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Court Opinion Summary — No. 1D18-2771 (06-07-2019)

Factual and Procedural Background

The parties were divorced after marriage and two children. The consent final judgment of dissolution awarded the mother majority timesharing and set the father's child support at $1,100 per month, a "substantial deviation" from the statutory guidelines justified by the father's payment for 100% of transportation costs for visitation. The mother later moved out of state for employment; the father remained in Florida.

In 2018 the mother filed a supplemental petition seeking a timesharing modification and a retroactive child-support adjustment, alleging that the father failed to exercise most of his timesharing and thus did not use the transportation credit contemplated by the final judgment. The father counter-petitioned, seeking majority timesharing.

While the petitions were pending, the mother filed a verified motion to suspend the father's summer timesharing, seeking expedited relief and to establish an arrearage based on the father's unused transportation-credit reduction. At an evidentiary hearing on the motion, the father acknowledged exercising only a fraction of his timesharing; the court indicated a financial adjustment was needed. The trial court found the father had underpaid child support since the consent final judgment, used the father's current financial affidavit to find ability to pay, applied the child-support guidelines as if the transportation credit had not been given, and entered a retroactive child-support award of $39,612.30 payable over time and an award of $3,000 in attorney's fees.

The father appealed the order, challenging (1) the court's authority to enter the retroactive award where the order arose from the mother's motion rather than the supplemental petition, (2) the trial court's alleged abuse of discretion in entering the retroactive award, and (3) the trial court's award of attorney's fees.

Legal Issues Presented

  1. Whether the trial court had authority to enter a retroactive child-support award when the order was entered on the mother's motion rather than on her supplemental petition.
  2. Whether the trial court abused its discretion in establishing a retroactive child-support award given the facts (including whether there was a substantial change in circumstances and the proper start date for retroactivity).
  3. Whether the trial court abused its discretion in awarding attorney's fees, and whether any challenge to that award was preserved for appeal.

Arguments of the Parties

Appellant's Arguments

  • The trial court lacked authority to enter a retroactive child-support award because the court acted on the mother's motion rather than on her supplemental petition, in contravention of the Florida Family Law Rules of Procedure.
  • The trial court abused its discretion by entering the retroactive child-support award (implicit challenge to findings regarding substantial change, retroactivity start date, and the calculation/application of the guidelines and ability to pay).
  • The trial court abused its discretion in awarding attorney's fees.

The opinion does not contain a detailed account of the appellee's legal arguments beyond her petition and motion allegations that the father failed to exercise most timesharing and therefore did not utilize the transportation credit.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Thomas v. Harris, 634 So. 2d 1136 (Fla. 1st DCA 1994) Courts cannot modify a judgment unless the issue of modification is properly presented by appropriate pleadings and each party is given opportunity to respond and a hearing is held with necessary proof. The court acknowledged the rule but concluded the retroactive adjustment was raised in the mother's supplemental petition and that the father was on notice of the issue; therefore Thomas did not preclude the order here.
Bryan v. Bryan, 765 So. 2d 829 (Fla. 1st DCA 2000) Issues not raised in a petition may nonetheless be tried by consent and will be treated as if raised in the pleadings. The court relied on the principle that, to the extent the hearing notice focused on the motion, the issue was nonetheless tried by consent and the father did not preserve a contrary argument for appeal.
Van Looven, 100 So. 3d 148 (Fla. 1st DCA 2012) Before a court may modify child support, it must first find a substantial change in circumstances. The court cited this principle and applied the controlling statutory provision (§ 61.30(11)(c)), which deems a parent's failure to regularly exercise timesharing that resulted in an adjustment of child support to be a substantial change of circumstances; accordingly the court found no additional explicit finding was required.
Miles v. Champlin, 805 So. 2d 1085 (Fla. 1st DCA 2002) Modifications to child support are generally retroactive to the date of the supplemental petition. The court acknowledged the general rule but applied the statutory exception in § 61.30(11)(c) allowing retroactivity to the date the noncustodial parent first failed to regularly exercise timesharing, and here determined retroactivity to that earlier date was appropriate.
Williams, 152 So. 3d 702 (Fla. 1st DCA 2014) An error that appears for the first time on the face of a final order must be brought to the court's attention via a motion for rehearing or other appropriate motion to preserve the issue for appeal. The court applied this preservation principle to the father's challenge to the attorney's-fee award and held the error was not preserved because no rehearing motion was filed.

