DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
HEATHER SEITH,
Appellant,
v.
RICHARD SEITH,
Appellee.
No. 4D21-556
[March 2, 2022]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Martin County; Michael J. McNicholas, Judge; L.T. Case No.
432011000792DRAXMX.
L. Lisa Batts of Stuart Law Group, P.A., Stuart, for appellant.
Karen O’Brien Steger of Steger Law, Stuart, for appellee.
WARNER, J.
A mother appeals a final order granting the father’s petition for
modification of timesharing and her own counterpetition to modify child
support. The court modified the timesharing arrangement for the parties’
minor son due to the mother’s relocation. The court also modified the
child support based upon the father’s increase in income. We affirm the
modification of timesharing, but we reverse the child support because the
trial court made three errors. First, the court erred in misstating the
number of overnights with the child that each party was allowed, which
affects the child support calculation. Second, the court failed to include
an income deduction order as mandated by section 61.1301(1)(a), Florida
Statutes (2020). Finally, the court erred by including in the judgment
incorrect child support guideline ratios, which affects the parties’
responsibilities for collateral child expenses.
The parties were divorced in 2013, when their minor child was four
years old. In the final judgment, the court provided a parenting plan with
more time with the mother. At the time of the divorce, both parties were
ophthalmologists. The mother was employed in a practice in Martin
County, and the father saw patients in a practice in both Martin and St.
Lucie counties.
Four years after the final judgment, the mother’s employment contract
ended and was not renewed. She eventually took a position which required
her to work in Fort Lauderdale. She relocated her residence to Lake Worth,
Florida, which was forty-six miles from her previous residence, notifying
the father only after her relocation was complete.
The father filed a petition to modify his timesharing, and the mother
filed a counterpetition to modify child support. At the hearing on the
modifications, the father testified that the relocation of the child disrupted
his patient schedule in order to maintain his timesharing days. To
minimize the driving, he had purchased a condominium in Lake Worth,
where he and the child would stay when he picked the child up in the early
evening for his visitation, and on Sundays when the child had to be in
school the next day.
The court determined that the mother’s relocation impeded the
timesharing schedule and required the father to revise his business
schedule, concluding that the move constituted a substantial, material,
and unanticipated change of circumstances. The court then modified the
timesharing order, giving the father additional overnights in the summer
schedule. In its ruling, the court also granted the mother’s petition to
modify alimony, increasing the child support in accordance with the child
support guidelines.
When making the calculations on the guidelines scoresheet, however,
the court used 180 days as the number of overnights that the child would
spend with the father after the modification, which misstated the actual
overnights the father would spend with the child. In addition, the court
determined that the child support guidelines’ ratios, which affect how
collateral child expenses are allocated, were 50/50, when in fact the ratios
were 66.88% for the father, and 33.12% for the mother. The wife appeals
the final judgment.
Modification of Timesharing Plan
“A trial court’s order modifying a parenting plan is reviewed for an
abuse of discretion.” Schot v. Schot,
273 So. 3d 48, 50 (Fla. 4th DCA 2019).
Thus, on appeal, the decision should be affirmed when “there is
competent, substantial evidence supporting the trial judge’s conclusion.”
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Hollis v. Hollis,
276 So. 3d 77, 79 (Fla. 2d DCA 2019) (quoting McKinnon
v. Staats,
899 So. 2d 357, 359 (Fla. 1st DCA 2005)).
Section 61.13(3)–(6), Florida Statutes (2020), govern the creation and
modification of parenting plans, including timesharing arrangements. “A
determination of parental responsibility, a parenting plan, or a time-
sharing schedule may not be modified without a showing of a substantial,
material, and unanticipated change in circumstances and a determination
that the modification is in the best interests of the child.” § 61.13(3), Fla.
Stat. (2020). Although relocation alone is not considered a substantial
change in circumstance warranting a change of a parenting plan, where it
interferes with the parenting plan established by the court in a final
judgment, a court may restrict relocation. See Shafer v. Shafer,
898 So.
2d 1053 (Fla. 4th DCA 2005).
