FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D2022-3853
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ERIC HARDWICK,
Appellant,
v.
CHRISTIE SMITH,
Appellee.
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On appeal from the Circuit Court for Leon County.
Dawn Caloca-Johnson, Judge.
December 27, 2023
OSTERHAUS, C.J.
Eric Hardwick appeals from a child support modification
order in which the trial court declined to grant retroactive
modification of his obligation from the date that his minor child
began living with him full time. We agree that Appellant was
entitled to retroactive modification and reverse.
I.
The parties are parents to a minor child. In 2006, the parties
began a timesharing schedule where their child resided primarily
with Appellee. Appellant had timesharing every other weekend
and Tuesday night, as well as owed monthly child support
payments until the child graduated high school or turned 19.
By agreement of the parties, beginning in March 2020, the
child began to live with Appellant full time. Appellant, however,
did not seek modification of the child support award until over a
year-and-a-half later. When the court decided his petition, it
awarded him retroactive modification of child support only from
the date he filed the petition for modification in 2021. The court
declined to retroactively modify the child support due from the
date that the child first began living with Appellant on account of
§ 61.30(11)(c), Florida Statutes, which governs retroactive child
support modification. The Court concluded that the statute failed
to authorize retroactive modification under these circumstances
because it deemed Appellant to be a noncustodial parent.
II.
We review questions of statutory interpretation de novo. E.g.,
Crapo v. University Cove Partners, LTD,
298 So. 3d 697, 700 (Fla.
1st DCA 2020). Section 61.30(11)(c) provides that:
A parent’s failure to regularly exercise the time-
sharing schedule . . . shall be deemed a substantial
change of circumstances for purposes of modifying the
child support award. A modification pursuant to this
paragraph is retroactive to the date the noncustodial
parent first failed to regularly exercise the court-ordered
or agreed time-sharing schedule.
§ 61.30(11)(c), Fla. Stat. (emphasis added).
Chapter 61 does not define “custodial” or “noncustodial.” The
trial court considered Appellant to be a noncustodial parent based
on the original timesharing arrangement and order in which
Appellee exercised primary custody. In turn, because Appellee was
the party who then discontinued exercising court-ordered
timesharing when the child switched to living with Appellant, the
court concluded that Appellant was not entitled to retroactive
modification.
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In determining which parent is “custodial” versus
“noncustodial” under § 61.30(11)(c), we consider the parties’ real-
life situation and who is caring for the minor child. The party who
is caring for and providing for the child’s basic everyday needs is
the “custodial” parent. See Hallberg v. State,
649 So. 2d 1355, 1357-
58 (Fla. 1994) (concluding “that the term ‘custodial,’ absent a
statutory definition, must be construed in accordance with the
commonly understood definition as one having custody and control
of another”; connoting “a duty or obligation to care”); Coleman v.
State,
485 So. 2d 1342, 1345 (Fla. 1st DCA 1986) (defining
custodial in a different context in terms of “a guarding or keeping
safe; care; protection; guardianship.”); see also Custodial,
Merriam-Webster, https://www.merriam-webster.com/dictionary/
custodial (last visited Dec. 1, 2023) (defining “custodial” as
“relating to, providing, or being protective care or services for basic
needs”).
In this case, Appellant became the custodial parent when the
child moved in with him and Appellee stopped exercising the court-
ordered timesharing. Knight v. Knight,
208 So. 3d 1278 (Fla. 1st
DCA 2017), is instructive on this point. In Knight, the parties
originally had equal time-sharing of a minor child and neither was
noncustodial under the terms of the court order. But later, “the
father failed to exercise his timesharing responsibilities—
essentially yielding full custody to the mother.”
Id. at 1278. This
Court affirmed the retroactive modification ordered by the trial
court under section 61.30(11)(c) and directed continued retroactive
application on remand because the father failed to exercise his
time-sharing.
Id. at 1279.
Here, as with the father in Knight, the mother yielded custody
of the child. Thus, under Knight and customary definitions of
“custodial,” she became “the noncustodial parent [who] . . . failed
to regularly exercise the court-ordered or agreed time-sharing
schedule.” § 61.30(11)(c), Fla. Stat. Accordingly, Appellant
qualified under the statute for retroactive modification from the
date the child began to live with him full time, dependent upon the
trial court’s determination of the parties’ comparative financial
abilities. See § 61.30(1)(a), Fla. Stat. (requiring court to “consider[]
all relevant factors, including the needs of the child or children,
age, station in life, standard of living, and the financial status and
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ability of each parent”); § 61.30(11)(b)7, Fla. Stat. (allowing
consideration of “the obligee parent’s low income and ability to
maintain the basic necessities of the home for the child”).
III.
We therefore REVERSE and REMAND for the trial court to
award retroactive modification from the date that Appellee first
stopped exercising the court-ordered timesharing.
KELSEY and M.K. THOMAS, 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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Daniel Phillips, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Toni C. Bernstein, Sr.
Assistant Attorney General, Tallahassee for Department of
Revenue, Child Support Enforcement.
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