author: GROSS, J.

text:
    Danielle FORGIONE, as the Personal Representative of the Estate of Anthony Forgione, Appellant, v. Deborah Ann FORGIONE, Appellee.
    No. 4D01-4392.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Kenneth A. Gordon, Juliette E. Lipp-man, Roberta G. Stanley, and Thomas R. Tatum of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Fort Lauderdale, for appellant.
    Jeanne C. Brady of Brady & Brady, P.A., Boca Raton, and Steven M. Pesso of Steven M. Pesso, P.A., Boca Raton, for appellee.
   GROSS, J.

Deborah Forgione and Anthony For-gione were married on March 8, 1975. A final judgment of dissolution was entered on March 22, 2001. The judgment observed that the “Husband has serious health problems.” The husband died the next day. As the personal representative of her father’s estate, Danielle Forgione timely appealed the final judgment.

The estate challenges the provision in the final judgment requiring the husband to maintain a life insurance policy with a minimum death benefit of $1,000,000.00 naming the wife as beneficiary, to secure the alimony award.

Section 61.08(3) provides that “[t]o the extent necessary to protect an award of alimony, the court may order any party who is ordered to pay alimony to purchase or maintain a fife insurance policy or a bond, or to otherwise secure such alimony award with any other assets which may be suitable for that purpose.” § 61.08(3), Fla. Stat. (2001); see also Sobelman v. Sobelman, 541 So.2d 1153, 1154 (Fla.1989) (allowing trial court to order a spouse to maintain a life insurance policy for the protection of the other spouse’s support, even in the absence of any arrearage).

An order requiring a spouse to maintain a life insurance policy to secure alimony “is justified only if there is a demonstrated need to protect the alimony recipient.” Moorehead v. Moorehead, 745 So.2d 549, 552 (Fla. 4th DCA 1999) (quoting Privett v. Privett, 535 So.2d 663, 665 (Fla. 4th DCA 1988)). Generally, a trial judge “should” make a finding of need before entering an order requiring the maintenance of a life insurance policy. Id. (citing Hedendal v. Hedendal, 695 So.2d 391, 392 (Fla. 4th DCA 1997)); see also Israel v. Israel, 824 So.2d 953, 953-54 (Fla. 4th DCA 2002) (requiring reversal and remand where trial court failed to make findings of the need to secure child support and alimony payments, the amount of insurance needed to secure these payments, and the cost of such insurance). Further, the estate is correct that “[i]n the absence of special circumstances, a spouse cannot be required to maintain life insurance for the purposes of securing support obligations.” Baker v. Baker, 763 So.2d 493, 494-95 (Fla. 4th DCA 2000).

Substantial competent evidence in the record supports the conclusion that the wife had the need to protect the alimony award and that there was a special circumstance warranting that the husband maintain a policy to secure the alimony. See Moorehead, 745 So.2d at 552 (noting appellate court, in the absence of written findings, can still look to the record to see if there is sufficient evidence demonstrating the need for life insurance to secure alimony); Hedendal, 695 So.2d at 392 (finding that appellate court can look to either trial court’s order or to the record to see if there is a demonstrated need to protect the alimony recipient with life insurance).

Concerning the wife’s need, she was of limited employability. She worked for her husband’s business throughout the marriage. She was forty-eight years old, and without a college education. The trial court found that the wife could earn $20,000 annually and that her monthly expenses of $5,262 were reasonable. She had few other assets. The alimony was necessary to enable the wife to maintain her reasonable standard of living. Thus, her need for the policy is supported by the trial court’s findings of fact, notwithstanding the absence of specific findings in the final judgment regarding the need for life insurance.

Likewise, at the time of the final judgment, the husband was scheduled for open heart surgery within the week. Given the husband’s serious health problems, the wife demonstrated a special circumstance to require the husband to maintain life insurance on her behalf. See, e.g., Sobelman, 541 So.2d at 1154 n. 1 (citing with approval to previous cases requiring husband to purchase life insurance to secure alimony where wives were in ill health and unable to obtain employment); Edwards v. Edwards, 730 So.2d 711 (Fla. 4th DCA 1999) (wife suffering from chronic back problems and multiple sclerosis-type symptoms was entitled to be beneficiary of husband’s life insurance policy); Richardson v. Richardson, 722 So.2d 280, 281-82 (Fla. 5th DCA 1998) (trial court erred in refusing to require husband to secure alimony with life insurance, where wife would be left with only $400 per month without the alimony award); Sasnett v. Sasnett, 679 So.2d 1265, 1268-69 (Fla. 2d DCA 1996) (alimony-paying husband’s sudden demise would “seriously jeopardize the wife’s well-being, both financially and healthwise”).

We agree with the estate that a deficiency in the final judgment requires reversal. When requiring an ex-spouse to maintain or obtain a life insurance policy, the trial court must consider the cost and financial impact on the paying spouse. Thus, in Knight v. Knight, 746 So.2d 1117 (Fla. 4th DCA 1999), a judgment required a husband to maintain a life insurance policy to secure child support. Id. at 1120. The husband was fifty years old and had recently undergone open heart and back surgery; whether he could “secure affordable life insurance [was] questionable.” Id. In reversing, we noted that the trial court had failed to ascertain the availability and cost of life insurance. Id. at 1117; see also Guerin v. DiRoma, 819 So.2d 968, 969-70 (Fla. 4th DCA 2002) (trial court failed to make the requisite findings to justify ordering husband to secure life insurance, where there was insufficient evidence presented regarding husband’s in-surability or what the cost of insurance would be); Cozier v. Cozier, 819 So.2d 834, 837 (Fla. 2d DCA 2002) (reversing requirement that husband maintain life insurance policy where there was no evidence of the cost of such a policy or whether the husband could afford it); Lopez v. Lopez, 780 So.2d 164, 165 (Fla. 2d DCA 2001) (noting that “there may be an insurability question” because the husband had an artificial heart valve previously inserted); Zimmerman v. Zimmerman, 755 So.2d 730 (Fla. 1st DCA 2000) (record fails to contain any evidence regarding cost and availability of life insurance policy and the financial impact of award on the paying spouse).

Given the state of the husband’s health at the time of the final judgment, nothing in the record demonstrates the availability or cost of life insurance to secure the alimony award.

This reversal is without prejudice to further proceedings. A short time after the final judgment, the wife filed a motion for relief from the final judgment. One basis for the motion was that the husband fraudulently misrepresented his ownership interest in existing life insurance policies. The final judgment is filled with findings that the husband had been untruthful and deceptive throughout the course of the parties’ separation and litigation. Whether the husband misrepresented his interest in insurance policies during the dissolution is the type of factor the court may consider on remand.

Reversed and remanded.

KLEIN and TAYLOR, JJ. concur.


source: Caselaw Access Project

author: POLEN, C.J.

license: Public Domain

text:
    Tara HOUSTON and the State of Florida Department of Revenue, Appellants, v. Louis A. MAGLIO, Appellee.
    No. 4D02-2022.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for appellants.
    No brief filed for appellee.
   POLEN, C.J.

Tara Houston and the Florida Department of Revenue (“DOR”), acting on her behalf, have timely appealed an order dismissing a petition seeking entry of a child support order under the Uniform Interstate Family Support Act (“UIFSA”). We hold this was error, and reverse and remand for the trial court to reinstate the UIFSA petition.

A paternity judgment was entered on March 7, 1995 declaring Louis Maglio to be the legal and natural father of Houston’s child, D.H., born in February of 1994. Maglio has lived in Florida at all relevant times. Although Maglio was ordered to pay the DOR back child support for expenditures made on Houston’s behalf, the paternity judgment did not order any prospective child support since Houston was not present at the final hearing to request it. Sometime thereafter, Houston turned up in Michigan with D.H. On May 23,1996, a default final judgment for child support of $115 a week was entered against Maglio by the Circuit Court of Genesee County, Michigan. Houston then returned to Florida, and in 1997 she filed a petition in the Palm Beach Circuit Court to register the Michigan support order in Florida, pursuant to UIFSA. § 88.6021, Fla. Stat. (1997). Maglio objected on the grounds the Michigan court had lacked personal jurisdiction over him to enter its support order. The court agreed and Houston’s petition to register the Michigan order was denied. § 88.6071(l)(a), Fla. Stat. (1998).

Armed with this order denying registration of the Michigan child support, Mag-lio’s local counsel contacted the Genesee County Friend of Court Child Support Unit and requested the reimbursement of $3,645.46 that had been garnished from his wages and withheld from his federal income tax refund. The Genesee County Support Unit responded that the Michigan order was still in effect, and that Maglio could challenge the validity of that order by petitioning the Genesee County court. As of November 7, 2001, Genessee County calculated Maglio’s support arrearages as $42,764.07.

Houston and D.H. next sought support in Nevada. She contacted the Nevada child support agency, and in July of 2001, Nevada forwarded a UIFSA petition to the Florida DOR, requesting they establish a child support order for D.H. by modifying the 1995 Florida paternity judgment. The DOR responded accordingly and filed a UIFSA petition requesting Florida establish a child support order by modifying the original paternity judgment. See §§ 88.3041, 88.3051, Fla. Stat. (2002). Maglio moved to dismiss this petition alleging, in pertinent part, that Houston should be estopped from seeking another support order for D.H. while the Michigan order was still in force. The court ultimately ruled in Maglio’s favor, holding the DOR was barred from moving on its petition until the Michigan “problem” was cleared up. The instant petition was dismissed and the DOR and Houston were granted leave to re-file once the Michigan support order was vacated and set aside. We hold this was in error.

