11-0610 RICHARD BERTHOLD NILSEN, husband, v. CANDICE ANN (GREENWELL) NILSEN, wife

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State: Florida

Court: Florida First District Court

Docket No: 11-0610

Case Date: 06/08/2011

Preview:IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA RICHARD BERTHOLD NILSEN, husband, Appellant, CASE NO. 1D11-610 v. CANDICE ANN (GREENWELL) NILSEN, wife, Appellee. _____________________________/ Opinion filed June 8, 2011. An appeal from the Circuit Court for Leon County. Dawn Caloca-Johnson, Judge. Ken W. Davis, Tallahassee; Richard W. Ervin, III of Fox & Loquasto, P.A., Tallahassee, for Appellant. Anthony L. Bajoczky and Christopher B. Norris of Bajoczky, Fournier & Norris, Tallahassee, for Appellee. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

PER CURIAM. Richard Berthold Nilsen, the Husband, appeals a non-final order establishing temporary alimony and child support to be paid to Candice Ann (Greenwell)

Nilsen, the Wife. The Husband argues that the child support award is invalid because it does not comply with the requirement of section 61.30, Florida Statutes (2010), that a trial court provide an explanation for why the guideline amount would be unjust or inappropriate. He also argues that the total support award is defective because it is not supported by competent, substantial evidence of his ability to pay. We agree that the trial court reversibly erred with respect to the child support guidelines, but we conclude that the Husband has not shown preserved, reversible error as to the finding that he has an ability to pay the amounts ordered. As a result, we affirm in part and reverse in part. Following a hearing on the Wife's Motion for Temporary Relief, the trial court ordered the Husband to pay $5,000 per month in support, plus additional expenses, without determining his income. The $5,000 support award was labeled as alimony in the Order on Motion for Temporary Relief, but the record reveals that this amount was intended as an unallocated award consisting of both alimony and child support. The trial court verbally acknowledged that it did not "allocate[] between alimony and child support." In the order, the court noted that it was "difficult in this particular case to compute temporary guidelines child support." Based on these statements and the lack of an express allocation in the order, we conclude that the trial court failed to state the amount it was ordering for child support. 2

A support award that fails to differentiate between child support and alimony is improper because it renders the appellate court unable to determine whether the trial court applied the statutory child support guidelines set forth in section 61.30. Blum v. Blum, 769 So. 2d 1142, 1143 (Fla. 4th DCA 2000). Those guidelines must be applied, even for temporary support purposes. Burkhart v. Burkhart, 620 So. 2d 225, 226 (Fla. 1st DCA 1993). In this case, it is clear that the trial court failed to give sufficient consideration to the guidelines not only because it failed to state the amount of the award that was intended as child support, but also because it failed to calculate the Husband's income. See Blum, 769 So. 2d at 1143. Although the trial court may ultimately determine that the guideline amount is unjust or inappropriate, to make this finding the court must calculate what the guideline amount is. See

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