01-2038 VERGARA V. VERGARA

State: Florida

Court: Florida Third District Court

Docket No: 01-2038 VERGARA V. VERGARA

Case Date: 11/27/2002

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D., 2002

RAUL VERGARA, Appellant, vs. ANNETTE E. VERGARA, Appellee.

** ** ** CASE NO. 3D01-2038 ** LOWER TRIBUNAL NO. 96-23859 **

Opinion filed November 27, 2002. An Appeal from the Circuit Court for Miami-Dade County, Alex Ferrer, Judge. Raquel A. Rodriguez; Cynthia L. Greene, for appellant. Elizabeth S. Baker, for appellee.

Before GERSTEN, GREEN, and SHEVIN, JJ. PER CURIAM. Raul Vergara ("former husband") 1 appeals from a post-

dissolution order which determined custody and child support. After both parties filed petitions to modify visitation and

child support, the trial court, after a hearing, refused to alter the visitation schedule but modified child support. We

affirm the ruling on visitation and we reverse the support ruling. In modifying child support, the trial court held that the former income. husband's reimbursements for business expenses were

Additionally, the trial court determined that the This

former husband's income would include a contingent bonus.

bonus would be based upon an increase in sales and was not a guaranteed bonus. In order to include the bonus, the trial

court assumed an increase from two prior years' bonuses and then extrapolated the amount of the purported future bonus. upon the foregoing, the trial court upward. Reimbursements for business expenses are not income and should not be included in calculations for child support Based

modified child support

purposes.

Because the former husband does not have an expense

account and because he is reimbursed for expenses he actually incurs, these amounts do not represent income. Therefore, the

trial court erred in determining the expenses as income, for child support purposes. See Lombardi v. Lombardi, 673 So. 2d 175

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(Fla. 4th DCA 1996). Also, before a trial court can include a bonus in

calculating net income for child support purposes, the bonus must be regular and continuous. See Shrove v. Shrove, 724 So.

2d 679 (Fla. 4th DCA 1999); Cervoni v. Cervoni, 715 So. 2d 282 (Fla. 3d DCA 1998); Joseph v. Joseph, 681 So. 2d 888 (Fla. 4th DCA 1996); Crowley v. Crowley, 672 So. 2d 597 (Fla. 1st DCA 1996). Here, the bonus is contingent upon sales quotas set by Since the former husband's bonuses are neither

his employer.

regular nor continuing, the trial court erred in including a bonus in its calculation. 679. See Shrove v. Shrove, 724 So. 2d at

Accordingly, we reverse and remand for recalculation of In all other respects, the order below

the child support award. is affirmed.

Affirmed in part, reversed in part, and remanded with directions.

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