Since none of the parties (Houston, D.H., Maglio) currently reside in Michigan, Michigan lacks “continuing exclusive jurisdiction” over its previously entered child support order. § 552.1224(l)(a), Mich. Stat. (2002); § 88.2051(4), Fla. Stat. (2002). Since Michigan lacks “continuing exclusive jurisdiction,” Florida, the obligor’s home state, has jurisdiction to enter a child support order, and Florida’s order, once entered, will be deemed the controlling order. §§ 88.2051(l)(a) 88.2071(2)(c), Fla. Stat. (2002). The previously entered Michigan support order should not act as a bar to the entry of a support order in Florida, since Florida has jurisdiction over the obligor, and “continuing exclusive jurisdiction” to enter a support order. See generally Patricia W. Hatamyar, Interstate Establishment, Enforcement, and Modification of Child Support Orders, 25 OK-CULR 511, 561 (2000).

Once a Florida support order is entered, either party may request that Florida enter an order determining which support order controls, and a certified copy of that order may be filed with Michigan. § 88.2071(3)-(6). Any amounts paid under the Michigan order while the Florida order is in force must be credited against the Florida obligation. § 88.2091, Fla. Stat. (2002). If Maglio seeks to challenge entry of the Michigan order and his obligations under said order, he must bring that challenge in the Michigan courts. See Barr v. Barr, 749 A.2d 992 (Pa.Super.Ct.2000).

The order dismissing the UIFSA petition is therefore reversed, and the petition to establish a Florida support order for the benefit of D.H. is reinstated. The case is remanded for further proceedings.

REVERSED and REMANDED.

KLEIN and GROSS, JJ., concur.

      . Florida and Michigan's UIFSA statutes mirror one another. As part of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, the federal government required all states to enact UIFSA by January 1, 1998. See 42 U.S.C. § 666(f) (1996).

      . Florida’s jurisdiction arises from the fact the obligor, Maglio, currently resides in Florida (and Michigan lacks "continuing exclusive jurisdiction”). The proper vehicle for the establishment of a Florida child support order is an original UIFSA petition, not a petition to modify the 1995 paternity judgment (which did not award child support, or reserve jurisdiction to do such). To dismiss Houston’s and DOR's petition because it was incorrectly labeled a "Petition to Modify,” however, is to elevate form over substance. There is no due process deprivation as to Maglio. As such, the reinstated UIFSA petition shall be treated as an original petition to establish child support. Since the instant petition was filed after July 1, 1998, back support is only recoverable for a period up to twenty-four (24) months preceding the filing of said petition.
        See Horn v. Fla, Dep't of Revenue ex rel. Abel, 752 So.2d 687 (Fla. 3d DCA 2000); § 61.30(17), Fla. Stat. (2002).


text:
    A.J., The Mother, and O.G., The Father, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D02-2396, 4D02-3115.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Kathleen K. Peña of Law Offices of Seiler & Sautter, Fort Lauderdale, for appellant-A.J., The Mother.
    Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant-O.G., The Father.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laurel R. Wiley, Assistant Attorney General, Fort Lauderdale, for appellee.
   GROSS, J.

After the parents attended many hearings in their dependency case, the trial court entered a default and consent order against them when they were about twenty-five minutes late for the commencement of the third day of trial. We reverse.

On December 11, 2001, the Department of Children and Families (“Department”) filed an amended petition for dependency against the mother and father. On December 18, with both parents and their attorneys present, the trial court granted the parents’ motion to continue the case. The order stated that “[t]he parents have been advised their appearance at trial is required[;] if they fail to show a consent will be entered against them.” The trial court orally advised the parents that the case was reset to February 20, 2002, at 2:00 p.m., and that their appearance was required for trial.

On January 3, 15, 25, February 7, 20, and March 7, 18, 2002, the trial court held shelter review hearings, ordering that the minor child remain in the shelter care of the Department.

An order set the trial for April 16, 2002 at 2:00 p.m. Though the mother and her counsel, and the father’s counsel were present at this hearing, the father was not. A separate February 20 order granted the father’s motion to continue and rescheduled the trial for April 16, 2002. At the March 7 shelter hearing, the trial court orally notified both parents that the trial would commence on April 16 and that their failure to appear would result in a default consent being entered on their behalf. Both parents confirmed that they knew the time and place of the trial.

On April 1, 2002, the parents were present in court, without their counsel. The trial court ordered the parents to submit to an immediate drug test, noting that each parents’ visitation would be suspended until they received a negative drug test. The trial court required each parent’s counsel to provide a written explanation to the court as to why they were not present at the hearing. On April 4, the trial court vacated its previous order suspending visitation, substituting new counsel for each parent.

The trial began on April 16, 2002, with both parents and their separate counsel present. The trial was not completed and was continued to May 14, 2002 at 10:00 a.m.

On May 14, with both parents and their counsel present, the trial continued. After hearing further testimony, the trial court continued the case to May 16, 2002, at 1:40 p.m.

On May 16, the parents failed to appear at the scheduled time for trial. The Department asked that a consent default be entered against the parents. The parents’ lawyers responded that they were prepared to go forward in the case, in spite of the parents’ absence. The mother’s counsel reminded the court that the parents took public transportation from Miami. The father’s lawyer observed that the Department’s case would only take about an hour more to complete.

The trial judge stated that at the March 7 hearing she advised appellants that a failure to appear for trial would result in a default. The court noted that it was 2:04 p.m., and that the bailiff had “sounded in the hallway” twice to see if the parents were present. After finding that both parents had faked to appear, the court entered a default against them. In its written order later that day, the judge stated that the father arrived twenty-five minutes late for the trial.

The mother moved to set aside the default on May 20. The father later joined in the motion. The motion argued that although the trial court reminded her on December 18, 2001 and March 7, 2002 that she needed to personally appear at trial, she was not advised of this on May 14, 2002. She contended that the applicable statute did not require the parent to be personally present for every day of the trial, that the father arrived “immediately after the Court concluded the proceeding” on May 16, and the mother arrived “shortly thereafter.” The motion also stated that there was no reason to enter the default because a “considerable amount of the trial had already been completed,” and counsel was capable of proceeding without her presence.

The trial court denied the parents’ motion, finding that the parents’ failure to appear constituted a consent to a dependency adjudication pursuant to section 39.506(8), Florida Statutes (2001) and Florida Rule of Juvenile Procedure 8.330(c). Based on the default, the court entered a dependency order.

Section 39.506(3) and Rule 8.330(c) state in pertinent part:

If a person appears for the arraignment hearing and the court orders that person to personally appear at the adjudicatory hearing for dependency, stating the date, time, and place of the adjudicatory hearing, then that person’s failure to appear for the scheduled adjudicatory hearing constitutes consent to a dependency adjudication.

We reject the parents’ contention that the court failed to adequately notify the parents pursuant to the statute and rule. The parents had sufficient notice of the date, time, and place of the continued adjudicatory hearing and they had at least twice been advised of the consequences of failing to appear.

However, we hold that the trial court abused its discretion in failing to set aside the default. The purpose of a default provision such as that in section 39.506(3) is to ensure that the object of the dependency petition “is not defeated by the parent’s neglect of the proceeding.” J.B. v. Fla. Dep’t of Children & Family Servs., 768 So.2d 1060, 1067 (Fla.2000) (quoting J.B. v. Dep’t of Children & Family Servs., 734 So.2d 498, 501 (Fla. 1st DCA 1999) (discussing section 39.462(1)(a), Florida Statutes (1995) which involves termination of parental rights)). Section 39.506(3) “enables the trial court” to bring a dependency case “to conclusion even if the parent has chosen not to participate.” Id. The purpose of the statute is not to inject “gotcha” practices into the dependency process.

Here, both parents had chosen to participate in the dependency proceeding. They attended numerous hearings in the case. They were both present at a hearing which their lawyers missed. They attended the first two days of trial. On May 16, their lawyers offered to complete the trial in their clients’ absence. Under these circumstances, it was an abuse of discretion to decide this case not on the merits, but by way of a default.

Reversed and remanded.

KLEIN and TAYLOR, JJ., concur.


author: PER CURIAM.

text:
    Robert Stanley PLIMPTON, Appellant, v. OLD DIXIE STORAGE, INC., et al., Appellee.
    No. 4D02-5135.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.
    Robert Stanley Plimpton, Roseville, CA, pro se.
    Barbara J. Scheffer, Palm Beach Gardens, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).

GUNTHER, KLEIN and MAY, JJ., concur.


text:
    Stacey Renee CHAPMAN, Appellant, v. Norman Mitchell PREVATT, Appellee.
    No. 4D02-2635.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Troy W. Klein of Troy W. Klein, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   GROSS, J.

In this case, the circuit court allowed a mother to relocate to Colorado with her school-aged children, but imposed a custody arrangement where the children would switch back and forth from Colorado to Florida. Nothing in the record demonstrates that such a rotating custody arrangement is in the best interest of the children. We reverse.

Stacy Chapman and Norman Prevatt were divorced by a final judgment dated June 30, 1998. The parties have two minor children, Brooke, born November 17, 1991, and John, born March 30, 1994. At the time of the final judgment, the mother and the father lived in Okeechobee, Florida.

On March 20, 2000, the mother filed a petition for modification seeking to change the visitation schedule because she was living and working in Palm Beach County. On November 13, 2000 the father filed a counter petition for modification; he sought primary residential custody of the children, contending that the mother had failed to comply with the requirement of shared parenting and that she had denied him visitation.

On July 13, 2001, the mother filed an amended petition for modification requesting that she be allowed to relocate to Colorado with the children, following her remarriage on April 7, 2001. Her new husband was on active duty with the Air Force and was transferred to Colorado Springs.

A one-day trial occurred on August 8, 2001.

