fla. Stat. (1993). Subsection 61.30(6) sets forth the schedule for courts to apply to the combined net monthly income to determine child support need. It then states:

For combined monthly income greater than the amount set out in the above schedules, the obligation shall be the minimum amount of support provided by the guidelines plus the following percentages multiplied by the amount of income over $10,000:

Child or Children

One Two Three Four Five Six 5.0% .5% .5% 1.0% 2.0% 2.5%

§ 61.30(6), Fla. Stat. (1993).

The mother asserts that the trial court should have awarded her $10,011 per month child support in accordance with the statutory guidelines. She contends that the statutory guidelines are mandatory for those combined monthly incomes greater than $10,000. Alternatively, the mother contends that even if the court had discretion to vary from the guidelines by more than 5 percent, based on the evidence, the father should be obligated to pay the guideline amount because the child is entitled to share in her father's good fortune. Therefore, the mother opines, the court's failure to award her $10,011 per month constitutes an abuse of discretion. I reject the mother's argument that the trial court had no discretion to determine a suitable amount.

Although the child of a multimillionaire is entitled to a greater award than that of the average family, see Miller v. Schou, 616 So.2d 436 (Fla. 1993), the trial court is not obligated to approve either unnecessary or extravagant monthly expenditures or those benefitting the custodial parent. See Boyt v. Romanow, 664 So.2d 995, 999 n.2 (Fla. 2d DCA 1995) (clarifying that courts have the authority to vary by more than 5 percent from the guideline amount to prevent a senseless outcome); see also Miller, 616 So.2d at 439 ("The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding on the record, explaining why ordering payment of such guideline amount would be unjust or inappropriate.") (McDonald, J., concurring).

In the present case, I find that the trial court correctly determined that it was not bound to mathematically apply the guideline amount; rather, it properly concluded that paragraph 61.30(1)(a) could be applied to situations such as this where the guideline amount would yield an unintended and unreasonable result. See also § 61.30(11)(k), Fla. Stat. (1993) (stating that "the court may adjust the minimum child support award . . . to achieve an equitable result . . .").

This conclusion is consistent with holdings in other jurisdictions. In Estevez v. Superior Court (Salley), 27 Cal.Rptr.2d 470 (Cal. Ct. App. 1994), the court recognized that California Family Code section 4056(a) enables the trial court to vary from the guideline formula as long as it states in writing or on the record (1) the guideline amount, (2) the reasons it chose to enter a different amount, and (3) the reasons the amount ordered is in the children's best interests. Estevez, 27 Cal.Rptr. 2d at 474. The court explained that, although there exists a rebuttable presumption that the guideline amount should be ordered, a party may rebut the presumption by presenting evidence that "[t]he parent being ordered to pay child support has an extraordinarily high income and the amount determined under the formula would exceed the needs of the children." Id. at 475 (quoting Cal. Fam. Code § 4057(b) (West 1994)). The court noted that applying the guideline to Estevez's income would require him to pay $35,000 per month in child support, and opposing counsel conceded that "such an award would be absurd." Id. at 475 n.6.See also Richardson v. Richardson, 808 P.2d 1279, 1286-87 (Haw. Ct. App. 1991) (noting that Hawaii statute permitted deviation from child support guidelines if amount higher than reasonable needs of child would result from high parental income); Archer v. Archer, 813 P.2d 1059, 1061 (Okla. Ct. App. 1991) (stating that combined support levels in households with high income should be awarded on a case by case basis).

The mother also argues that it was improper for the trial court to establish a guardianship to hold $3,000 of the $5,000 monthly award. She contends that this court should direct that the money be paid to her. The father's cross appeal alleges that the court should not have ordered that the monthly $3,000 payment be placed into a guardian trust, but rather, his monthly support obligation should be reduced by that amount. I disagree with both of these propositions and find that it was within the trial court's discretion to place the money into trust. Nonetheless, I would remand for the court to enter an order explaining the purpose of the fund and how it will be disbursed.

In Boyt, the Second District Court of Appeal recently considered this precise issue and found that the trial court was authorized to establish a guardianship to oversee the amount of child support that exceeded the child's needs. The court reasoned that it "has the inherent power within its sound discretion to safeguard the minor child's well-being for the present and for the future." Boyt, 664 So.2d at 998; see also Irvin v. Seals, 676 So.2d 436 (Fla. 2d DCA 1996) (reaffirming Boyt's approval of guardianship trust) (Parker, J., concurring). The record supports such a trust in the present case. There was evidence that the mother improperly utilized the child support payments on personal luxuries, and on her child from a previous relationship, of which the father had no responsibility or obligation.

