Posted by Nydia Streets of Streets Law in Florida Child Support

Credit can be given to a parent in a Florida child support calculation for anticipated travel expenses associated with exercising timesharing. For example, if one parent lives in Florida and the other lives out of state, if the parent paying child support will incur significant costs in exercising timesharing, the court may enter an order reducing a child support obligation to account for those costs. In Smith v. Smith, 1D18-2771 (Fla. 1st DCA June 7, 2019), the former husband appealed an order which retroactive modified his child support obligation after he was granted a credit for timesharing travel expenses.

The parties were granted a divorce in which the court permitted the former wife to relocate to another state with the parties’ children. At the time, the court entered a Florida child support order which obligated the former husband to pay $1,100 per month, representing a substantial deviation from the Florida child support guidelines to account for costs the former husband would incur in exercising timesharing with the parties’ children. Subsequently, the former wife filed a petition to modify the timesharing and to modify child support, claiming the former husband was not exercising his timesharing and therefore not taking advantage of the credit awarded to him for travel expenses.

While her petition was pending, the former wife filed a motion which in part requested that child support be modified in accordance with the father’s lack of timesharing. The court set a retroactive amount at a hearing on the former wife’s motion and granted her attorneys’ fees. The former husband appealed on three grounds: (1) that the court did not have authority to enter the retroactive child-support award because the court entered its order on the mother's motion rather than her supplemental petition; (2) that the court abused its discretion in entering the retroactive award; and (3) that the court abused its discretion by awarding attorney's fees.

As to the former husband’s first argument, the appellate court disagreed, holding, “[T]he father correctly notes that the Florida Family Law Rules of Procedure require that a request to modify a final judgment be initiated through a supplemental petition rather than a motion. See Fla. Fam. L. R. P. 12.110(h); see also Thomas v. Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) ("A court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced."). But here, the retroactive adjustment was raised in the mother's petition. The father was on notice that the issue was before the court, and to the extent he now argues that only the motion and not the petition was noticed for the hearing, he has not preserved that argument for appeal.”

Turning to the former husband’s second argument, the appellate court again disagreed with the former husband, holding his failure to exercise timesharing was a substantial change in circumstances that warranted modification under Fla. Stat. 61.30. The appellate court held, “But section 61.30(11)(c) provides an exception to that general rule, allowing retroactivity "to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule." In this case, the court determined that the father never regularly exercised his timesharing. The parties' testimony supported this determination.”

Last, the court determined the father had not preserved his attorneys’ fee award challenge for appeal where he did not file a motion for rehearing in the lower court. Modification of child support sometimes involves complex issues which are easier understood and addressed with a Miami child support attorney on your side. Schedule a consultation to determine your next best options.