The mother acknowledged that the parties had agreed that the father would have visitation on Tuesdays and Thursdays, and every other weekend. She moved to West Palm Beach in late 1999, without the father’s consent, because she had a good job opportunity. She enrolled the children in school in West Palm Beach in August, 2000, also against the father’s wishes. After that time, the mother drove the children to and from Okeechobee to visit their father.

The mother testified that her new husband expected to be stationed in Colorado Springs for three years. The mother described various opportunities available for the children in Colorado, such as the Rocky Mountains, mountain waterfalls, a YMCA on the Air Force base, after-school programs and field trips, snow boarding and skiing, and college and professional sports teams. The mother believed that the children would benefit from these diverse opportunities, which were not available in Okeechobee.

If allowed to relocate with the children, the mother planned to enroll in a community college near the military base, where tuition was offered at a 50% reduction for military spouses. She intended to take a year-long EKG and ultrasound program, expecting that her current pay would jump from $10 to $25 an hour.

After the mother moved with the children to West Palm Beach, she conceded that it was too difficult for the children to stay with their father during the week, because their school was over an hour away from Okeechobee. The children instead stayed with their father on alternate weekends.

The mother proposed a different visitation schedule if her relocation request were granted: to fly the children back to their father for holidays and school vacations, to provide for e-mail with visual camera communication, to give the father six weeks of summer visitation and an extended Christmas vacation, and to be flexible in allowing the children to travel and see their father at other times during the year.

The father testified that when his children were living in Okeechobee, they were with him every Tuesday and Thursday, and alternating weekends. The children were actively involved in the father’s church most of the year. The father felt his relationship with his children would suffer if the children moved to Colorado, just as the relationship had suffered when the children moved to West Palm Beach. Once the children switched schools, the father was not as actively involved with their school and homework. The father made the decision to end the weekday/overnight visitation after trying the arrangement for a few weeks and realizing the travel was too burdensome on the children. He offered no testimony that he had ever visited his children on any weekdays since they moved to West Palm Beach and the twice-weekly overnight visitation had ended.

In the final judgment, the trial judge found that the move to Colorado would be likely to improve the general quality of life for the mother and her children (when they are living with her), that the mother’s financial situation would greatly improve, and that there are a number of military benefits she and the children would enjoy. The court did not believe the quality of activities for the children available in Colorado supported relocation. The judge determined that the mother’s relocation was not for the express purpose of defeating the father’s visitation, given that her new husband was transferred to Colorado.

The trial court was concerned that neither parent would follow orders regarding visitation. The judge found that the mother has the financial resources to handle the costs of transportation to ensure that the children would have meaningful contact with the father if the relocation were granted.

The trial court ruled that there had been a substantial change in circumstances since dissolution; both parties had remarried [the father had remarried in August 2001, remaining in Okeechobee County], with the mother’s new husband being stationed in Colorado and both parents were “totally incapable of being able to communicate with each other in a meaningful way that is best for these children.” The court concluded that it was in the best interests of the children to modify the custodial arrangement.

The trial court’s order of modification held that it was “in the minor children’s best interests for the parties to rotate primary residence of the minor children on an annual basis.” (emphasis added). The court set a schedule:

1) For the 2001-02 school year, the children would reside with the mother out-of-state;
2) For the 2002-03 and 2003-04 school years, the children would reside with the father;
3) For the 2004-05 and 2005-06 school years, the children would reside with the mother;
4) For the 2006-07 school year, the children would reside with the father;
5) For the 2007-08 and 2008-09 school years, the children would reside with the mother;
6) For the final three years of high school, each child would be with their respective gender parent.

The non-residential parent would have the children for the Christmas and Easter school vacations, with an extended summer visitation only in the middle of the two-year rotation block, and with telephone or video Internet connection every Sunday afternoon and Tuesday evening. The residential parent was required to send a monthly one-page report to the other parent detailing the children’s school performance, extracurricular activities, and any medical problems or doctor visits.

Under the modification order, if a residential parent failed to comply with the order requiring the delivery of the children for visitation or a custody change, the penalty to be assessed was a “consecutive forfeiture” of the next two visitations to which the non-residential parent was entitled. The trial court also held that such penalties would be “stacked,” so that each time the residential parent failed to comply, the parent would lose two visitation periods for each violation; the court explained that a parent “might lose your visitation [and] might not see your children for two or three years under that pattern.” (Emphasis added).

The modifications to the original final judgment were to remain in effect as long as the parties were more than sixty miles apart; if the distance between the parties became less, then the parties would return to the terms of the initial mediation agreement.

The mother moved for rehearing. She argued that neither party had requested rotating residential custody; had she known that such an arrangement were at issue, she would have produced an expert to testify against it. For the first time, the mother suggested a proposed relocation visitation schedule, giving the father one weekend each month, or any long weekend of every month, with eight weeks of summer visitation, pursuant to the Model Parenting Time Sharing Schedule for Palm Beach County.

The trial judge denied the motion for rehearing. His order added findings that he had inadvertently omitted from the original modification order. He observed that the relationship between the parties had greatly deteriorated after the final judgment of dissolution; that there was continued hostility between the parties after the dissolution; that the parties were incapable of communicating with each other in a meaningful way that was in the best interests of their children; and that the interaction between the parties in the past confirmed the need to change custody and visitation.

Responding to the mother’s contention that the trial court lacked the authority to impose a rotating custodial arrangement when neither party had requested such relief, the trial court stated that because the father had sought modification of primary residential custody, the court had subject matter jurisdiction to “decide with which parent the children should reside.” The trial court also noted that section 61.121, Florida Statutes (2000), gave it authority to enter the rotating custody arrangement.

Addressing the rotating custody arrangement, the trial court wrote:

The Court in the case at bar specifically determined that given the level of hostile attitude between these parents, coupled with the distance the parents will now live apart, custody should be rotated in a manner that will assure the children have meaningful day-to-day relationships with both parents as they grow up. The rotation plan formulated by the Court was designated to lessen disruption in the children’s lives by rotating custody on two year cycles at the end of a school year, and allow each child to be with the same sex parent in the later teen years.

The trial court abused its discretion in granting a modification of the mother’s status as the primary custodial parent. It is well-settled that a trial court may not modify custody or visitation “unless the party moving for such modification demonstrates: (1) a substantial or material change in the circumstances of the parties since the entry of the custody and visitation order; and (2) that the welfare of the child will be promoted by a change in custody and visitation.” Knipe v. Knipe, 840 So.2d 335, 339-40 (Fla. 4th DCA 2003) (citation omitted).

That parents do not get along with one another is not a substantial or material change in circumstances which, without more, justifies a change of custody. See Zediker v. Zediker, 444 So.2d 1034, 1036 (Fla. 1st DCA 1984) (noting that the “inability of two otherwise intelligent and rational adults to communicate before, during or after visitation” did not amount to a substantial or material change of circumstances “which would justify a change of custody”) (emphasis in original); see also Newsom v. Newsom, 759 So.2d 718, 719-20 (Fla. 2d DCA 2000) (reversing trial court’s modification of custody, despite “acrimonious relationship” between parents, as mother had demonstrated consistent attempt at co-parenting); cf. Knipe, 840 So.2d at 340 (affirming trial court’s decision to increase visitation for non-residential parent where the parents’ “gross misbehavior” and inability to communicate had detrimentally harmed the children).

Here, there was no evidence that the children were being harmed by the parents’ treatment of each other. Testimony from both parents indicated the children were doing well in school, were involved in extracurricular activities, and were not exhibiting any signs of distress from their parents’ behavior that would be atypical for two young children whose parents had been separated since they were toddlers.

The final judgment does not specify how the mother’s actions were harmful to the children. Without such findings, there is no record support for the trial court’s determination of a substantial change of circumstances sufficient to justify a change in residential custody. The mother’s desire to relocate to Colorado, in the absence of other compelling circumstances, does not in and of itself support a change of custody. See Perez v. Perez, 767 So.2d 513, 517-18 (Fla. 3d DCA 2000).

It is the rotating custody arrangement that is most problematic. Section 61.121 states that “[t]he court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.”

However, case law has established that rotating custody is presumptively not in the best interest of children. See Mancuso v. Mancuso, 789 So.2d 1249, 1249-50 (Fla. 4th DCA 2001); Hosein v. Hosein, 785 So.2d 703, 704 (Fla. 4th DCA 2001); Bracken v. Bracken, 704 So.2d 746, 747 (Fla. 4th DCA 1998); MacConnell v. Cascante, 668 So.2d 668, 670 (Fla. 4th DCA 1996); Caraballo v. Hernandez, 623 So.2d 563, 564 (Fla. 4th DCA 1993). Nothing in section 61.121 detracts from the longstanding presumption frowning upon a rotating custody arrangement. See Mancuso, 789 So.2d at 1250; Mandell v. Mandell, 741 So.2d 617, 618 (Fla. 2d DCA 1999).

This court has recognized that there are “special” or “appropriate” circumstances that may justify rotating custody. See Caraballo, 623 So.2d at 564; Bracken, 704 So.2d at 747. Such circumstances include: (1) the child’s age and maturity; (2) whether the child is in school; (3) the proximity of the parents’ residences; (4) the child’s preferences; (5) the disruptive effect of the rotation on the child; (6) the reasonableness of the periods of time spent with each parent; (7) the relation of the periods of custody to divisions in the child’s life, such as the school year; and (8) the parents’ attitude toward each other, and how their attitudes might affect and be perceived by the children. Hosein, 785 So.2d at 704.

