Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT MIGUEL TINOCO, Appellant, v. SAVANNAH LEIGH LUGO, Appellee. No. 2D21-1130 July 15, 2022 Appeal from the Circuit Court for Hardee County; Michael E. Raiden, Judge. Jean M. Henne of Jean M. Henne, P.A., Winter Haven, for Appellant. Debra J. Sutton of Sutton Law Firm, Bartow, for Appellee. KHOUZAM, Judge. Miguel Tinoco (the Father) challenges several rulings relating to child support and attorney's fees set forth in a final order on his petition to modify the dissolution of his marriage to Savannah Leigh Lugo (the Mother). Despite the trial court's considerable efforts to resolve this particularly contentious litigation, we must reverse in part and remand for further proceedings to correct multiple related errors. BACKGROUND Following the parties' 2014 dissolution, the Father fell well behind in his child support obligations, developing a five-figure arrearage that was reduced to a "Judgment/Certificate of Delinquency" in 2016. In 2018, the Father filed a petition for modification, seeking in part to modify timesharing and child support. Ultimately, in 2020, the parents stipulated that the Father would acquire majority timesharing, which the court acknowledged is "perhaps exclusive[]" and is expected to be permanent. But a variety of financial and other issues still remained, primarily involving child support. After a hearing, the trial court issued the order on appeal, in which it attempted to resolve all pending issues between the parties. In the order, the court terminated the Father's monthly child support obligation, retroactive to the date the child began residing with him. Concomitantly, the court imposed a monthly child 2 support obligation upon the Mother, retroactive to that same date. The court ruled, however, that due to the Father's substantial arrearage, the Mother need not pay any of her monthly child support obligation until the arrearage is fully offset. Given the size of the arrearage, there is no dispute that, under this ruling, she would not have to make any child support payments for years.1 Other than granting the Father an unspecified amount of fees for having to bring a certain motion in 2018, the trial court issued a blanket denial of both parties' requests for attorney's fees. Although the trial court made no findings about the parties' respective net incomes and the parties disagree about some of the financial particulars, it appears generally undisputed that the Mother's economic circumstances are superior to the Father's. ANALYSIS The Father challenges various rulings in the order on appeal, including the child support arrearage offset mechanism, the child 1 The record on appeal contains conflicting evidence of the amount of the remaining arrearage. But the trial court did not identify the specific amount, and the Mother does not dispute the Father's express position on appeal that the offset identified in the order would take years to accomplish. 3 support award itself, the attorney's fees ruling, the failure to attach a child support guidelines worksheet, and the retroactivity ruling. We address each in turn. Offset of Child Support Arrearage In the primary issue on appeal, the Father admits he has a substantial child support arrearage, but contends the trial court erred by offsetting 100% of the Mother's new child support obligation against that arrearage. Although the trial court has discretion in directing the repayment of child support arrearages, including by offset where appropriate, the particular facts of this case require reversal and remand for further proceedings to ensure that the child's continuing support needs will be met. "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)). Because "child support is a right that belongs to the child," the trial court has a duty to ensure that child support obligations are appropriate and serve the child's best interests. Lancaster v. Lancaster, 228 So. 3d 1197, 1198 (Fla. 1st DCA 2017); see also 4 Wendel v. Wendel, 852 So. 2d 277, 285 (Fla. 2d DCA 2003). As relevant here, "set offs against support obligations are permitted 'in those limited circumstances where th[e requesting] party can show "compelling equitable criteria and considerations" justifying such set off.' " Marlowe v. Marlowe, 123 So. 3d 1194, 1196 (Fla. 1st DCA 2013) (quoting Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993) (quoting Chappell v. Chappell, 253 So. 2d 281, 287 (Fla. 4th DCA 1971))). As this court has explained, "within the confines of the parents' financial capability, a trial court's paramount concern in matters of this kind is to protect the economic welfare of the child, not to balance through set-off a creditor-debtor relationship." State, Dep't of Health & Rehab. Servs. v. Behnke-Coolidge, 598 So. 2d 293, 294 (Fla. 2d DCA 1992). Applying these principles, courts have disapproved child support offsets that imperil the ongoing financial support of the child. For example, in Marlowe, although the First District generally approved of offsetting past child support overpayments against future obligations, it expressly directed the trial court on remand to "cap the amount to be deducted from the former husband's future child support obligations as offset for his 5 retroactive child support overpayments. This is to ensure that the children's continuing support needs will be met, while simultaneously amortizing the sum of child support overpayments owed to the former husband." 