Court's Reasoning and Analysis

The appellate court affirmed the trial court's order after sequential analysis:

  1. Pleadings and notice: The court recognized the rule requiring modification requests be initiated by supplemental petition, but concluded the retroactive-support claim was presented in the mother's petition and the father had notice of the issue. To the extent the hearing reference emphasized the mother's motion, the court found the father failed to preserve any complaint that only the motion (and not the petition) was noticed, and the issue had been tried by consent.
  2. Substantial change of circumstances: The court explained that a finding of substantial change is a prerequisite to modifying child support. It relied on section 61.30(11)(c), Florida Statutes, which expressly deems a parent's failure to regularly exercise a time-sharing schedule (when that failure resulted in an earlier adjustment of child support) to be a substantial change. Because the final judgment had provided a deviation for transportation costs, and the court found the father did not regularly exercise timesharing, the statutory provision governed and no further explicit finding of substantial change was necessary.
  3. Retroactivity: While modifications generally are retroactive to the date of the supplemental petition, the court applied the statutory exception in section 61.30(11)(c) permitting retroactivity to the date the noncustodial parent first failed to regularly exercise the timesharing. The court determined, based on the testimony, that the father never regularly exercised his timesharing and therefore retroactivity to the earlier date was proper.
  4. Calculation and ability to pay: The court used the child-support guidelines to compute the amount the father would have paid had the transportation-credit deviation not been applied and relied on the father's current financial affidavit to find he had the ability to pay that amount. The appellate court found no abuse of discretion in these determinations.
  5. Attorney's fees and preservation: The appellate court affirmed the fee award but emphasized that the father's challenge to fees was not preserved because he did not file a motion for rehearing; per precedent, a party must alert the trial court via rehearing or similar motion to preserve such errors for appeal.

Holding and Implications

AFFIRMED.

Holding: The appellate court affirmed the trial court's order awarding a $39,612.30 retroactive child-support obligation (to be paid over time) and $3,000 in attorney's fees to the mother.

Implications: The direct effect is that the trial court's retroactive child-support calculation, the use of the statutory provision (§ 61.30(11)(c)) to find a substantial change based on the father's failure to exercise timesharing, the retroactivity determination to the date the father first failed to regularly exercise timesharing, the use of the guidelines and the father's financial affidavit to determine ability to pay, and the attorney's-fee award stand affirmed. The opinion does not announce a new rule of law beyond applying existing statutory language and controlling precedent; no broader legal implications are discussed in the opinion.

PATRICK SMITH, Appellant, v. CAITLYN SMITH, n/k/a Caitlin Cle

PER CURIAM.

On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

Patrick Smith (the father) challenges an order requiring him to pay nearly $40,000 in retroactive child support to Caitlyn Cleveland (the mother). He also challenges the trial court's related attorney's-fee order. We affirm.

I.

The parties married, had two children, and later divorced. The consent final judgment of dissolution granted the mother majority timesharing and set the father's child support at $1100 per month. This amount was a "substantial deviation" from the statutory guidelines, with the judgment explaining "[s]aid deviation is justified by the [father's] payment for 100 percent of the transportation costs for his visitation." (The father lived in Florida; the final judgment authorized the mother to move out of state, where she had obtained employment.)

In 2018, the mother filed a supplemental petition seeking a timesharing modification and a retroactive child-support adjustment. The petition alleged that the father failed to exercise most of his timesharing and therefore never utilized the transportation credit the final judgment anticipated. The father counter-petitioned, seeking majority timesharing.