This is not just a case of rotating custody; it is one of geographical rotating custody, until the children reach the age of eighteen. A review of the ease law establishes that in balancing what is in the best interest of a child, the child’s need for stability and continuity generally outweighs a parent’s interest in a schedule that provides for temporal equality in visitation. Courts have recognized that a child’s school can be a source of stability amidst the uncertainty of a divorce.

For example, this court in Caraballo reversed a rotating custody arrangement, where the parents lived three miles from each other, but in different school districts. We observed that “[rjequiring an eight year old child to switch schools yearly is clearly a disruptive influence indicating that rotating physical custody is not in the best interests of the child.” 623 So.2d at 564; see also Pfeifer v. Pfeifer, 616 So.2d 1190, 1191 (Fla. 4th DCA 1993) (affirming rotating custody arrangement permitting each parent to have custody of child a portion of each week where both parents continued to reside in the same neighborhood after separation); Wilking v. Reiford, 582 So.2d 717, 719 (Fla. 5th DCA 1991) (reversing a yearly rotating custody arrangement where the parents lived in two different school districts, as it was not in the best interests of the child to be forced to switch schools, make new friends and readjust to a different curriculum at a different school); cf. Bracken, 704 So.2d at 747-48 (affirming a rotating custody arrangement until child reaches school age); Parker v. Parker, 553 So.2d 309, 311 (Fla. 1st DCA 1989) (allowing court to rotate custody until the child reached school age); Alexander v. Alexander, 473 So.2d 236, 237 (Fla. 2d DCA 1985) (same); Gerscovich v. Gerscovich, 406 So.2d 1150, 1153 (Fla. 5th DCA 1981) (affirming rotating custody arrangement where the “community is the same; schools are the same; friends no doubt may remain substantially the same; and visitation rights are not hampered by the change”).

The trial court imposed the rotating custody arrangement without the benefit of any expert testimony, and without the services of a guardian ad litem. Cf. Mandell, 741 So.2d at 617 (affirming rotating custody plan where trial court relied on expert’s testimony); Alexander, 473 So.2d at 237 (concluding that special circumstances required for rotating custody were established by expert testimony). The parties presented no testimony that the children would benefit from the arrangement the court imposed. Neither party even requested it. Without any evidence demonstrating how the children would adjust to the rotating custody, there is no way for a court to evaluate whether there may be “special circumstances” that justify the arrangement.

Upon remand, the trial court shall consider the mother’s relocation request in accordance with section 61.13(2)(d), Florida Statutes (2001). This section “imposes

an intensely fact specific framework on the relocation decision, where the trial judge may base a decision on what is best for the child.... ” Kuntz v. Kuntz, 780 So.2d 1022, 1023 (Fla. 4th DCA 2001) (quoting Flint v. Fortson, 744 So.2d 1217, 1218 (Fla. 4th DCA 1999)).

Because it may arise on remand, we also address the trial court’s remedy of forfeiting visitations to sanction a parent’s failure to comply with the visitation schedule. The court’s order imposes the sanction of lost visitations. The problem with such an automatic penalty is that “it may, in the absence of a finding that such a change is in the best interest of the children, penalize the children for the parent’s contumacious conduct.” LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1133 (Fla. 2d DCA 1999). See Pace v. Solomon, 715 So.2d 1155 (Fla. 5th DCA 1998) (holding that a transfer of custody as punishment is not an appropriate sanction for contempt); Moody v. Moody, 721 So.2d 731, 733 (Fla. 1st DCA 1998). Taking away visitations as a punishment is very different from awarding “make-up or additional visitation” to “redress the wrong to [a] parent and to effectuate compliance with the court’s authority.” LaLoggia-VonHegel, 732 So.2d at 1133.

Reversed and remanded.

POLEN, C.J., and KLEIN J., concur.

      . Section 61.121 was enacted in 1997. See Ch. 97-242, § 2, at 4436-37, Laws of Fla.

      . See In re Marriage of Oros, 256 Ill.App.3d 167, 194 Ill.Dec. 604, 627 N.E.2d 1246, 1249 (1994) (reversing a joint custody order in which a young child was rotated every three months between his parents' residences in different cities; the court noted the confusion and emotional problems experienced by this young child during the three years he had been "subjected to a merry-go-round of changing preschools, doctors, playmates, households and environments”); Knutson v. Knutson, 639 N.W.2d 495, 502 (N.D.2002) (noting that "[i]t is not generally in the best interest of a child to be bandied back and forth between parents in a rotating physical custody arrangement”).


text:
    Mark VAILLANCOURT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-1307.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Charles G. White of Sachs, Augspurger, White & Assoc., Boca Raton, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Mark Vaillancourt brought a motion to set aside sentence pursuant to Florida Rule of Criminal Procedure 3.850. Vail-lancourt alleged his no contest pleas to misdemeanor counts of assault and battery were the result of misadvice from his counsel regarding deportation consequences and that he did not understand the negative consequences of his plea. Vaillancourt claims he was suffering from a lack of mental acuity at the time because he was undergoing medical treatment and was on medication for a brain tumor that was excised approximately six months earlier. The trial court summarily denied the motion without requiring a state response.

The motion was filed beyond the two-year time limitation set forth by Fla. R.Crim. P. 3.850(b). The rule provides an exception for newly discovered facts that could not have been learned through due diligence. Fla. R.Crim. P. 3.850(b)(1). In this case, the previously unknown fact would be the deportation consequences. Vaillancourt’s motion fails to expressly allege that he is faced with deportation or any immigration consequences and why this could not have been discovered through due diligence. Similarly, the motion does not allege what misadvice he received from his attorney. Prejudice resulting from counsel’s alleged misadvice is not demonstrated.

The trial court did not err in summarily denying the motion as it is facially insufficient. Fla. R.Crim. P. 3.850(d). The order denying the motion is affirmed, without prejudice to Vaillancourt filing a legally sufficient motion. Perez v. Moore, 767 So.2d 1170 (Fla.2000); Mendez v. State, 805 So.2d 905 (Fla. 2d DCA 2001).

POLEN, C.J., STONE and MAY, JJ., concur.


author: KLEIN, J.

text:
    STATE of Florida, Appellant, v. Samuel L. GRANT, Appellee.
    No. 4D02-379.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellant.
    William J. Cone, Jr., Ft. Lauderdale, for appellee.
   KLEIN, J.

The trial court granted defendant’s motion to suppress, and the state appeals, arguing that the officer, who saw the defendant drop a glass pipe, had reasonable suspicion to believe the pipe was used to smoke crack. We reverse.

The officer testified that he was walking in a narcotics area, at night, near an abandoned building. He observed the defendant behind a wall, with a lighter in one hand and a glass pipe in the other. When the defendant saw the officer, who had turned on his flashlight, he dropped the pipe. After a backup arrived, the officer retrieved the glass pipe, which contained cocaine. He testified at the suppression hearing that he had seen hundreds of crack pipes and that he recognized this as such as soon as he observed the defendant.

We agree with the state that, applying the law to these facts, the officer had reasonable suspicion that defendant was committing a crime. § 901.151, Fla. Stat. (2001); C.A.M. v. State, 819 So.2d 807, 808-09 (Fla. 4th DCA 2002)(determination of reasonable suspicion is based on totality of circumstances and is reviewed de novo). We therefore reverse.

SHAHOOD and GROSS, JJ., concur.


text:
    Michael G. HARRIS and Tammy Harris, Appellants, v. CHASE MANHATTAN BANK USA, N.A., Appellee.
    No. 1D03-1268.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Michael G. Harris and Tammy Harris, appellants, pro se.
    David J. Tong of Salem Saxon, P.A., Tampa, for appellee.
   PER CURIAM.

DISMISSED. See Allen v. Live Oak Ford Mercury, 647 So.2d 1060 (Fla. 1st DCA 1994).

ALLEN, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Raymond F. LAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4473.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant has made a facially sufficient claim that his youthful offender sentence is illegal, we reverse.

The appellant was found guilty of violating probation that was imposed after he successfully completed youthful offender boot camp, and he was sentenced to 69.6 months’ imprisonment followed by 5 years’ probation. The appellant filed a rule 3.800(a) motion alleging that his sentence is illegal under section 958.04(2)(b), Florida Statutes. The plain language of section 958.04(2)(b), Florida Statutes, states that a youth may only receive up to 364 days in a specified facility as a penalty for violating probation imposed after successful completion of boot camp. Thomas v. State, 825 So.2d 1032, 1033 (Fla. 1st DCA 2002). Because the appellant’s sentence exceeds the 364 days permitted by the statute, we reverse the trial court’s summary denial of the appellant’s motion and remand for re-sentencing.

REVERSED and REMANDED.

BENTON, PADOVANO and BROWNING, JJ„ concur.


author: ALLEN, C.J.

text:
    Ronald GASPARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-2931.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Nancy A. Daniels, Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

ALLEN, C.J.

The appellant has filed a motion for rehearing in which he points out that his conviction for aggravated stalking after entry of a domestic violence injunction was the basis for revocation of his probation in two other cases (lower court case numbers 00-29 and 00-72). We see no basis for altering our original opinion in this case. However, in light of our original opinion, we agree with the appellant that the sentences imposed in the referenced lower court cases must be vacated. We therefore grant the appellant’s motion for rehearing to provide this additional relief. Although the probation violation affidavits contained allegations that the appellant committed numerous violations, the trial court considered only the appellant’s conviction for aggravated stalking after entry of a domestic violence injunction in revoking his probations. Accordingly, the sentences imposed upon revocation of probation are vacated, but the appellee is not precluded from seeking revocation of the appellant’s probations based upon other grounds alleged in the affidavits.

BENTON and HAWKES, JJ., concur.


author: VAN NORTWICK, J. SMITH, Senior Judge,

text:
    Charles WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3955.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Nancy A. Daniels, Public Defender, and Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.

      Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Charles Williams appeals his judgment of conviction and sentence for sale or delivery of cocaine within 1000 feet of a child care facility, a violation of section 893.13(l)(c)l, Florida Statutes (2000). We reverse that portion of the sentence in which the trial court imposed a lump sum of costs without further explanation, and remand for further proceedings. We otherwise affirm the conviction and sentence.

With regard to the conviction, appellant has raised several issues, but only one merits discussion. At trial, appellant moved for a judgment of acquittal, arguing that the sign located in front of the child care facility in question was insufficient under the applicable statute to warrant a conviction. Section 893.13(l)(e)l provides that it is unlawful to sell, manufacture, or deliver a controlled substance in, on or within 1000 feet of the real property comprising a child care facility. This statute further provides:

This paragraph does not apply to a child care facility unless the owner or operator of the facility posts a sign that is not less than 2 square feet in size with a word legend identifying the facility as a licensed child care facility in a conspicuous place where the sign is reasonably visible to the public.

Id.

Appellant has not argued that the facility in question was not a licensed child care facility or that the facility’s sign was of an insufficient size or was located in an inconspicuous place. Appellant argued below and argues on appeal that the wording of the sign did not meet the statutory requirement that the facility have a sign with “a word legend identifying the facility as a licensed child care facility.”

The sign at issue included a drawing of a child and contained text that read:
Episcopal Children’s Services Inc.
PECK
HEAD START CENTER
904-261-9010 LIC# 043777

The trial court summarily denied appellant’s motion for a judgment of acquittal, as noted, and appellant timely renewed that motion, which was again denied. The appellant did not request a jury instruction regarding the language used on the sign; and the trial court did not specifically instruct the jury to consider the language employed on the sign. Appellant did not object to the instructions.

A motion for a judgment of acquittal is designed to test the legal sufficiency of the evidence. Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001)(en banc). Therefore,

[W]hen a defendant moves for a judgment of acquittal at the close of the State’s case, the only issue is whether the State has presented sufficient evidence to establish a prima facie case. In viewing the State’s evidence, all reasonable inferences of that evidence are drawn in favor of the State

Leonard v. State, 731 So.2d 712, 717 n. 2 (Fla. 2d DCA 1999)(citing Williams v. State, 511 So.2d 740 (Fla. 5th DCA 1987)).

Below, evidence was introduced as to the location, size, and wording of the sign. We do not read the statute as requiring the sign to include specific “magic words.” Rather, the statute requires that language of the sign must be sufficient to place a reasonable person on notice that the facility is a licensed child care facility. Because sufficient evidence was introduced to establish a prima facie case, the trial court properly denied the motion for a judgment of acquittal. The evidence presented a question of fact for the jury as to whether the wording of the sign adequately identified the facility as a licensed childcare facility. Compare McGuire v. State, 738 So.2d 427, 428 (Fla. 4th DCA 1999)(holding that trial court properly denied defendant’s motion for judgment of acquittal on the charge of leaving the scene of an accident because there was a factual dispute as to whether the victim in the accident was “in condition to receive the information” within the meaning of section 316.062(2), Florida Statutes, such as the defendant’s driver’s license number, thus requiring the defendant to report the accident to law enforcement).

Below, the appellant failed to preserve any error as to the jury instructions and, on appeal, did not argue that the instructions were improper and constituted fundamental error, see Reed v. State, 837 So.2d 366 (Fla.2002), until his reply brief. Because appellant failed to raise these issues in the initial brief, we cannot consider them. See Medrano v. State, 795 So.2d 1009, 1010 (Fla. 4th DCA 2001).

In the sentence imposed, the trial court ordered appellant to pay costs in the amount of $376. This lump sum amount was orally pronounced without any further specificity as to the nature of the particular fees constituting that lump sum or the authority for imposition of such fees. This was error. See Smiley v. State, 704 So.2d 191 (Fla. 1st DCA 1997); Fisher v. State, 697 So.2d 1291 (Fla. 1st DCA 1997); Bradshaw v. State, 638 So.2d 1024 (Fla. 1st DCA 1994). On remand, the trial court shall give the appellant an opportunity to be heard regarding the imposition of any costs which are discretionary. See Rhodes v. State, 683 So.2d 640 (Fla. 1st DCA 1996). Accordingly, we strike the assessment of costs and remand for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

POLSTON, J., concurs, SMITH, LARRY G., Senior Judge, concurs in part and dissents in part.

SMITH, Senior Judge,

dissenting in part and concurring in part.

I agree that the assessment of lump sum costs must be stricken for the reasons explained by the majority. I further agree that the only issue meriting discussion with regard to appellant’s conviction is the denial of appellant’s motion for a judgment of acquittal. However, I cannot agree that the trial court did not err in denying the motion for a judgment of acquittal.

There was no dispute below as to the wording of the sign or whether a sign was, in fact, in place. Had a dispute as to such issues existed below, then a factual question would have been presented for the jury to resolve. However, because there was no dispute as to the existence or the nature of the sign, a question of law was presented to the trial court as to whether the sign complied with the statutory requirement that it contain a “word legend identifying the facility as a licensed child care facility in a conspicuous place .... ” § 813.13(l)(e)l., Fla. Stat. (2000); compare Curry v. State, 811 So.2d 736 (Fla. 4th DCA 2002)(in reviewing denial of a motion for a judgment of acquittal, court was required to determine whether the defendant’s conduct, which was not in dispute, constituted a violation of the aggravated stalking statute, a question of law). That is, the motion for a judgment of acquittal presented a question of law as to whether the evidence regarding the wording of the sign was sufficient to support a conviction. See Jones v. State, 790 So.2d 1194, 1197 (Fla. 1st DCA 2001)(en banc) (“The sufficiency of the evidence to support a particular criminal charge, whether evaluated by the trial court or by an appellate court, is a question of law.”). Because the evidence was not sufficient, the trial court erred in submitting the ease to the jury. When called to construe a statute, the court must first consider the language of that statute, and if the language is unambiguous, it must be regarded as conclusive, absent a clearly expressed contrary legislative intent. Burris v. State, 825 So.2d 1034, 1036 (Fla. 5th DCA 2002), citing Russello v. United States, 464 U.S. 16, 20, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983). Also, as required by section 775.021(1), Florida Statutes (2000), a strict construction must be accorded a penal statute, and when the language of the statute is susceptible of more than one construction, it is to be construed in a manner favorable to the accused. The supreme court has explained:

One of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter. This principle ultimately rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited. Words and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.

Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991) (citations omitted).

) Employing a strict construction, it must be concluded that the sign does not meet the requirement of section 813.13(l)(e)l that it identify the facility in question as a “child care facility.” The words “HEAD START CENTER” do not unambiguously mean that a child care facility is being operated at that location. “Head Start” is a federally funded program which provides “comprehensive health, educational, nutritional, social and other services to economically disadvantaged children and their families.” 42 U.S.C. § 9832(1). As a program which offers a diversity of services, even a person with some knowledge as to the nature of “Head Start” programs would not necessarily know, by virtue of the sign at issue in this case, that a child care facility was being operated on the premises. Nor does the reference to “Episcopal Children’s Services Inc.” indicate, in a literal sense, that a child care facility is in operation. The reference to “Children’s Services” denotes a myriad of possible activities and services, and thus, such a reference by itself, or in conjunction with other language on the sign, fails to specifically identify the structure as a licensed child care facility as required by section 813.13(l)(c)l. That the sign has a small symbolic depiction of a child is immaterial since the statute requires a “word legend” identifying the facility as a child care facility.

Accordingly, I must dissent from that portion of the majority’s opinion which affirms the denial of the motion for a judgment of acquittal. In all other respects, I agree with the majority’s decision.

      . The trial court instructed the jury, in pertinent part, as follows:
      Certain drugs and chemical substances are by law known as controlled substances. Cocaine is a controlled substance. Before you can find the defendant guilty of sale and/or delivery of cocaine within 1000 feet of a childcare facility, the state must prove
      the following four elements beyond a reasonable doubt:
      One, Charles Eugene Williams sold or delivered a certain substance: two, the substance was cocaine; three, the substance was sold and/or delivered in, on, or within 1000 feet of a childcare facility; and four, the substance was sold between the hours of 6:00 a.m. and 12:00 a.m.


text:
    Allen H. MOSS, Appellant, v. Enoch G. TOOLE, as Trustee of the Choctawhatchee Corp. Trust, Appellee.
    No. 1D02-633.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Thomas M. Ervin, Jr., of Ervin, Boyd & Allaman, Tallahassee; and Thayer M. Marts, Marianna, Attorneys for Appellant.
    Jeffrey P. Whitton, Panama City, Attorney for Appellee.
   PER CURIAM.

This is an appeal of a Final Judgment concerning obligations of the parties to a Mortgage and Mortgage Note in the amount of $150,000.00. We hold that the trial court erred in finding that Appellant defaulted for failing to sign the requested releases. Appellee unilaterally withheld money from his August 1997 payment to Appellant, which was not authorized by the Mortgage or the Note. Appellant is entitled to past unpaid mortgage payments, along with accrued interest.

The trial court also erred in finding that Lot 8 should not be credited against Ap-pellee’s allowable releases. Lot 8, Block C was included in the Mortgage, and Appellant should be allowed credit therefor when that property is released.

REVERSED and REMANDED.

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D02-385, 1D02-414, 1D02-416.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Anthony Williams, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, Attorneys for Appel-lee.
   PER CURIAM.