123 So. 3d at 1196 (emphasis added); see also Behnke-Coolidge, 598 So. 2d at 294 (reversing and remanding child support obligation court had reduced to less than 25% of the guidelines amount presumably as "a monthly credit . . . toward the reduction of his arrears in light of his current custody and maintenance of the child"). The parties have not identified, nor have we located, any Florida appellate decision approving a complete offset of child support arrearages resulting in years of zero ongoing support for a minor child living with the less financially capable parent. In support of the offset, the trial court cited Artuso v. Dick, 843 So. 2d 942 (Fla. 4th DCA 2003), in which the Fourth District affirmed an offset of child support arrearages as within the court's discretion. But in Artuso, both parties had competing child support arrearages in comparable amounts, such that "[r]ather than have each party have an arrearage due, the court 'washed out' each arrearage." Id. at 945. That ruling was reasonable in the context of 6 those opposing arrearages, but is fundamentally different from the single-arrearage circumstance presented here. There also is no suggestion in the Artuso opinion that the offset there resulted in years of zero prospective support to the custodial parent, as here. Here, the trial court failed to specify any " 'compelling equitable criteria and considerations' justifying such set off." Marlowe, 123 So. 3d at 1196 (quoting Waldman, 612 So. 2d at 704 (quoting Chappell, 253 So. 2d at 287)). Other than stating that the unspecified amount of the arrearage was "fairly staggering," the trial court simply said its ruling was "[b]ased on the updated financial affidavits provided by both parties, as well as the stipulated Parenting Plan that gave the father the majority of overnights." Further, as discussed infra, the trial court made no findings about the Father's financial circumstances, other than accepting his stated gross income and rejecting the Mother's argument that he was underemployed. The court made no findings at all about the needs of the child or whether those needs would be met without any monthly support from the Mother for years. Thus, it is not clear that in offsetting the arrearage the court considered "the economic welfare of the child," much less made that its "paramount 7 concern," as required. Behnke-Coolidge, 598 So. 2d at 294. Under these circumstances, the determination to fully offset the Father's child support arrearage against the Mother's ongoing support obligation must be reversed and remanded for further proceedings. On remand, if the trial court again decides that a setoff is appropriate, then it should specify the " 'compelling equitable criteria and considerations' justifying such set off' " and should consider "cap[ping] the amount to be deducted . . . to ensure that the child[]'s continuing support needs will be met, while simultaneously amortizing the sum of child support . . . owed." Marlowe, 123 So. 3d at 1196 (first quotation quoting Waldman, 612 So. 2d at 704 (quoting Chappell, 253 So. 2d at 287)). Financial Findings Underlying Child Support Obligation Separate and apart from the ruling to offset the full amount of the Father's child support arrearages against the Mother's monthly prospective payments, the Father also challenges the child support obligation itself. He argues both that (1) the trial court failed to make necessary supporting findings about his ability to pay and (2) the amount of his monthly arrearage repayment is excessive. Because the trial court made no findings about the Father's net 8 income or ability to pay, we reverse for further proceedings without reaching the question of whether the amount is excessive. "In conformance with section 61.30[, Florida Statutes (2016)], the case law is well-settled that a trial court errs by failing to make findings of fact regarding the parties' incomes when determining child support." J.A.D. v. K.M.A., 264 So. 3d 1080, 1083 (Fla. 2d DCA 2019) (internal quotation marks omitted) (quoting M.M. v. J.H., 251 So. 3d 970, 972 (Fla. 2d DCA 2018)). This requires findings about the parents' net incomes, not just their gross incomes. Id. ("The trial court erred by failing to make specific findings concerning each parent's net monthly income and relying only on each parent's gross monthly income."). Likewise, "[a]lthough the trial court has discretion to determine how child support arrearages will be paid, it must take the paying spouse's ability to pay into account." Galstyan v. Galstyan, 85 So. 3d 561, 565 (Fla. 4th DCA 2012); see also Larger v. Diaz, 595 So. 2d 1092, 1094 (Fla. 3d DCA 1992) ("A trial court has discretion as to the manner in which the arrearage is to be repaid. The trial court is to consider the payor's ability to pay when determining the monthly repayment amount." (citations omitted)). 9 Here, regardless of whether the child support payment scheme crafted by the trial court is framed as an independent support obligation or as a repayment of an arrearage, the court failed to make any findings about the parents' abilities to pay it. And as the Mother concedes on appeal, nor did the court address the parties' net incomes; the order simply states what the parties' financial affidavits reflected as their gross incomes. Absent any findings about the parties' net incomes or their respective ability to pay, the order must be reversed and remanded for further proceedings. See, e.g., J.A.D., 264 So. 3d at 1083 ("[W]e are compelled to reverse because the absence of findings regarding the parties' net incomes precludes a determination as to whether the award was within the guidelines established in section 61.30 or whether a departure from the guidelines