DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
PEDRO SUAREZ,
Appellant,
v.
CANDICE MURPHY SUAREZ,
Appellee.
No. 4D18-1148
[November 13, 2019]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE12-002163.
Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton,
for appellant.
Owei Z. Belleh of The Belleh Law Group, P.L.L.C., Fort Lauderdale, for
appellee.
MAY, J.
The former husband appeals an order terminating alimony, re-
calculating child support, and modifying time-sharing. He argues the trial
court erred in: (1) terminating alimony because the evidence did not
support that decision and the court did not make the statutorily-required
findings; (2) applying the gross-up method to calculate child support; and
(3) modifying time-sharing. We agree in part and reverse in part. We
remand the case to the trial court for further proceedings consistent with
this opinion.
The former husband and wife entered into a marital settlement
agreement (“MSA”). The MSA divided the former couple’s major assets and
created a schedule for the former wife’s alimony payments to the former
husband. The MSA provided for each parent to spend equal amounts of
time with the children; the former wife agreed to pay nearly all childcare
expenses.
After the former husband refused to follow a provision regarding the
division of assets, the former wife moved to have him held in contempt.
The former husband responded by moving to have the former wife held in
contempt for failing to pay alimony, child support, and follow the MSA
regarding assets. The former wife then moved to modify alimony, child
support, and the timesharing agreement.
In support of the modification, the former wife testified that a decline
in her title business resulted in decreased income, causing her to downsize
from seven employees to one. The title company relied on short sales. The
former wife claimed rising property values caused a decrease in the
number of short sales and a 75% reduction in earnings from each sale.
She testified that her major client, responsible for about 85% of the title
company’s business, opened its own title division and stopped using her
company’s services. She claimed her efforts to maintain the business were
also hindered by marketing regulations implemented shortly before the
MSA, and trade regulations implemented shortly after. Her marketing
efforts were limited to hosting luncheons and teaching a class.
The impact of the title business’ decline and the collapse of another
business was substantiated by the former wife’s tax returns and income
estimates. She testified her title business’ annual income declined almost
60%. This caused a significant decline in her annual income. The former
wife admitted this decline did not include personal expenses she ran
through her title business.
Although the MSA provided for equal timesharing, that never occurred.
The former wife testified the former husband’s work schedule caused the
children to spend almost 90% of their time with her. The former husband
further disrupted the time-sharing arrangement when he had an
altercation with his son, resulting in the former wife filing an ex parte
motion for full custody of the children.
The couple later amended the timesharing agreement to allow the
daughter to spend time with her father. Even that time became limited
due to the father’s work schedule and the daughter’s activities.
The MSA assigned the former wife full financial responsibility for the
children’s expenses, except for medical, camp, and extracurricular
expenses the couple would split. She collected and sent the former
husband receipts for extracurricular activities and made him aware of
medical costs, but he failed to pay his share of those costs. The former
wife admitted she did not get the former husband’s permission before
committing to extracurricular activities, but claimed that he failed to
review the suggested activities and did not object to them.
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The trial court found the 75% decline in the former wife’s business
resulted from the loss of her biggest client, the decline in market value of
short sales, and the change in business regulations. These factors created
a substantial, material, permanent, and involuntary change in
circumstances meriting termination of the former wife’s alimony
obligation.
The trial court modified timesharing to reflect the couple’s actual
practice, which consisted of the daughter spending 30% of her time with
the former husband. It ordered reunification therapy between the former
husband and the son. It imposed a child-support obligation on the former
husband to make up for changes in the former wife’s income and the
modified timesharing. The trial court denied the former husband’s
motions to hold the former wife in contempt.
The former husband now appeals.
The Alimony Issue
We have a mixed standard of review of the order modifying alimony.
Bauchman v. Bauchman,
253 So. 3d 1143, 1146 (Fla. 4th DCA 2018). “The
trial court’s legal conclusions are reviewed de novo.”
Id. “The trial court’s
factual findings are reviewed for abuse of discretion and should be affirmed
if supported by competent, substantial evidence.”
Id.
The former husband argues the trial court erred in terminating the
former wife’s alimony obligation because: (1) the court’s finding of a
substantial, material, unanticipated, involuntary, and permanent change
in circumstances is not supported by competent, substantial evidence; (2)
the court failed to make the findings required by section 61.08(2), Florida
Statutes (2018); and (3) the court failed to rule on the former wife’s unpaid
alimony obligation.
The former wife responds the trial court correctly adhered to the
statutory requirements of section 61.14, Florida Statutes (2018), and
competent and substantial evidence supported the court’s finding that the
former wife’s change in circumstances were substantial and material,
unanticipated, and involuntary.