The father argues that the creation of such a fund to be supervised by a guardian is tantamount to requiring him to support the child after she reaches majority. The Second District considered and rejected this contention in Boyt:

The father argues that the creation of such a fund constitutes a prohibited award of postmajority support. We disagree. The benefits of child support paid during the child's minority can extend beyond majority. See Nash v. Mulle, 846 S.W.2d 803 (Tenn. 1993). Such would be the case if the custodial parent decided to dedicate a portion of the periodic payments to a trust for the child's postmajority college education or other need. We see no distinction if such a fund is mandated by the court.

I would align this court with the Second District and approve the concept of a guardian to manage child support funds that exceed a child's present needs, or to oversee funds where there is evidence that the custodial parent has wasted or mismanaged support payments. I would also find that a trust is the appropriate vehicle to accomplish this task. In this case, however, the lower court failed to enter a detailed order explaining how the fund would be enforced and distributed. Although the court clarified under what circumstances the money should be distributed to the child, it failed to detail the guardian's duties with regard to holding the fund. As a result, "the guardian is left holding a fund without any defined authority or duty." Boyt, 664 So.2d at 998. I would therefore vacate that portion of the final judgment and remand the case for the trial court to conduct a hearing to determine if such a plan is still necessary, and if so, to permit the mother to submit a proposed plan. If the mother fails to do so, or if her plan is unacceptable, the trial court may formulate its own plan, as long as it supplies sufficient detail to provide meaningful appellate review. See id.

In conclusion, I believe the trial court acted within its discretion in awarding monthly support below the guidelines and in ordering a portion of the award to be held in a guardianship trust. However, I would reverse and remand for the court to proceed under the dictates of Boyt.

SHARP, W. and GRIFFIN, JJ., concur.

GRIFFIN, J., dissenting.

I concur in the dissenting opinion of Judge Goshorn. I think he has got this case exactly right, as, in fact, did the trial judge. The lower court's only error was in failing to articulate how the guardian ad litem trust was to be administered.

I confess I do not understand the concern that appears to have gripped the majority, as reflected in its lengthy opinion, or its reading of the Miller v. Schou decision. There is nothing radical about Miller. Florida courts, including this one, have always recognized the principle that Miller simply reiterated. Mason v. Reiter, 564 So.2d 142 (Fla. 3d DCA 1990); Smith v. Smith, 474 So.2d 1212 (Fla. 2d DCA 1985); Wanstall v. Wanstall, 427 So.2d 353 (Fla. 5th DCA 1983). That the support to be paid for a child of divorced parents or unmarried parents should be commensurate with the economic and social circumstances of the parents is well established. Although courts do not involve themselves in decisions concerning how much money to allocate for the support of children in intact families, the reality of divorce and unwed births has foisted this duty on the courts. Some device has to be used, and the one settled upon by the legislature is a system of guidelines based principally on disposable income. As of 1993, the legislature has determined that child support awards for high income individuals will no longer be handled outside the guidelines, but brought within them, meanwhile vesting the trial court with discretion to deviate for good reason, which the judge in this case chose to do. The majority nevertheless concludes that it was reversible error for the lower court to award a penny more than the amount the majority concludes was required for the child's "day-to-day living expenses." This apparently was ascertained by examining the spending patterns of a mother the lower court has already clearly found incapable of properly managing money.

Although I agree that child support should not be used to force the payor parent to create an involuntary trust for the child, the law must always be alert to distinctions. The fact is that this case is extraordinary and we should take this fact into account. The lower court was faced with fashioning a support order for the benefit of this child whose father, a star NBA basketball player, has a monthly gross income of $266,926. At least, he has that now. Given the normal career expectancy of such a professional athlete, it is probable that he will be out of the NBA entirely or playing for much reduced sums long before his child reaches her teens. The fact that the income is so high while the duration is so short further supports the scheme fashioned by the lower court.

Perhaps most startling about the majority decision is the determination that the guidelines are "merely a rebuttable presumption of the child's need." If a guidelines child support amount is subject to reversal as a matter of law, as in this case, because the quantum of evidence offered was deemed sufficient to rebut the presumption that the child "needed" a guidelines amount of support, it necessarily follows that any guidelines child support award in Florida would be open to the same attack on the same quantum of evidence. Whether the income on which the support award is based is $200,000 per month, $20,000 per month or $2,000 per month, the principle is the same. The principle appears to be that if the payor of support using such "proof" as was found to be conclusive in this case, can show that the child does not have an "actual day-to-day need" in an amount as great as the guidelines support figure, then, as a matter of law, the lower court must reduce support to the amount of actual "need." The court doesn't even have the discretion, seemingly conferred by section 61.30, to deviate from the guidelines in any amount other than this "actual day-to-day need" amount. This decision could have a dramatic effect on the quantity and nature of child support litigation — at least in this district.

GOSHORN, J., concurs.