We reverse the trial court’s summary denial of Appellant’s Rule 3.850 motion for additional jail credit. The State concedes that the trial court failed to attach any documentation to support the denial. Therefore, we remand for the trial court to attach portions of the record that conclusively refute Appellant’s claims or for further proceedings. See Melton v. State, 827 So.2d 358 (Fla. 1st DCA 2002).

REVERSED and REMANDED.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    G.S., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0053.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    Louis 0. Frost, Jr., Public Defender, and Ian T. Weldon, Assistant Public Defender, Jacksonville, for petitioner.
    Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the final disposition order rendered on or about October 14, 2002, in Duval County Circuit Court case number 02-5565 CJA, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel, the trial court shall appoint counsel to represent him on appeal.

ALLEN, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Paul KENDRICK, Appellant, v. Janie E. KENDRICK, Appellee.
    No. 1D03-1185.
    District Court of Appeal of Florida, First District.
    May 23, 2003.
    E. Jane Brehany, Pensacola, for Appellant.
    Sherry F. Chancellor, Pensacola, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 14, 2003, the Court has determined that the order on appeal is not final. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, WOLF, and DAVIS, JJ., concur.


author: ORFINGER, J.

text:
    Otelia T. CISSEL, Appellant/Cross-Appellee, v. Stephen R. CISSEL, Appellee/Cross-Appellant.
    Nos. 5D02-2409, 5D02-3567.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Otelia T. Cissel, Ponte Vedra Beach, Pro Se.
    Borden R. Hallowes, Ponte Vedra Beach, for Appellant/Cross-Appellee.
    Stephen R. Cissel, Ponte Vedra Beach, Pro Se.
   ORFINGER, J.

The former wife, Otelia T. Cissel, and the former husband, Stephen R. Cissel, appeal and cross-appeal the final judgment terminating their marriage. The parties contend that the trial judge erred on virtually every issue raised in this contentious litigation. We disagree and conclude that the trial judge ably sorted through the complex and hotly disputed issues arising from the long-term marital and business partnership of the parties. However, having carefully reviewed the record, we do find three matters requiring further consideration by the trial court.

First, the former wife argues that the trial court erred in awarding her only $2,000 per month permanent periodic alimony. We agree. The parties were married for more than twenty years, during the course of which two children were born, a seventeen-year-old son and a nine-year-old daughter, both of whom reside with the former wife. The parties had no significant marital assets. The trial judge found that the former husband’s income was $182,600 per year. The trial court imputed income of $24,000 per year to the former wife. Both figures are supported by competent, substantial evidence. After considering the factors set forth in section 61.08(2), Florida Statutes (2002), the trial court determined that the former wife was entitled to receive permanent periodic alimony. We agree with that determination. However, taking into consideration all of the relevant factors, we conclude that the amount of permanent periodic alimony awarded is so inadequate as to constitute an abuse of discretion. Thrift v. Thrift, 632 So.2d 202 (Fla. 1st DCA 1994). On the record before us, there is no dispute about the fact that the former wife’s reasonable needs are considerably greater than can be met by the amount of alimony awarded, even after considering the $2,000 gross monthly income imputed to her. Likewise, there can be little dispute that the former husband has the ability to contribute more than the amount awarded. Accordingly, on remand, the trial court shall reconsider the alimony award and award the former wife a greater amount commensurate with the former wife’s needs, and the former husband’s ability to pay. This will, of necessity, require that the amount of child support to be contributed by each party be recalculated.

Next, as part of the equitable distribution of the marital property, the court allowed the former husband to retain the marital furniture valued at $15,000. As an offset, the court awarded the former wife their membership in the Ponte Vedra Inn and Club, valued at $14,000. However, the trial court’s reconciliation of its distribution of marital assets failed to take into account its earlier award of the furniture to the former husband. Instead, the final judgment provided:

11. Equitable Distribution:
A. The Wife shall be entitled to receive the following assets free and clear from any claim by the Husband:
1. BMW automobile $20,000.00
2. Ponte Vedra membership $14,000.00
$36,000.00
B. The Husband shall be entitled to received the following assets free and clear from any claim by the Wife:
1. Toyota Forerunner $ 0.00
2. Harbor Club Timeshare $ 6,000.00
3. Escrow Funds $ 2,000.00
4. Marital Monies deposited in Prudential Account $ 3,500.00
$11,500.00
The Court finds the above unequal distribution to the Wife equitably reimburses the Wife for various monies which have been transferred out of the Husband’s bank accounts, both business and personal.

While it is clear that the court intended an unequal distribution to the former wife, it is not clear if the court intended that the former wife receive $24,500 more than the former husband as the final judgment reflects (excluding consideration of the furniture), or $9,500 more than the former husband (including the furniture). On remand, the trial court shall clarify this ambiguity and make such adjustments, if any, as are necessary to accomplish the court’s plan of equitable distribution.

The parties also dispute the trial court’s requirement that the former husband maintain a $500,000 life insurance policy. The former wife contends that the amount is insufficient to secure the former husband’s child support and alimony obligations, while the former husband contends that life insurance is both unnecessary and unaffordable.

The final judgment requires the former husband to maintain life insurance so long as he is obliged to pay “child support and alimony to the Wife on behalf of the minor child” in order to “secure the Husband’s child support obligation.” While the trial court’s reference to alimony appears to us to be erroneous, given the wording of the remainder of the paragraph, the amount of insurance required far exceeds what would be necessary to secure only the former husband’s child support obligation. Based on the amount of insurance required, it is unclear to us whether the trial court considered life insurance as security for the former husband’s alimony obligation in addition to his child support obligation.

Section 61.08(3), Florida Statutes (2002), authorizes the trial court to order the obligor to maintain a life insurance policy as security for an alimony obligation in appropriate circumstances. Similarly, “to the extent necessary to protect an award of child support, the court may order the obligor to purchase or maintain a life insurance policy or a bond, or to otherwise secure the child support award with any other assets which may be suitable for that purpose.” § 61.13(l)(c), Fla. Stat. (2002). As the statutes require, the circumstances must demonstrate the necessity for such protection. Thus, the trial court must make appropriate findings regarding the necessity for insurance protection. Guerin v. DiRoma, 819 So.2d 968, 970 (Fla. 4th DCA 2002). In doing so, the court should consider the cost and availability of the insurance, as well as the financial impact on the obligor. O’Connor v. O’Connor, 782 So.2d 502, 505 (Fla. 2d DCA 2001).

In the instant case, the trial court failed to make any findings necessary to justify requiring the former husband to maintain a life insurance policy. On remand, the trial court must determine whether appropriate circumstances exist to justify requiring the former husband to maintain life insurance, and, if so, whether such insurance is to secure child support, alimony or both, and whether the former husband can obtain and afford such insurance. In all other respects, we affirm the final judgment.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

SHARP, W. and PALMER, JJ„ concur.

      . The final judgment granted the former wife’s request that her maiden name be restored. The former wife is now known as Otelia Teate.

      . We also observe that certain assets are valued differently in different sections of the final judgment. Specifically, we note that paragraph O of the final judgment values the former wife's BMW at $25,000 while paragraph 11 values the same automobile at $20,000. Similarly, paragraph O values the parties timeshare at $6,600 while paragraph 11 values it at $6,000. Finally, paragraph O found that the Mony Mutual Fund, valued at $250, was a marital asset subject to equitable distribution, but the final judgment does not provide for its disposition. On remand, these matters should be corrected.

      . Specifically, as to life insurance, the final judgment provided:
      8. Life Insurance as Security for Child Support: As security for the Husband's child support obligation the Husband shall maintain a life insurance policy having a death benefit of $500,000.00. The Husband shall maintain said insurance for so long as the Husband has continuing obligation to pay child support and alimony to the Wife on behalf of the minor child. Said life insurance benefits may be decreasing in term provided that the death benefit is sufficient to secure the Husband’s child support obligation. Within thirty (30) days from the entry of this Final Judgment and annually thereafter, the Husband shall provide proof to the Wife that said policy is in full force and effect. The minor child ... shall be named as primary beneficiary on said insurance policy.
      (emphasis added).


author: PLEUS, J.

text:
    Dowite JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2120.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Robert I. Barrar of The Law Offices of Ellis Rubin and Robert I. Barrar, Miami, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, J.

The underlying facts in this appeal demonstrate how fatally dangerous a drug deal can be.

Dowite James, Altimond Haughton and Shawn Fagon went to the apartment of Steve Nichols to sell Jonathan Bernard drugs. They proceeded to rob Nichols and Bernard using guns. Bernard wrestled Haughton’s gun away and shot Haughton dead.

James was charged with second degree felony murder, robbery with a firearm and aggravated battery with a firearm. The jury convicted him of manslaughter.

Several issues are raised on appeal which are without merit. We write, however, to illustrate how important it is to preserve error on the record in a clear manner.

During the charge conference, the state requested an instruction on manslaughter which was given. James argues on appeal that manslaughter is not a lesser included offense of second degree felony murder and thus the trial court erred by giving the instruction.

No objection was made at trial by the defense to the state-requested instruction on manslaughter. At the charge conference, when the prosecutor asked if manslaughter was acceptable as a lesser included offense, James’ attorney responded, “I’m not requesting that.” This statement was not sufficient to preserve the issue for appellate review under Florida Rule of Criminal Procedure 3.390(d), which provides:

No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.

James argues, without citation to authority, that even if the error was not preserved, it was fundamental. We disagree. In Ray v. State, 403 So.2d 956 (Fla.1981), the defendant was charged with sexual battery. The trial judge instructed the jury on that charge, but also instructed the jury without objection on the offense of lewd and lascivious act. The jury convicted the defendant of lewd and lascivious act. Ray filed post-trial motions alleging he was improperly convicted of a crime not charged. The trial court denied these motions and the district court affirmed the conviction.