‘“In considering [alimony] modification, the court can and should take
into consideration all factors and contrast the total circumstances at the
time of the original order with all the current circumstances.”’ Wilson v.
Wilson,
37 So. 3d 877, 880 (Fla. 2d DCA 2010) (citation omitted). To
modify alimony, the movant must show:
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1) a substantial change of circumstances;
2) that the change was not contemplated at the time of the
final judgment; and
3) that the change is sufficient, material, involuntary, and
permanent in nature.
Mendes v. Mendes,
947 So. 2d 450, 452 (Fla. 4th DCA 2006).
“[M]odification may not be based upon factors affecting income known to
the parties at the time a final judgment is entered.”
Id.
In Mendes, the trial court denied the husband’s motion for modification
because his change in income was anticipated due to the mercurial nature
of the real estate market.
Id. We affirmed the order denying modification,
but noted the court’s reliance on the husband’s knowledge of possible
fluctuations in his industry affecting his income was “misplaced.”
Id.
Although the court knew the husband’s income could fluctuate, “the
character of the actual change and consequences to income” were not
known beforehand.
Id.
Here, the trial court correctly found the former wife had a substantial
change in income to warrant modification. Like Mendes, the former wife
worked in the real estate industry. However, it was not a mere fluctuation
in the industry, but an unanticipated substantial decline in income due to
the loss of a major client, changed regulations, and the fluctuation in the
market. Those changes were involuntary and permanent. See
Wilson, 37
So. 3d at 882. And despite best efforts, the former wife was unable to
return to the income she previously enjoyed. We see no error in the court’s
findings, which were supported by competent, substantial evidence.
Despite the evidence supporting the trial court’s decision to terminate
the former wife’s alimony obligation, the trial court was required to make
statutorily required findings, pursuant to section 61.08(2), Florida
Statutes. Once a party moving for alimony modification provides
substantial, permanent, and unanticipated change in circumstances, “a
trial court must consider and make specific factual findings for each of
[the] factors [within section 61.08(2)] . . . .” Addie v. Coale,
179 So. 3d
534, 536 (Fla. 4th DCA 2015).
Section 61.08(2) enumerates the factors to be considered:
(a) The standard of living established during the marriage.
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(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each
party.
(d) The financial resources of each party, including the
nonmarital and the marital assets and liabilities
distributed to each.
(e) The earning capacities, educational levels, vocational
skills, and employability of the parties and, when
applicable, the time necessary for either party to acquire
sufficient education or training to enable such party to find
appropriate employment.
(f) The contribution of each party to the marriage, including,
but not limited to, services rendered in homemaking, child
care, education, and career building of the other party.
(g) The responsibilities each party will have with regard to any
minor children they have in common.
(h) The tax treatment and consequences to both parties of any
alimony award, including the designation of all or a portion
of the payment as a nontaxable, nondeductible payment.
(i) All sources of income available to either party, including
income available to either party through investments of
any asset held by that party.
(j) Any other factor necessary to do equity and justice between
the parties.
§ 61.08(2)(a)-(j), Fla. Stat. (2018).
“The failure to provide these required findings may . . . constitute
reversible error.” Geoghegan v. Geoghegan,
969 So. 2d 482, 485 (Fla. 5th
DCA 2007). However, courts will not reverse where the record contains
competent, substantial evidence to support the need and ability to pay
alimony. McCann v. Crumblish-McCann,
21 So. 3d 170, 171 (Fla. 2d DCA
2009).
The trial court orally found:
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The circumstances which has caused [the former wife’s
company] to drastically lose income are, in fact, permanent. .
. . . And these changes are involuntary as the former wife has
no control over the fees that the business collects.
The record is barren of any other consideration of the factors enumerated
in section 61.08(2). The court only addressed whether the former wife’s
change in circumstances were substantial, unanticipated, and material.
The trial court further failed to address: (1) whether the former wife had
an ability to pay; and (2) whether the former husband had any need for
any amount of alimony payments. Henry v. Henry,
191 So. 3d 995, 998
(Fla. 4th DCA 2016) (“Awards of retroactive alimony must be based on
need and ability to pay.”). These lack of findings require us to reverse.
