FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Nos. 1D20-3726
1D21-0020
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SUSAN JENNINGS,
Appellant,
v.
JOSE E. ARENAS FREDES,
Appellee.
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On appeal from the Circuit Court for Leon County.
Barbara K. Hobbs, Judge.
September 22, 2021
ROWE, C.J.
Susan Jennings appeals an order amending for a second time
the parenting plan entered after the dissolution of her marriage to
Jose Arenas Fredes. Jennings argues that the trial court erred by:
(1) not affording her due process during the final hearing,
(2) determining timesharing of the parties’ two minor children
using a prospective-based analysis, and (3) calculating child
support. We affirm the first issue. We reverse as to the other two.
After Jennings petitioned to dissolve the marriage, the parties
agreed to roughly equal timesharing of their children in a
temporary marital settlement agreement. Soon after, Jennings
petitioned to relocate with the children to South Carolina. The
court denied her petition and ordered the parties to remain in
Florida. Even so, Jennings and Fredes later agreed that Jennings
could take the children to South Carolina. But they did not agree
for how long. Jennings moved to South Carolina with the children.
After relocating, she refused to allow Fredes to exercise
timesharing with the children. Fredes sought relief in the trial
court. The court granted Fredes majority timesharing with the
children. The children were to reside with him in Tallahassee
during the school year. The court granted Jennings majority
timesharing with the children for the summer.
The dissolution proceeded to a final hearing. Following the
hearing, the trial court entered an order awarding Fredes majority
timesharing during the school year, with Jennings having
timesharing one weekend each month, six weeks during the
summer, and during certain holidays. The court also included a
conditional timesharing provision that would apply should
Jennings decide to relocate to Tallahassee. The court ordered
Fredes to pay child support arrears to Jennings. It ordered
Jennings to begin paying child support in October 2020. This
timely appeal follows.
Jennings first argues that the trial court deprived her of due
process during the final hearing by not giving her attorney enough
time to cross-examine Fredes and by not allowing her to present
her witnesses’ testimony. We review de novo “[w]hether a violation
of due process has occurred under a given set of facts.” Dep’t of
Revenue ex rel. Thorman v. Holley,
86 So. 3d 1199, 1204 (Fla. 1st
DCA 2012). We are hampered in our review of Jennings’ due
process claim because she did not provide a transcript of the final
hearing. Without an adequate record, we cannot “properly resolve
the underlying factual issues” raised by Jennings on appeal.
Applegate v. Barnett Bank of Tallahassee,
377 So. 2d 1150, 1152
(Fla. 1979) (“In appellate proceedings the decision of a trial court
has the presumption of correctness and the burden is on the
appellant to demonstrate error.”). Because the record is
inadequate to show reversible error by the trial court, we affirm as
to Jennings’ due process argument. See
id.
Next, Jennings argues that the trial court reversibly erred by
engaging in a prospective-based analysis in determining
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timesharing. We review an order on timesharing for an abuse of
discretion. Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla.
1980). Here, the trial court ordered a long-distance timesharing
plan. But the court also provided for a local timesharing plan that
would apply if one of the parties relocated in the future and if the
parties resided within fifty miles of one another.
The trial court abused its discretion by including this
provisional award of timesharing. Under section 61.13001(3),
Florida Statutes (2020), unless the parents of a minor child agree,
a parent seeking to relocate more than fifty miles from their
current residence must petition the court for approval. The court
must determine at the time of the final hearing whether the
relocation is in the child’s best interest. Arthur v. Arthur,
54 So. 3d
454, 459 (Fla. 2010). The trial court’s award of timesharing based
on Jennings’ potential relocation in the future was not a present
determination of the children’s best interests, but a prospective-
based analysis. See Amiot v. Olmstead, 46 Fla. L. Weekly D1074
(Fla. 1st DCA May 11, 2021) (holding that the trial court abused
its discretion by including a conditional timesharing provision that
would come into play if one of the parties relocated). Thus, we
reverse and remand for the court to strike the conditional local
timesharing plan from its order.
Last, Jennings argues that the court erred when it calculated
current and retroactive child support because it failed to include
Fredes’ Veterans’ Administration disability benefits as income. We
review this issue for an abuse of discretion. Brown v. Brown,
180
So. 3d 1070, 1072 (Fla. 1st DCA 2015). We find no reversible error
in the trial court’s calculation of retroactive child support, but we
do find error in the trial court’s calculation of current child support.
In his 2020 financial affidavit, Fredes listed his monthly gross
income as $5,416. He listed his current monthly disability
payments as $575.69. Even so, the trial court calculated Fredes’
monthly income as $5,416, overlooking the monthly disability
benefits. As Fredes properly concedes, the trial court abused its
discretion by not including the disability benefits in Fredes’
monthly gross income. Gross income includes disability payments.
See § 61.30(2)(a)4., Fla. Stat. (2020). Thus, we reverse and remand
for the court to recalculate the current child support award.
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As to the trial court’s calculation of retroactive child support,
we affirm the trial court’s order because the record lacks any
evidence showing that Fredes received VA disability benefits
before 2020.
AFFIRMED in part, REVERSED in part, and REMANDED.
OSTERHAUS and WINOKUR, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Susan Jennings, pro se, Appellant.
Trudy E. Innes Richardson of Trudy Innes Richardson, PLLC,
Tallahassee, for Appellee.
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