The supreme court accepted conflict jurisdiction and framed the issue as follows:

Whether a defendant convicted of a crime for which he was not charged, but which was submitted to the jury as a lesser included offense when in fact it was not, may challenge that conviction when he failed to object to the submission of that crime to the jury.

Id. at 958. The court first determined that the crime of a lewd and lascivious act was not a permissible lesser included offense of sexual battery, noting that both were second degree felonies. Id. at 959. The court then reviewed the conflict among the districts over whether such error was fundamental. The court concluded as follows:

We hold, therefore, that it is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.

Id. at 961. Applying this test, the court found that neither condition had been met, presumably because the offenses were the same degree and there was no showing of waiver. Accordingly, the supreme court quashed the district court opinion.

This court followed the Ray test in Torrence v. State, 440 So.2d 392 (Fla. 5th DCA 1983) (en banc). In Torrence, the defendant was charged with attempted robbery while carrying a firearm. The trial court instructed on that crime but also instructed the jury, without objection, on what it believed to be the lesser included offense of aggravated assault (by use of a firearm). Torrence was convicted of aggravated assault. On appeal, he argued that aggravated assault was not a lesser included offense and that he was therefore convicted of a crime not charged. This court agreed that aggravated assault by the use of a firearm was not a lesser included offense of attempted robbery while carrying a firearm. However, this court strictly applied the Ray test and found that the error was not fundamental because “he had opportunities to object on the record to the erroneous instruction as well as the verdict form and failed to do so and aggravated assault is lesser in degree and penalty than attempted robbery.” 440 So.2d at 394.

In Torrence, this court italicized the word “or” in the Ray test to emphasize that the elements of that test were listed in the alternative, not the conjunctive. The analysis proves this point as well; once this court found the first part of the test satisfied, it stopped there and concluded that the error was not fundamental. James failed to object to the instruction on manslaughter, which is a second degree felony, a crime lesser in degree and punishment than second degree felony murder, a first degree felony. See §§ 782.04(3) and 782.07(1), Fla. Stat. Under Ray, it is not necessary to reach the second part of the test to determine whether James “requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.”

AFFIRMED.

MONACO and TORPY, JJ., concur.

      . More recently, we applied the Ray test in Nesbitt v. State, 819 So.2d 993 (Fla. 5th DCA 2002), rev. granted, 837 So.2d 411 (Fla.2003). In Nesbitt, we concluded that the defendant’s conviction on an impermissible lesser offense was not preserved for appeal because he failed to object to the instruction on that offense, nor was the error fundamental. However, we noted conflict on this issue with Levesque v. State, 778 So.2d 1049 (Fla. 4th DCA 2001) and Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000), which hold that this type of error is fundamental. The supreme court granted review and the issue is currently pending before it.


author: THOMPSON, C.J.

text:
    SIHLE INSURANCE GROUP, INC., Appellant, v. RIGHT WAY HAULING, INC., Appellee.
    No. 5D01-3327.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.

      Donald L. O’Dell of Meier, Lengauer, Bonner, Muszynski & Doyle, P.A., Orlando, for Appellant.
    Randy E. Schimmelpfennig of Billings, Cunningham, Morgan & Boatwright, P.A., Orlando, for Appellee.
   THOMPSON, C.J.

SIHLE Insurance Company (“SIHLE”) appeals the trial court’s award of damages for lost profits to Right Way Hauling, Inc. (“Right Way”) contending that Right Way’s expert did not have the necessary qualifications to offer opinions concerning lost profits and that the evidence of lost profits was too speculative. We find no abuse of discretion in allowing Right Way’s expert to testify, but we reverse the lost profits award and remand the case for a new trial on damages.

Right Way was a business that manufactured mulch, and in 1999, it purchased a power screen that produced various sizes of mulch and sorted the products according to size in a single grinding. There was testimony that Right Way was the only business in central Florida with a power screen, and its business was thriving because it could produce mulch at a faster rate with the power screen. Upon purchasing the power screen, Right Way contacted its insurance agent, SIHLE, and requested that the power screen be added to its insurance policy, which was issued by Century Surety Company (“Century”). On 29 July 1999, the power screen was destroyed in a fire. Century denied Right Way coverage for the loss of the power screen because it determined that the power screen was never added to the policy. Allegedly, the Century policy was never changed to add the power screen because SIHLE’s agent failed to follow up on the coverage change. Right Way claimed that without insurance coverage, it was unable to replace the power screen, and was therefore unable to produce the quantity and quality of mulch it had produced with the power screen. Right Way eventually sold its business.

Right Way sued SIHLE for negligence and breach of contract for failing to obtain the insurance coverage for the power screen. The jury found that SIHLE had breached its contract and was negligent in failing to procure insurance on Right Way’s behalf. The jury awarded Right Way $90,000 for the loss of the power screen and $256,000 in damages for lost profits.

SIHLE first contends that the trial court erred by failing to grant SIHLE’s motion for directed verdict because Right Way’s expert was not qualified to testify about lost profits. A trial court has broad discretion in determining the subject upon which an expert may testify in a particular trial. County of Volusia v. Kemp, 764 So.2d 770 (Fla. 5th DCA 2000) (citing Angrand v. Key, 657 So.2d 1146 (Fla.1995)). Florida Rule of Civil Procedure 1.390 defines an “expert witness” as:

[A] person duly and regularly engaged in the practice of a profession who holds a professional degree from a university or college and has had special professional training and experience, or one possessed of special knowledge or skill about the subject upon which called to testify.

Further, section 90.702, Florida Statutes, provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion....

In the instant case, we cannot say that the trial court abused its discretion by allowing the witness to offer his opinion regarding the amount of Right Way’s lost profits. A witness may testify as an expert if he is qualified to do so by reason of knowledge obtained in his occupation or business. Weese v. Pinellas County, 668 So.2d 221 (Fla. 2d DCA 1996). The expert witness testified that he was a public adjuster who prepared appraisals and negotiated settlements for property owners who had experienced loses. He testified that he was qualified to act as an accountant anywhere in Europe. The witness had lectured on business interruption and lost profits and had published articles on the subject. He had been appointed as an expert twice in federal court to appraise losses and had been found qualified in Florida state courts to testify as an expert witness regarding lost profits. While there was no evidence that the expert witness had an accounting degree, a person does not necessarily have to have a degree in order to qualify as an expert. A person can be qualified to testify as an expert witness if the witness possesses special knowledge, experience or skill in the subject upon which the witness is called to testify. Fla. R. Civ. P. 1.390; § 90.702, Fla. Stat.

SIHLE also contends that Right Way’s evidence of lost profits was too speculative to support an award for damages. We agree that the evidence of lost profits was speculative. First, the expert witness based Right Way’s lost profits in part on projected sales to Florida Mulch, one of Right Way’s customers. He relied on a letter Florida Mulch had written indi-eating that Right Way was to produce five to six loads of mulch per day, but Florida Mulch clarified at trial that the letter should have read five to six loads per week. The expert witness admitted that this would affect the overall projected revenue by one-fifth. Florida Mulch also testified that although it had business arrangements with Right Way, Right Way was not rehable because it did not timely provide its product to Florida Mulch. Also, in calculating the value of Right Way’s agreement with Florida Mulch, the expert witness used the price of $12 per yard when the price range was $5-$12 per yard.

Second, the expert witness testified that while his calculations indicated that Right Way could make a $151,000 per month profit, he did not believe that Right Way would make that much per month immediately or even a year later. Actually, Right Way had been averaging only $30,000 per month before the fire, and the expert witness admitted that Right Way would have to increase its production by 250 percent to achieve its maximum capacity. Third, Right Way admitted that Right Way’s tax returns never indicated a profit. In most cases, an award of lost profits requires a history of past profits over a reasonable time. Travelers Insurance Co. v. Wells, 633 So.2d 457 (Fla. 5th DCA 1993). Fourth, there had been testimony at trial that the price for mulch had decreased, and the expert witness testified that had the current price for mulch decreased, then Right Way’s revenue would decrease.

Finally, the expert witness should have deducted amounts for salaries when calculating net profit. State Dep’t of Transp. v. Manoli, 645 So.2d 1093 (Fla. 4th DCA 1994). The expert witness testified that he did not calculate the owner’s salary because Right Way’s owner did not pay himself a standard salary; he would withdraw money depending on Right Way’s earnings. However, the expert witness was required to deduct a salary from the net profit. In Manoli, the court stated:

We recognize that in businesses like this one, the working owner’s salary is not necessarily commensurate with the value of the owner’s services. Here [the appellee] could have paid himself low wages, increasing his paper profit, or vice versa. Accordingly, on retrial, the reasonable value of [the appellee’s] services, i.e., what he would have had to pay in the marketplace to get someone else to perform those services, will be admissible.

Id. at 1094.

Lost profits must be proven with reasonable certainty and be a natural consequence of the wrong. Brevard County Fair Ass’n, Inc. v. Cocoa Expo, Inc., 832 So.2d 147 (Fla. 5th DCA 2002); Forest’s Mens Shop v. Schmidt, 536 So.2d 334, 336 (Fla. 4th DCA 1988). In the instant case, Right Way’s calculations for lost profits were based on a series of assumptions which considered together, demonstrate the speculative nature of the award. Compare Lucas Truck Service Co. v. Hargrove, 443 So.2d 260 (Fla. 1st DCA 1983). The lost profits damages awarded to Right Way were speculative because Right Way’s expert relied upon a series of assumptions: that Right Way would increase production by 250%; that Florida Mulch would pay the maximum price of $12 per yard and buy five or six loads daily; and that Right Way would not experience the same price decline that other mulch businesses had experienced. Moreover, the expert witness failed to deduct the owner’s salaries from the profits.