In addition, the trial court consolidated the issues of alimony and
contempt, declaring “contempt is still on the table with respect to
nonpayment of alimony.” The trial court then declared, “we need to redo
the math to see how much former [h]usband is owed for the month that
he didn’t receive the alimony.” But, when the court issued its order
terminating the former wife’s alimony obligation effective upon the order
date, it remained silent on the retroactive alimony owed to the former
husband. These omissions also require us to reverse. See Vitro v. Vitro,
122 So. 3d 382, 385 (Fla. 4th DCA 2012).
Timesharing
The former husband next argues the trial court abused its discretion
when it modified the timesharing agreement because there was insufficient
evidence supporting a sufficient, material, permanent, involuntary change
in the former wife’s circumstances and it failed to consider the best interest
of the children. The former wife responds there was sufficient evidence of
a material, permanent, and involuntary change in circumstances
warranting the modification of timesharing.
“[A] time-sharing determination can only be modified if there has been
a ‘showing of a substantial, material, and unanticipated change in
circumstances’ and a finding ‘that the modification is in the best interests
of the child.”’ Korkmaz v. Korkmaz,
200 So. 3d 263, 265 (Fla. 1st DCA
2016) (quoting § 61.13 (3), Fla. Stat.).
A court cannot modify a timesharing schedule without a “determination
that the modification is in the best interests of the child.” § 61.13 (3), Fla.
Stat. (2018). Although the lower court “need not independently address
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each of the listed factors” used to evaluate children’s best interest, “[it]
must make a finding that the timesharing schedule is in the best interest
of the children.” Davis v. Davis,
245 So. 3d 810, 812 (Fla. 4th DCA 2018).
Here, the trial court failed to make the requisite finding of whether the
timesharing change would be in the best interest of the children. The court
noted the limited time (30%) the former husband spent with the children
and that he was estranged from his son. The court ordered reunification
therapy and joint counseling sessions. But, the trial court fell short of
finding whether the 30% timesharing was in the best interest of both
children. Within the trial court’s oral pronouncement, it briefly mentioned
the issue between the former husband and son, but that was the extent of
the discussion. As we held in Davis, we must reverse because of this
omission.
Child Support
The former husband argues there was insufficient evidence to modify
the child support agreement and the trial court improperly applied the
gross-up calculation method. The former wife responds the evidence
established a substantial, material, permanent, and involuntary change in
circumstances to support the child support modification.
We review child support modification orders for an abuse of discretion.
Woolf v. Woolf,
901 So. 2d 905, 911 (Fla. 4th DCA 2005). “Where the
essential findings necessary to calculate child support pursuant to the
guidelines are missing from the record, the appellate court cannot properly
perform its review function.” Johansson v. Johansson,
270 So. 3d 426,
427–28 (Fla. 4th DCA 2019).
Section 61.30, which governs retroactive child support, provides:
(b) Whenever a particular parenting plan, a court-ordered
time-sharing schedule, or a time-sharing arrangement
exercised by agreement of the parties provides that each child
spend a substantial amount of time with each parent, the
court shall adjust any award of child support, as follows:
1. In accordance with subsections (9) and (10), calculate the
amount of support obligation apportioned to each parent
without including day care and health insurance costs in the
calculation and multiply the amount by 1.5.
2. Calculate the percentage of overnight stays the child spends
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with each parent.
3. Multiply each parent’s support obligation as calculated in
subparagraph (1) by the percentage of the other parent’s
overnight stays with the child as calculated in subparagraph
(2).
4. The difference between the amounts calculated in
subparagraph (3) shall be the monetary transfer necessary
between the parents for the care of the child, subject to an
adjustment for day care and health insurance expenses.
5. Pursuant to subsections (7) and (8), calculate the net
amounts owed by each parent for the expenses incurred for
day care and health insurance coverage for the child.
6. Adjust the support obligation owed by each parent
pursuant to subparagraph (4) by crediting or debiting the
amount calculated in subparagraph (5). This amount
represents the child support which must be exchanged
between the parents.
7. The court may deviate from the child support amount
calculated pursuant to subparagraph (6) based upon the
deviation factors in paragraph (a), as well as the obligee
parent’s low income and ability to maintain the basic
necessities of the home for the child, the likelihood that either
parent will actually 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, and whether all of the children are
exercising the same time-sharing schedule.
8. For purposes of adjusting any award of child support under
this paragraph, “substantial amount of time” means that a
parent exercises time-sharing at least 20 percent of the
overnights of the year.
§ 61.30, Fla. Stat. (2018).
Here, the trial court used the gross-up method for both children despite
its finding that the son was not spending any overnights with the former
husband from March 2015 to December 2017. The court acknowledged
the need to recalculate child support in light of that fact, but then
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incorrectly used the gross-up method, which is available only if the child
spends at least 20% of the overnights with the parent. We must therefore
reverse the trial court’s child support determination.
For the reasons expressed above, we reverse and remand the case for
further proceedings consistent with this opinion.
Reversed in part and Remanded.
TAYLOR and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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