While the petitions were pending, the mother filed a "Verified Motion to Suspend [Father's] Summer Timesharing Pending Further Court Order and Request for Expedited Relief." In the motion, the mother sought to modify the summer timesharing and to "establish a child support arrearage based on [the father's] credit for transportation for visitation he did not exercise." The court held an evidentiary hearing on the mother's motion, during which the father acknowledged he had exercised only a fraction of his timesharing. Later in the hearing, the court said that some "financial adjustment" needed to be made based on the father's lack of timesharing.

The court entered an order on the mother's motion. The court found that, based on his lack of timesharing, the father had underpaid his child support since the entry of the consent final judgment. The court used the father's then-current financial affidavit to find that he had the ability to pay more child support. The court looked to the child-support guidelines to determine the amount the father would have paid had he not been given the credit for transportation costs. The court then entered a $39,612.30 retroactive child-support award and ordered the father to pay that over time. The court also ordered the father to pay $3000 in attorney's fees.

II.

The father now raises three issues. First, he argues that the court did not have authority to enter the retroactive child-support award because the court entered its order on the mother's motion rather than her supplemental petition. Second, he argues that the court abused its discretion in entering the retroactive award. And third, he argues that the court abused its discretion by awarding attorney's fees.

A.

As to his first issue, the father correctly notes that the Florida Family Law Rules of Procedure require that a request to modify a final judgment be initiated through a supplemental petition rather than a motion. See Fla. Fam. L. R. P. 12.110(h); see also Thomas v. Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) ("A court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced."). But here, the retroactive adjustment was raised in the mother's petition. The father was on notice that the issue was before the court, and to the extent he now argues that only the motion and not the petition was noticed for the hearing, he has not preserved that argument for appeal. Cf. Bryan v. Bryan, 765 So. 2d 829, 831 (Fla. 1st DCA 2000) (concluding that issue not raised in petition was nonetheless tried by consent); Fla. Fam. L. R. P. 12.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they will be treated in all respects as if they had been raised in the pleadings.").

B.

The father's second argument fails too. The court did not abuse its discretion in establishing the retroactive award. Before a court can modify child support, it must first find a substantial change in the circumstances. See Van Looven v. Van Looven, 100 So. 3d 148, 149 (Fla. 1st DCA 2012). In this case, section 61.30, Florida Statutes, supports the conclusion that there was a substantial change in circumstances:

A parent's failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10 or paragraph (b) shall be deemed a substantial change of

circumstances for purposes of modifying the child support award.

§ 61.30(11)(c), Fla. Stat. This section governs here. The final judgment provided for a deviation from the guidelines pursuant to subparagraph (a)10., and the court held that the father failed to regularly exercise his child support. Thus, the court did not need to make a further, explicit finding that there had been a substantial change in circumstances.

Next, the court needed to determine a starting date for the retroactive child-support obligation. The father correctly notes that modifications are generally retroactive to the date of the supplemental petition. See Miles v. Champlin, 805 So. 2d 1085, 1087 (Fla. 1st DCA 2002). But section 61.30(11)(c) provides an exception to that general rule, allowing retroactivity "to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule." In this case, the court determined that the father never regularly exercised his timesharing. The parties' testimony supported this determination.

Finally, the court properly utilized the child-support guidelines to calculate how much the father would have paid without considering transportation costs. The court also found that the father had the ability to pay that amount based on his current financial affidavit. We find no abuse of discretion.

C.

Last, we affirm as to the attorney's fees because the asserted error was not raised through a rehearing motion. "[W]here an error by the court appears for the first time on the face of a final order, a party must alert the court of the error via a motion for rehearing or some other appropriate motion in order to preserve it for appeal." Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014).

AFFIRMED. ROBERTS, KELSEY, and WINSOR, JJ., concur.

Not final until disposition of any timely and authorized motion under Fla . R. App. P. 9.330 or 9.331. John M. Merrett, Jacksonville, for Appellant. Chanda L. Rogers of Faltemier Rogers, PLLC, Fernandina Beach, for Appellee.

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