Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT YANELIS LEON GONZALEZ, ) ) Appellant, ) ) v. ) Case No. 2D19-1841 ) MARIO LUIS CORDOVES REYES, ) ) Appellee. ) ) Opinion filed August 28, 2020. Appeal from the Circuit Court for Collier County; Scott H. Cupp, Judge. Neil Morales of the Law Offices of Neil Morales, P.A., Naples, for Appellant. Gregg Mangone of Mangone & Miller Law Offices, Naples, for Appellee. LaROSE, Judge. Following the dissolution of her marriage to Mario Luis Cordoves Reyes, Yanelis Leon Gonzalez unsuccessfully sought attorney's fees. She now appeals. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Because the trial court's denial of Ms. Gonzalez's fee motion was based upon several erroneous calculations, we reverse.1 1We find no merit in any of the other issues Ms. Gonzalez raises on appeal. Background In February 2018, Ms. Gonzalez sought to dissolve her marriage to Mr. Reyes. She requested attorney's fees in her dissolution petition. In an August 2018 order ("final judgment"), the trial court adopted the magistrate's report and recommendations, thereby dissolving the marriage. In relevant part, the final judgment found that "[t]he parties did not establish what amount was needed by [Ms. Gonzalez] or the amount [Mr. Reyes] has the ability to pay." Accordingly, the trial court directed the parties to "set a separate hearing date to determine the amount." The trial court held an evidentiary hearing in November 2018. The trial court entered an April 2019 order denying Ms. Gonzalez's motion. The trial court found that although Ms. Gonzalez "may have established a need for reasonable attorney's fees, she was not deprived of her ability to obtain counsel of her own choosing, to whom she has [already] paid $3,500." The trial court concluded that Ms. Gonzalez "has a greater ability going forward to pay her fees than [Mr. Reyes] . . . who has significantly less disposable income than she."2 The trial court premised its denial of Ms. Gonzalez's motion upon its calculation of each party's monthly net income. The trial court found that Mr. Reyes' monthly net income was $1403. The trial court arrived at this figure by using the monthly net income figure for him set forth in the final judgment ($1922) and deducting his monthly child support ($379) and alimony ($140) obligations. Correspondingly, the 2The trial court utilized the term "disposable income." We, instead, employ the term "net income." Cf. § 61.30(3), Fla. Stat. (2018) ("Net income is obtained by subtracting allowable deductions from gross income."). -2- trial court found Ms. Gonzalez's monthly net income to be $1792. It calculated this amount by using the monthly income figure contained in the final judgment ($1273), and then added to that Mr. Reyes' monthly child support and alimony obligations. Analysis "[A]fter considering the financial resources of both parties," a trial court is authorized to "order a party to pay a reasonable amount for attorney's fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter." § 61.16(1), Fla. Stat. (2018). The purpose of this provision "is to ensure that both parties will have a similar ability to obtain competent legal counsel" in family law proceedings. Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997). With this goal in mind, the trial court must make findings as to one spouse's need for attorney's fees and the other's ability to pay them. See 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))). Indisputably, the trial court's findings must be informed by accurate and legally proper financial considerations. It is also settled that "[w]e review an award of attorney's fees, whether in whole or in part, for abuse of discretion." Arena v. Arena, 103 So. 3d 1044, 1045 (Fla. 2d DCA 2013) (citing Anciaux v. Anciaux, 666 So. 2d 577, 578 (Fla. 2d DCA 1996)). The trial court's calculation of the parties' respective monthly net income contains several errors. Mr. Reyes' $140/month alimony payments may be used to calculate his net income. See § 61.30(3)(g) (listing among the allowable deductions -3- "[s]pousal support paid pursuant to . . . the marriage before the court"). However, the record reflects that the final judgment already accounted for his alimony payments in calculating his $1922 monthly net income. Thus, the trial court erred in again subtracting the monthly $140 payments, effectively double counting the alimony payments. Correspondingly, although alimony payments received by Ms. Gonzalez may be considered in calculating her monthly net income, the trial court already accounted for such payments in the final judgment. See § 61.30(2)(a)(9) (enumerating "spousal support" among the items to be considered in calculating gross monthly income). Consequently, the trial court's addition of the alimony payments on Ms. Gonzalez's side of the ledger improperly inflated her monthly net income. Further, the trial court's inclusion of Mr. Reyes' child support payments to calculate Ms. Gonzalez's monthly net income is problematic for two reasons. First, the final judgment established Mr. Reyes' monthly child support payment at the sum of $373.40. Although not a large discrepancy from the figure used by the trial court in assessing Mr. Reyes's ability to pay attorney's fees, it is not the correct figure. Second, and more significantly, the child support payments she received from Mr. Reyes are not income. After all, "[c]hild support is a right that belongs to the child." Cronebaugh v. Van Dyke, 415 So. 2d 738, 741 (Fla. 5th DCA 1982). "[T]he recipient of the child support receives the support monies, not in his own right or for his own benefit, but in trust for the cestui que trust, who is the child." Id.; see § 61.29(1) ("Each parent has a fundamental obligation to support his or her minor or legally dependent child."). -4- Conversely, we take no issue with the trial court's consideration of Mr. Reyes' child support obligation in ascertaining his ability to pay Ms. Gonzalez's attorney's fees. See Carmack v. Carmack, 277 So. 3d 185, 187 (Fla. 2d DCA 2019) ("[B]ecause a trial court must consider alimony and child support payments when determining whether a party has the ability to pay his or her attorney's fees, on remand the trial court should also reconsider Ms. Carmack's motion for attorney's fees." (citing De La Piedra v. De La Piedra, 243 So. 3d 1052, 1054 (Fla. 1st DCA 2018))); Crick v. Crick, 78 So. 3d 696, 699 (Fla. 2d DCA 2012) (ordering the trial court on remand to "[re]assess attorney's fees after considering the financial resources of the parties as affected by the final judgment," including the former husband's alimony and child support obligations established therein). Conclusion The trial court's denial of Ms. Gonzalez's motion for attorney's fees was based upon erroneous calculations. We reverse and remand for the trial court to re- evaluate Ms. Gonzalez's fee motion. See Coppola v. Coppola, 630 So. 2d 673, 674 (Fla. 4th DCA 1994) (holding that "[i]t was . . . an abuse of discretion to order Appellant to pay Appellee's attorney's fees" based upon several errors in the trial court's calculation of the parties' incomes). Affirmed in part; reversed in part; remanded with instructions. LUCAS and SMITH, JJ., Concur. -5-