02-2499 BERGES V. BERGES

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State: Florida

Court: Florida Third District Court

Docket No: 02-2499 BERGES V. BERGES

Case Date: 03/17/2004

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 JANUARY TERM, A.D. 2004

TANCREDO BERGES, Appellant, vs. MARY P. BERGES, Appellee.

** ** ** ** ** CASE NO. 3D02-2499 LOWER TRIBUNAL NO. 00-28269

Opinion filed March 17, 2004. An appeal from the Circuit Court for Miami-Dade County, Maxine Cohen Lando, Judge. Harvey D. Rogers, for appellant. Marks & West, P.A., and Carolyn W. West, for appellee. Before COPE, GODERICH and RAMIREZ, JJ. COPE, J. Tancredo Berges ("husband") appeals a final judgment of

dissolution of marriage. We conclude that the trial court erred in its calculation of the husband's income for child support purposes. We affirm on the remaining issues.

I. The husband and Mary P. Berges ("wife") were married for ten and one half years. There was one child born of the marriage, who The wife is a nurse. The husband is a tile

resides with the wife. and marble contractor.

The final judgment awarded child support to the wife, and granted her a lump sum alimony. The husband has appealed. II. The husband contends that the trial court erred in its calculation of his income for purposes of the child support statute. court The husband's point is well taken. the statute and The wife and the at an income

misapprehended

arrived

calculation which is not supported by evidence. The husband operates a small business as a tile and marble contractor. At the time of the final hearing, he was regularly

hired as a subcontractor by a general contractor known as Built By Owner, Inc. The husband would bid for tile and marble installation work on a price per square foot basis. the job, and supervise their work. He would hire installers by

On any given job one to five

installers would install the tile or marble. Because the husband's company was an independent contractor, Built By Owner would issue an Internal Revenue Service Form 1099 to the husband each year, reporting the amount Built By Owner had paid to the husband. At the time relevant here, the husband maintained

2

a separate bank account for his business income and expenditures. Throughout the marriage, the husband and wife consistently used the same accountant for preparation of the tax returns.1 The child support statute has three related, but distinct, categories which are involved here. "business income," and "net income." The pertinent parts of the child support statute state: (2) Income shall be determined on a monthly basis for the obligor and for the obligee as follows: (a) Gross income shall include, but is not limited to, the following terms: . . . . 3. Business income from sources such as selfemployment, partnership, close corporations, and independent contracts. "Business income" means gross receipts minus ordinary and necessary expenses required to produce income. . . . . (3) Allowable deductions from gross income shall include: (a) Federal, state, and local income tax deductions, adjusted for actual filing status and allowable dependents and incomes tax liabilities. (b) Federal employment tax. insurance contributions or selfThese are "gross income,"

(c) Mandatory union dues. (d) Mandatory retirement payments. (e) Health insurance payments, excluding payments
1

The husband's business income was reported on Schedule C. 3

for coverage of the minor child. (f) Court-ordered support for other children which is actually paid. (g) Spousal support paid pursuant to a court order from a previous marriage or the marriage before the court. (4) Net income for the obligor and net income for the obligee shall be computed by subtracting allowable deductions from gross income.

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