Court’s Consideration of Assets and Standard of Living in Reduction of Child Support Matter

Issue:

            When a party has requested a reduction in child support due to a decrease in income, may the court consider said party’s assets and standard of living when determining whether to reduce the party’s child support obligation?

Discussion:

            Florida Statute § 61.30(13) provides that “if the recurring income [of a parent] is not sufficient to meet the needs of the child, the court may order child support to be paid from nonrecurring income or assets.”

            Pursuant to this statutory provision, Florida case law makes clear that a court may consider a parent’s nonrecurring income or assets for child support purposes only after the trial court has determined that a parent’s recurring income is insufficient to meet a child’s needs. See, e.g., Bonavito v. Bonavito, 958 So. 2d 988, 991 (Fla. 5th DCA 2007); and Vollmer v. Vollmer, 33 So. 3d 67, 69 (Fla. 2d DCA 2010)(remanding the matter and directing the trial court to consider the relative financial circumstances of both parties at the time of the final judgment compared with the parties’ relative financial circumstances when the petition for modification was filed).

            Specifically, “an order to pay child support from assets must be accompanied by a finding that the parent’s income is not sufficient to meet the guideline cash support requirement and a valuation of the asset being invaded to meet the child support obligations.” Guida v. Guida, 870 So. 2d 222, 225 (Fla. 2d DCA 2004).

            As to the consideration of the parents’ standard of living, Florida Statute § 61.30(1)(a) provides that the “trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent.”

             In Finley v. Scott, 707 So. 2d 1112, 1116 (Fla. 1998), the Florida Supreme Court addressed a trial court’s authority to deviate from the statutory guidelines pursuant to these enumerated factors, including the parties’ standard of living. A paternity and child support suit, the father in Finley was a professional athlete whose high monthly income of more than $266,000 resulted in a child support guideline recommendation of $10,000 per month. Id. at 1114.  In declining to award this amount, the trial court instead ordered that the father pay only $5,000 per month in child support, finding that such deviation was warranted because, at the mother’s standard of living, only $2,000 per month was required to meet the day-to-day living requirements of the child. Id. at 1115.  The trial court allowed for the additional $3,000 beyond the child’s actual monetary needs so as to achieve a more “equitable result” or what the Fifth District Court of Appeal deemed a “good fortune” award.  Id.

             In affirming the trial court’s decision, the Florida Supreme Court noted that the “actual expenditure for the needs of the child is evidence the trial court should weigh in determining whether to vary the amount from the guideline formula.”  Id. at 1116 (further stating that “decisions as to whether and how much to vary child support awards form amounts dictated by the statutory guideline formula are fact-intensive decisions that depend upon the record in each case.”)

             The majority opinion was quick to note, however, that the “needs” of the child should not be based solely on what the mother could afford as same would be “inequitable” in light of the mother’s much lower standard of living as compared to the father’s. Id. at 1117.  As the concurring opinion of Judge Anstead further emphasized:

 As a practical matter, it is impossible to believe that any court would award the same amount of child support where the paying parent is a multimillionaire as it would where the paying parent makes a modest living. While technically the child’s basic survival needs would be the same in each case, the determination of “need” in awarding child support takes into account more than just the basic necessities of survival. See Smith, 474 So.2d at 1213 (“The child’s residence with his mother does not mean that the father must do no more than provide a survival level of support.”). The child of a multimillionaire would be entitled to share in that standard of living-for example to attend private school or to participate in expensive extracurricular activities-and would accordingly be entitled to a greater award of child support to provide for these items, even though provision for such items would not be ordered in a different case . . . The child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle.

             Id. at 1118 (citing to Miller v. Schou, 616 So. 2d 436, 438 (Fla. 1993)).