The parties were married in 1993. The father had at least three extra-marital affairs during the marriage. The parties had two children: a son born in 1999 and a daughter born in 2009.
The husband’s last affair began while the mother was pregnant with their daughter. Evidence was adduced that the affair had continued after the parties’ separation in August, 2009. After the separation, the father had custody of the son approximately 50 percent of the time. The father exercised visitation with the daughter but did not keep her overnight.
The father earned $5,868 per month. The mother earned $42,000 per year. Her net income was $2,750 per month and her expenses were $4,100 per month. The son attended private school. The court awarded the parties joint legal custody of the children with the mother having primary physical custody. The father was awarded visitation with the son on a 14-day rotating schedule wherein the father was awarded six days and six nights of visitation with the son. The mother exercised custody for the remaining eight days of each custodial period. In that same 14-day period, the father was awarded two days and two nights of visitation with the daughter as well as one four-hour midweek visit every other week.
The father was ordered to pay $1,049 per month for child support. He was ordered to equally split all expenses for extracurricular activities. He was also ordered to pay one-half of private school tuition. The father appealed.
Affirmed in part; reversed in part. (1) The father claimed that it was error for the court to order a different visitation schedule for him with the daughter than he was awarded with the son. “Although we agree with the father that there is no evidence indicating that he is incapable of caring for the daughter during the periods he has custody of the son, we note that the trial court’s decision was required to be based upon the best interest of the daughter.”He did not preserve the issue of the court’s failure to state its reason for deviating from Rule 32.
(2) Both parties agreed that they wanted the son to remain in private school and that he flourished in that environment. Moreover, it was undisputed that the son was an excellent athlete and that both parties encouraged him to participate in numerous extracurricular activities. The father argued that he could not afford to pay these expenses. The Court estimated that the father would be required to pay another $270 per month. The trial court could have concluded that the father had the financial capacity to do so even in spite of his testimony to the contrary. The father claimed that his net income only exceeded his expenses by $110 per month. He allotted $900 for food and $75 for snacks for the son during his visitation period. He also had expenses for clothing, gifts for the children, household supplies, and insurance for two vehicles and a boat even though one vehicle and the boat were inoperable. “Thus, the trial court could have concluded that the father had the ability to pay the additional child support.”
(3) The Court rejected the father’s argument that he should not be required to repay the mother for the son’s trombone and his tuition expense accrued during the pendency of the action. The pendente lite order required the father to pay child sup- port and to contribute to the payment of monthly expenses. Taylor v Taylor