Bachman v. McLinn , 2016 Fla. App. LEXIS 11060 ( 2016 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
KATY BACHMAN, )
)
Appellant, )
)
v. ) Case No. 2D15-2796
)
MICHAEL McLINN, )
)
Appellee. )
)
Opinion filed July 20, 2016.
Appeal pursuant to Fla. R. App. P. 9.130
from the Circuit Court for Lee County;
John S. Carlin, Judge.
Matthew S. Toll and Stephen N. McGuire,
II, of Toll Law, Cape Coral, for Appellant.
Renee Binns of Binns Family Law
Associates, P.A., Cape Coral, for Appellee.
MORRIS, Judge.
Katy Bachman, the former wife, appeals an order granting child support
relief to Michael McLinn, the former husband. We reverse the portion of the order
granting the former husband retroactive relief for child care costs.
The parties were married for twenty-five years before their marriage was
dissolved in December 2005. The parties' only child was eight years old at the time of
the divorce. In 2007, the parties filed petitions to modify the final judgment, and the
former husband's petition was granted. This court reversed and remanded with
instructions to enter judgment in favor of the former wife. Bachman v. McLinn, 65 So.
3d 71, 75 (Fla. 2d DCA 2011). It is not clear from the limited record in this appeal, but it
appears that on remand from that appeal, the trial court entered an amended
supplemental judgment in favor of the former wife in August or September 2011.
In June 2012, the former husband filed a supplemental petition for
modification of child support, claiming that he was entitled to a retroactive reduction in
child support because $61.88 in monthly child care costs had not been incurred since
April 2009. In September 2012, the former husband also filed a motion for relief,
seeking credits against his child support arrears for the child care costs that had not
been incurred since April 2009. On June 2, 2015, the trial court entered an order
granting the former husband's motion for relief and crediting the former husband with
"$61.88 per month from March of 2010 as child care which [f]ormer [w]ife did not incur."1
On appeal, we find merit only in the former wife's claim that the trial court
erred in crediting the former husband $61.88 per month in child care costs retroactive to
March 2010. The former husband filed his supplemental petition seeking this relief in
June 2012. Therefore, the trial court erred in granting relief for child care costs
retroactive to March 2010. See § 61.14(1)(a), Fla. Stat. (2011) ("Except as otherwise
1
In his motion for relief, the former husband also sought credit for the
number of additional overnights the child spent with him during the pendency of the first
appeal. In the order on the former husband's motion for relief, the trial court credited the
former husband for "the additional overnights he enjoyed with the parties' son" during
the pendency of the first appeal from March 2010 through August 2011. We do not
address this portion of the order because the former wife does not clearly challenge it
on appeal and it is not clear from our limited record whether this ruling was proper.
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provided in [section] 61.30(11)(c), the court may modify an order of support . . . by
increasing or decreasing the support . . . retroactively to the date of the filing of the
action or supplemental action for modification as equity requires . . . ."); Fayson v.
Fayson, 482 So. 2d 523, 525 (Fla. 5th DCA 1986) ("A trial court can only modify support
payments prospectively from the time a petition for modification is filed." (first citing
Benson v. Benson, 369 So. 2d 99 (Fla. 5th DCA 1979); and then citing Alterman v.
Alterman, 208 So. 2d 472 (Fla. 3d DCA 1968))). Accordingly, we reverse the portion of
the order on appeal relating to child care costs and remand for the trial court to credit
the former husband for such costs retroactive to June 2012.
We note that on the same day the trial court entered the order on appeal,
June 2, 2015, the trial court also entered a supplemental judgment on the former
husband's petition, crediting the former husband for the child care costs from June 2012
forward. This was proper, and the former wife does not appeal this supplemental final
judgment. In addition, the former wife and the former husband both represent on
appeal that the parties entered into an agreement acknowledging that the trial court
"erroneously credited [f]ormer [h]usband for child care costs from March 2010 through
May 2012" and that the former husband "is not procedurally entitled to the credit from
March of 2010 through May of 2012." Accordingly, our decision is consistent with the
trial court's supplemental final judgment as well as the concession by the former
husband that the relief he received on this matter should be retroactive only to June
2012.
Affirmed in part, reversed in part, and remanded.
BLACK and BADALAMENTI, JJ., Concur.
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