In this case, rather than restrict the mother’s ability to relocate, the
court made a modest adjustment of timesharing. The court found an
unanticipated and substantial change in circumstance, as the mother’s
change of jobs and necessary relocation was unanticipated. Further, the
court found the move constituted a “substantial” and “material” change,
finding that mother’s move “impede[d] the initial timesharing schedule.”
This caused not only a disruption for the child, but also for the father’s
work schedule. Finding it in the child’s best interest not to be shuffled as
often between residences, the court made a modest adjustment of the
timesharing schedule, which would have the parents “spend[ing] less time
traveling in order to accommodate the child’s time with each parent, and
would allow the child a longer continuous period of time in which to form
a better bonding relationship with each parent.” The evidence supports
the court’s determinations.
The mother also maintains that this case is like Halbert v. Morico,
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So. 3d 771 (Fla. 2d DCA 2010). We disagree. In Halbert, after the final
judgment established rotating custody of the parties’ minor child, the
father changed his employment and moved forty-five miles away from the
mother’s home. The mother petitioned for modification to change primary
custody to her. Opposing the change, the father testified that he could
drive the child to and from school on the days that he had custody, and
that his employer was willing to provide him flexibility in his schedule. The
trial court granted the mother’s petition to modify the arrangement to
provide that the minor child reside with the mother during the school
week. On appeal, however, a majority of the panel reversed. Although the
majority recognized that the father’s relocation would result in longer
drives to and from school and school-related activities, the majority did
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not consider the change as so substantial as to change the custody
arrangement.
Id. at 773.
Unlike Halbert, in this case the court did not change the custody
arrangement. The mother remained with the majority of the timesharing.
The father, admirably, made significant changes, including the purchase
of a condominium, and the extra travel to accommodate the mother’s
relocation. The father did not seek to modify the entire weekday schedule
during the school year, but only sought to make a modification to the
summer schedule which as mother admits was a change that resulted “in
a net gain of six (6) overnights” a year to the father’s timesharing with the
minor child.
This modest adjustment also makes this case different from Hollis v.
Hollis,
276 So. 3d 77 (Fla. 2d DCA 2019), also relied on by the mother.
There, about six months after a final judgment which allowed the mother
the majority of time with the children, the parties both filed petitions for
modification of that arrangement. The trial court granted the father with
majority timesharing without showing any basis for the change other than
the father’s relocation forty-seven miles from the mother. The appellate
court reversed, noting that relocation alone was not a substantial change
in circumstance. The court remarked that the trial court failed to
elaborate orally or in its order how the evidence “weighed for or against
modification.”
Id. at 79. On the other hand, in this case the court gave
an explanation as to why the relocation and distance caused a disruption
for the child and for the father’s medical practice.
On this record, competent substantial evidence supports the court’s
finding of unanticipated, substantial material change in circumstances
and that the modification of the summer schedule was in the best interests
of the minor child. Accordingly, the court did not abuse its discretion.
Modification of Child Support
The mother filed a counterpetition for modification of child support. In
her petition and at the final hearing, the mother testified that the original
parenting plan allowed the father 144 overnights with the child and the
mother 221 overnights. During closing argument, the father’s counsel also
relied on the original plan’s allowance of 144 overnights. Despite this, in
the final judgment, the court stated that “[u]nder the initial timesharing
plan, the Former Husband has the child 162 overnights and the Former
Wife has the child 203 overnights.” The court then determined that
“[u]nder the new timesharing schedule, the Former Husband has the child
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180 overnights and the Former Wife has the child 185 overnights.” The
court used these figures in the child support guidelines schedule to
calculate each party’s share of child support.
As the mother notes, the court misstated the number of overnights
allowed to the father under the original timesharing plan, which was 144.
The court’s new plan resulted in six additional overnights for former
husband. Importantly, on appeal the father does not take issue with
former wife’s calculation of six as the number of additional overnights that
he receives under the new plan.