was justified." (citing M.M., 251 So. 3d at 972)); see also Galstyan, 85 So. 3d at 565 ("[T]he trial court abused its discretion by establishing a [child support arrearage] repayment plan without making factual findings regarding the former husband's ability to pay."). Attorney's Fees For essentially the same reason, the attorney's fees ruling 10 must be remanded as well. As this court has explained, in considering a request for attorney's fees in a dissolution action "section 61.16(1)[, Florida Statutes (2016),] 'expressly requires the court to make findings regarding the parties' respective financial needs and abilities to pay.' " Bolliger v. Fries, 310 So. 3d 1010, 1011 (Fla. 2d DCA 2020) (quoting Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002)); see also Rogers v. Rogers, 12 So. 3d 288, 292 (Fla. 2d DCA 2009) ("[A] trial court cannot decide the issue of attorney's fees without findings as to one spouse's ability to pay fees and the other spouse's need to have fees paid." (alteration in original) (quoting Perrin v. Perrin, 795 So. 2d 1023, 1024 (Fla. 2d DCA 2001))). Here, in denying the parties' requests for attorney's fees, the court made no specific findings regarding either party's need for, or ability to pay, any such fees. Consequently, we also reverse the fees determination and remand for the trial court to make the necessary findings. See, e.g., Bolliger, 310 So. 3d at 1012 ("We reverse the portion of the final judgment denying Mr. Bolliger's request for attorney's fees and remand for the trial court to make the relevant findings to support its decision."). 11 Child Support Guidelines Worksheet The Father also contends that the trial court reversibly erred by failing to attach a child support guidelines worksheet to the order on appeal. We agree. The failure to include a child support guidelines worksheet is error. J.A.D., 264 So. 3d at 1083 (citing Dep't of Revenue ex rel. R.S.M. v. B.J.M., 127 So. 3d 859, 861 (Fla. 2d DCA 2013)). That is because, absent the guidelines worksheet or a meaningful substitute, the order on appeal "fails to show how the trial court arrived at that monthly support obligation." Id. Here, the trial court did not attach a child support guidelines worksheet. Nor did it otherwise explain how it determined the amount of the Mother's monthly child support obligation. As set forth supra, the order does not include findings on the parents' net monthly income or ability to pay, which are also required. Id. ("Because the guidelines are based on the parents' combined net income and there is an absence of findings as to same in the appellate record, this court cannot conduct a meaningful appellate review of the child support award."). The Mother contends that the Father failed to preserve this 12 issue by failing to submit a guidelines worksheet or object to its absence. But "because the requirement for filing a child support guidelines worksheet is mandatory, reversal is required even if the omission is due to the parties' failure to comply with the rule." Dep't of Revenue ex rel. K.A.N. v. A.N.J., 165 So. 3d 846, 848 (Fla. 2d DCA 2015) (citing Durham v. Dep't of Revenue ex rel. Durham, 850 So. 2d 653, 654 (Fla. 2d DCA 2003)). Thus, we reverse on this basis as well and direct the trial court to attach a child support guidelines worksheet on remand. Retroactivity Finally, the Father challenges the date to which the trial court applied the child support modification. Although the Father frames this issue as challenging the trial court's failure to make the modification retroactive, the court did apply the modification retroactively to the date the Father began majority timesharing; it simply declined his request to go all the way back to the date of the petition that preceded the timesharing change. The trial court's decision to tie the child support modification to the date the timesharing change occurred was not an abuse of discretion. "Retroactivity is the rule rather than the exception which 13 guides the trial court's application of discretion when modification of alimony or child support is granted." Gurdian v. Gurdian, 198 So. 3d 65, 68 (Fla. 2d DCA 2015) (quoting DeSantis v. Smith, 634 So. 2d 796, 797 (Fla. 4th DCA 1994)). "Accordingly, there is a presumption of retroactivity which applies unless there is a basis for determining that the award should not be retroactive." Id. (quoting Thyrre v. Thyrre, 963 So. 2d 859, 862 (Fla. 2d DCA 2007)). "However, the circumstances of the case may dictate otherwise." Id. (quoting Bloom v. Bloom, 503 So. 2d 932, 934 (Fla. 4th DCA 1987)). In particular, the "proof may demonstrate a substantially different condition at the hearing on the petition than that which existed on the date of the filing thereof. These are the things that involve a trial judge's discretion." Id. Here, the trial court did make the child support modification retroactive. But it did so only to the date the parties' timesharing arrangement changed, which did not occur until after the Father filed his petition for modification—at the time the petition was filed, he did not yet have majority timesharing. Because tying the retroactivity of the modification to the date of the event justifying it was not an abuse of discretion, we affirm that ruling. 14 We therefore reverse in part and remand for further proceedings consistent with this opinion. On remand, the trial court may take new evidence as necessary. Affirmed in part, reversed in part, and remanded. MORRIS, C.J., and ATKINSON, J., Concur. __________________________ Opinion subject to revision prior to official publication. 15