Posted by Nydia Streets of Streets Law in Florida Child Custody
In order to modify a Florida parenting plan, there must be a showing of a material, substantial and unanticipated change in circumstances which was not contemplated at the time of entry of the original plan. A court has less discretion in modifying a parenting plan than it does in initially creating one. In the case Miller v. Miller, 5D19-558 (Fla. 5th DCA August 21, 2020), the former husband appealed a final judgment modifying a child custody order and child support.
The parties entered an extensive parenting plan which provided for equal time-sharing between them, despite the former husband being stationed in California and the former wife living in Florida. The parties agreed that when the parties’ oldest child reached school age, the parties would revisit the parenting plan with the aim of maintaining equal time-sharing. The parties also agreed that no child support would be paid since both were fully self-supporting and with both spending equal time with the children, the children would be adequately supported.
The former husband later petitioned to modify the parenting plan, alleging that he was assigned to duty in Japan and that the children should live with him during the school year but be permitted to visit with the former wife during school breaks. The former wife then counter-petitioned for the children to live with her in Florida and she alleged there was an “oversight” in the final judgment where no child support was required to be paid. After a hearing, the trial court issued an order that substantially changed the parties’ parenting plan and ordered the former husband to pay child support. The court also denied the former husband’s request for attorney’s fees, reasoning much of the litigation was caused by his focus on the child support issue. The former husband appealed.
The appellate court held the trial court was within its right to modify certain portions of the parenting plan, but not others. Those issues which were included in the parties’ respective petitions could be modified by the court. But the court abused its discretion when it changed parts of the parenting plan which were not requested by the parties, according to the appellate court. As to child support, the appellate court reversed, holding “The court’s new parenting plan maintained equal, long-distance time-sharing, despite the change of rotation schedule. Although the court found the revised rotation schedule warranted an award of child support, there was no testimony that the longer period of time shared by each parent would result in a financial burden to either parent. There also was no testimony that the overseas assignment would create a financial change of circumstances for the parties or that the changes naturally occurring as children ‘grow older’ was something unanticipated by the parties. Nor did the court find that there was a significant disparity between the parties’ incomes that occurred since the original agreement. Accordingly, because Mother failed to prove a substantial change in circumstance, we reverse that portion of the Supplemental Final Judgment that modified the child support provision.”
Regarding the former husband’s attorney’s fee request, the appellate court held “In denying Father’s request for attorney’s fees, the court made extensive findings, many of which were predicated upon the award of child support. Based upon our reversal of the award of child support and reversal of the portion of the new parenting plan that omitted the attorney’s fees provision, we reverse the court’s decision to deny fees and remand for reconsideration in light of this opinion.”
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