Despite the expert witness’ testimony that Right Way’s lost profits amounted to $648,000, the jury awarded Right Way only $256,000 for lost profits. We cannot affirm the judgment based on the jury’s apparent rejection of some of the expert witness’ testimony, however, because the fact remains that the expert witness failed to account for salaries and engaged in unwarranted speculation. See Manoli, 645 So.2d at 1094 n. 1 (declining to affirm the judgment on the basis that the jury verdict may have reflected a salary deduction because the expert erroneously testified that the officer’s salary did not need to be deducted). Accordingly, the judgment is reversed, and the case is remanded for a new trial on damages. To recover lost profits, Right Way must provide competent evidence sufficient to satisfy the mind of a prudent, impartial person as to the amount of lost profits resulting from the destruction of the power screen. Sostchin v. Doll Enterprises, Inc., 2003 WL 1916687 (Fla. 3d DCA April 23, 2003).

AFFIRMED in part; REVERSED and REMANDED in part.

SHARP, W. and SAWAYA, JJ., concur.

      . SIHLE is not contesting the jury's findings that it was negligent and breached its contract, or the $90,000 award for the loss of the power screen; it is contesting the $256,000 jury award for lost profits.


author: SHARP, W„ J.

text:
    Jarratt G. BENNETT, etc., et al., Appellants/Cross-Appellees, v. Susan MORALES, n/k/a Susan Howell, et al., Appellee/Cross-Appellants.
    Nos. 5D01-2444, 5D02-685, 5D02-687.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Rehearing Denied May 27, 2003.

      Stephen M. Masterson, Lisa J. Augspur-ger and Richard Burton Bush, of Bush, Augspurger, & Lynch, P.A., Orlando, for Appellants/Cross-Appellees.
    David H. Simmons and Kenneth P. Ha-zouri of Drage, de Beaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee/Cross-Appellant.
   ON MOTION FOR CLARIFICATION

SHARP, W„ J.

We grant Appellee/Cross-Appellant’s Motion for Clarification and/or Correction of Opinion, withdraw our previous opinion and issue this opinion in its place.

This is an appeal and cross-appeal of final judgments for attorneys fees and costs in which Susan Howell (Howell) was awarded $540,037.72 in attorneys fees and $24,284.27 in costs from IFG Network Securities, Inc. (IFG); and $55,675 in costs from Jarratt G. Bennett (Bennett), after she prevailed in a securities fraud case. We affirm in part, reverse in part, and certify a question of public importance to the Florida Supreme Court.

In April of 1990, Howell recovered $629,000 in a Virginia medical malpractice action based on her doctor’s failure to diagnose an infection, which resulted in her becoming permanently disabled. She invested $580,000 of this money through Bennett, for the purpose of having additional income. Bennett was a registered broker/dealer agent who periodically changed his affiliation with different firms. He eventually became affiliated with IFG. Howell’s account followed Bennett through these various changes, and was eventually transferred to IFG.

In 1997, Howell consulted with a representative from Dean Witter and discovered that the value of her account value had fallen to $350,000. She transferred her account to Dean Witter and sued, inter alia, Bennett and IFG, alleging they had engaged in questionable investing practices, which included overreaching, and Bennett’s repositioning Howell into risky investments that paid large commissions.

The trial court based the attorney fee award on a demand for settlement made by Howell, pursuant to section 768.79 and Florida Rule of Civil Procedure 1.442, and it applied a 2.25 contingency risk multiplier. See Standard Guaranty Ins. Co. v. Quanstrom, 555 So.2d 828 (Fla.1990), modifying, Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985).

Appellants make various challenges to this award. They cite to our holding in Allstate Ins. Co. v. Sarkis, 809 So.2d 6 (Fla. 5th DCA 2001), rev. granted, 826 So.2d 992 (Fla.2002), and raise new questions about interpretation of the factors surrounding the application of the contingency risk multiplier. In Allstate v. Sarkis, we held that a contingency risk multiplier should not be used to compute attorney’s fees in an offer of judgment case. We are bound by that decision. Based on Sarkis, we hold the use of the multiplier in the attorney’s fees award, pursuant to section 768.79, was error, and we decline the parties’ invitation to consider the findings and factors surrounding the imposition of the risk multiplier. However, we re-certify this issue to the Florida Supreme Court for resolution in accordance with its granting review in Allstate v. Sarkis, and conflict with the Fourth District. See Island Hoppers, Ltd. v. Keith, 820 So.2d 967 (Fla. 4th DCA 2002).

Appellants also argue that section 768.79 should not be applied because the parties agreed the substantive law of Virginia applied to this cause and the award of fees is substantive, not procedural. On this point, we agree with Judge Klein’s opinion in BDO Seidman, LLP v. British Car Auctions, Inc., 802 So.2d 366 (Fla. 4th DCA 2001), that section 768.79 applies to all civil actions for damages brought in Florida, even where the substantive law of another jurisdiction is applied.

Appellants make a similar argument about the award of prejudgment interest. They claim it was error for the trial court to determine the award post-trial because the law of Virginia provides that interest is an issue that must be proven by evidence and decided by the jury. This differs from Florida law where the assessment of prejudgment interest is a ministerial act, a mathematical calculation, to be performed by the trial judge after the jury renders its verdict. Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985); Maingate Dev., Inc. v. Lakeview Marketing Group, Inc., 758 So.2d 1290 (Fla. 4th DCA 2000).

This issue was raised at a hearing during the trial, on May 24, 2001, when appel-lees’ counsel told the court that interest was a procedural matter, and cited to Argonaut. Appellants’ counsel did not object, claiming the matter was premature. The trial judge agreed. On July 17, 2001 appellee’s counsel again raised the issue and advised the court that there was a stipulation in the record about it. Appel-lee’s counsel claimed that the transcript did not accurately reflect the tape of the hearing, and had brought a representative of the court reporting company with him to verify that fact. However, the judge remembered the discussion, and said he could state “very definitely” that he would not have proceeded the way he did, had he not thought that the parties agreed that the interest would be awarded after the trial was over, ie., pursuant to Florida law.

We do not reach the issue of whether error occurred because the trial court did not apply the substantive law of Virginia regarding determination of the interest award. The record indicates that counsel failed to object, advised the court the issue was premature, and subsequently stipulated to having the court determine the interest post-trial. A party may not make or invite error and then take advantage of it on appeal. See Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla.2001); Gupton v. Village Key & Saw Shop, Inc., 656 So.2d 475 (Fla.1995).

Furthermore, we note that section 90.202(2), Florida Statutes (2001) provides that Florida courts may take judicial notice of the laws of sister states, and section 90.203 provides that the court must take such notice where the adverse party has been given written notice, and sufficient information has been given to the court. Transportes Aereos Nacionales, S.A. v. De Brenes, 625 So.2d 4 (Fla. 3d DCA 1993). The record is insufficient to show that appellants met the requirements of section 90.203 in this case.

With respect to costs, appellants allege that in making an award of expert witness fees, the trial court erred because it did not follow the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (the “Uniform Guidelines”). The final judgment only sets out the total cost award, and the lack of specificity in the award precludes our review of this matter. Stewart & Stevenson Services, Inc. v. Westchester Fire Ins. Co., 804 So.2d 584, 588 (Fla. 5th DCA 2002). We therefore remand this issue to the trial court so that it can make findings.

Lastly, we reverse and remand on appellants’ claim that the trial court erred in assessing costs against Bennett of $55,675, and against IFG in the sum of $24,184.27, individually. The parties agree that all costs should have been awarded jointly and severally and that the award against IFG should have been $11,986.50 greater.

We therefore reverse the attorney’s fee award to the extent it includes use of a multiplier and certify the issue of the application of the contingency risk multiplier to offer of judgment cases, to the Florida Supreme Court. We affirm the award of prejudgment interest, and reverse and remand on the cost awards.

AFFIRMED in part; REVERSED and REMANDED in part; Question CERTIFIED.

SAWAYA and ORFINGER, JJ., concur.

      . During the pendency of this appeal, the parties settled their disputes on the underlying damage issues.

      . Fla. R.App. P. 9.030(2)(A)(iv) and (v).

      . In doing so, we observe that the Uniform Guidelines contains two sections which pertain to the award of costs for depositions. Section l.E. pertains to depositions in general. Section 2.G. is specifically applicable to depositions of expert witnesses. Section 2.H. provides that no fees should be awarded for depositions that are not used, in whole or in part, at the trial. See also, section 92.231(2), which allows attorneys fees for "[a]ny expert or skilled witness who shall have testified." (emphasis added).


text:
    Dominic C. HART, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-700.
    District Court of Appeal of Florida, Fifth District.
    May 23, 2003.
    Dominic C. Hart, Orlando, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The defendant appeals the summary denial of a Florida Rule of Criminal Procedure 3.850 motion.

The defendant has raised several grounds in his motion. The defendant alleged in his motion that besides his direct appeal, he has filed no prior petitions or motions with respect to this judgment. The trial court, in a form order, denied the defendant’s motion as “successive and legally redundant.” The trial court did not attach any portions of the record to support this order.

The order denying the defendant’s Rule 3.850 motion is insufficient and is reversed. On remand, the trial court is directed to either hold an evidentiary hearing or attach portions of the record refuting the defendant’s claims. See Waters v. State, 612 So.2d 685 (Fla. 5th DCA 1993); see also McCray v. State, 633 So.2d 561 (Fla. 4th DCA 1994) (holding that the state cannot cure an erroneous order by attaching portions of record to support trial court’s denial).

REVERSED and REMANDED with instructions.

SHARP, W„ PETERSON and SAWAYA, JJ., concur.