The number of overnights which children spend with each parent is
part of the formula for calculating the amount of child support allocated
to each parent. See § 61.30(11)(b), Fla. Stat. (2020). Therefore, these
amounts must be correct to obtain the required child support under the
guidelines. The court should recalculate the child support award using
the correct number of overnights. See Murphy v. Murphy,
313 So. 3d 237,
239–40 (Fla. 2d DCA 2021).
Income Deduction Order
The mother also argues that the court erred in failing to require
payment of child support through the Florida State Depository with an
income deduction order, along with the arrears required in the final
judgment. Instead, the court ordered that child support be paid “directly
to the wife.” We agree that the court was required to issue an income
deduction order for the child support.
Section 61.1301(1)(a), Florida Statutes (2020) states, “Upon the entry
of an order establishing, enforcing, or modifying an obligation for . . . child
support . . . other than a temporary order, the court shall enter a separate
order for income deduction if one has not been entered.” (Emphasis
supplied). The statute is mandatory. See Dorsett v. Dorsett,
902 So. 2d
947, 953 (Fla. 4th DCA 2005) (“It is unambiguous from both the statutory
language and its judicial interpretation that every child support order is to
be accompanied by an income deduction order.”).
Child Support Guidelines Ratio
Finally, the mother argues that the court erred by failing to use the
correct child support guideline percentages, which establish the ratio of
each party’s responsibility for collateral child support items, such as
medical expenses not covered by insurance. The final judgment states
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that: “[t]he new child support guideline ratios are 50% for the Former
Husband and 50% for the Former Wife.” We agree that the court erred.
In Julia v. Julia,
263 So. 3d 795 (Fla. 4th DCA 2019), we determined
that “absent some logically established rationale in the final judgment to
the contrary, collateral child support expenses must be allocated in the
same percentage as the child support allocation.” Id. at 797 (quoting
Zinovoy v. Zinovoy,
50 So. 3d 763, 764–65 (Fla. 2d DCA 2010)). That
portion of the trial court’s post-judgment order establishing the ratio was
reversed and remanded. On remand, we directed that “the trial court may
provide a ‘logically established rationale’ for the disparate collateral
support percentages. Otherwise, the trial court must allocate the
collateral child support expenses in the same percentage as the regular
child support allocation.”
Id. at 797–98.
In this case, the original final judgment stated that “[t]he parties shall
share all uncovered health expenses for the minor child in proportion to
their child support obligations.” (Emphasis supplied). That is consistent
with Julia. Unfortunately, the original final judgment then stated with
respect to such expenses, “[t]he non-paying party shall reimburse the
other party fifty (50%) percent of said cost within twenty (20) days
thereafter.” If this was meant to contradict the first sentence, no
explanation was given for the difference.
In the modification judgment, the court determined that the child
support guideline ratios were split 50/50, but the child support guidelines
schedule attached to the judgment shows that the percentages of financial
responsibility as 66.88% for the father and 33.12% for the mother. Thus,
the court’s determination was contrary to Julia because no explanation
was given for modifying the child support guideline ratios.
The father argues that the court’s determination was consistent with
the original final judgment. The final judgment, however, is inconsistent,
and no explanation is given for its apparently contradictory provisions.
Nor is there any explanation by the court in the modification proceeding
to justify a departure from the child support guidelines schedule
percentages. Accordingly, we reverse on this issue and remand for the
court to provide its basis for the ratios or to adopt the ratios set forth in
the child support guidelines schedule.
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Conclusion
The court modified the timesharing plan because of the impact that the
mother’s unanticipated relocation had on the existing timesharing
arrangement, the father’s practice, and the best interest of the child. The
court did not abuse its discretion. The court did, however, err in
calculating child support, as it misstated the number of overnights with
the child allowed to each party. The court also erred in failing to enter a
mandatory income deduction order for the child support. Finally, the
court erred in determining that the child support guidelines ratios were
50/50, when that did not comport with the schedule attached to the final
judgment, and no reason was given for the deviation. Thus, we affirm the
judgment as to modification of timesharing, but reverse the child support
and remand for the court to readdress the support as to the issues
addressed in this opinion.
Affirmed in part and reversed and remanded in part with instructions.
GROSS and ARTAU, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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