author: SALARIO, Judge. WALLACE, Judge,

text:
    DEPARTMENT OF REVENUE, Appellant, v. M.J.M. and A.M.R., Appellees.
    Case No. 2D15-3246
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017

      Pamela Jo Bondi, Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tampa; and Carrie R. McNair, Assistant Attorney General, Tallahassee (substituted as counsel of record), for Appellant.

      No appearance for Appellees.
   SALARIO, Judge.

The Department of Revenue appeals from a final order granting MJ.M.’s petition to disestablish paternity pursuant to section 742.18, Florida Statutes (2012). DOR asserts that the order runs afoul of the requirements of that statute because (1) M.J.M.’s petition was not based on newly discovered evidence, (2) M.J.M. did not file the petition within ninety days of a DNA test establishing that he was not the father, and (3) M.J.M. did not prove, and the trial court did not find, that M.J.M. substantially complied with his child support obligations and that any delinquency was attributable to just cause. As we explain below, we find no merit in DOR’s arguments regarding newly discovered evidence and the timeliness of M.J.M/s petition. We agree with DOR, however, that the trial court failed to make legally required findings on the child support issue, and we therefore reverse its order and remand for that purpose.

I.

A.

Section 742.18(1) identifies the “circumstances under which a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child.” The statute regulates both the manner in which a male seeking to disestablish paternity or terminate a support obligation must seek that relief and the findings that a trial court must make to order those remedies. As to the manner in which relief should be sought, the statute provides that the male must file a petition with the trial court that includes the following:

(a)An affidavit executed by the petitioner that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(b) The results of scientific tests that are generally acceptable within the scientific community to show a probability of paternity, administered within 90 days pri- or to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father of the child for whom support is required, or an affidavit executed by the petitioner stating that he did not have access to the child to have scientific testing performed prior to the filing of the petition. A male who suspects he is not the father but does not have access to the child to have scientific testing performed may file a petition requesting the court to order the child to be tested.
(c) An affidavit executed by the petitioner stating that the petitioner is current on all child support payments for the child for whom relief is sought or that he has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

§ 742.18(1). The statute also provides that a court must grant relief upon a finding of several facts, which include the following that are relevant to DOR’s appellate arguments in this case:

(a) Newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation.
(c) The male ordered to pay child support is current on all child support payments for the applicable child or that the male ordered to pay child support has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

§ 742.18(2).

With this brief explanation of the statutory requirements behind us, we turn to the facts of this case.

B.

In May 2005, DOR filed a complaint to establish paternity against M.J.M., who the mother then claimed was the father of M.R. M.J.M. did not serve an answer to that complaint. Nor did he otherwise appear in the action or defend himself in that action. As a result, in August 2005, the trial court entered a final judgment establishing that M.J.M. was M.R.’s father and ordering him to make payments for the support of M.R.

On December 6, 2012, M.J.M. through counsel filed a petition to disestablish paternity pursuant to section 742.18. He named DOR and M.R.’s mother as respondents. The petition alleged that after paternity was established, M.R.’s mother called M.J.M. and admitted, for the first time, that M.R. was not his child. With the mother’s blessing, M.J.M. thereafter took a paternity test in June 2010 which confirmed her admission. The petition alleged that these two things constituted newly discovered evidence and attached the results of the DNA test. M.J.M. further alleged in an affidavit attached to the petition that he was either current on his child support obligation or in substantial compliance with the obligation and that any delinquency in his obligation arose from his inability for just cause to pay it.

DOR filed an answer in which it neither admitted nor denied M.J.M.’s allegations regarding the mother’s admission and the DNA test and asserted no defenses related to either the newly discovered evidence claim or the timeliness of the DNA test. It did, however, contest MJ.M.’s claim that he was in compliance with his child support obligation by stating he owed more than $20,000 in back child support. M.R.’s mother filed an answer in which she stated that she was not contesting the disestablishment of paternity.

The petition was heard over the course of several hearings at which M.J.M. appeared pro se. The trial court asked M.J.M., under oath, a series of questions related both to the issue of paternity and to the issue of child support. In the main, its questions called for short, unelaborated answers. M.J.M. often attempted to explain his answers or other circumstances he thought relevant to his case but was summarily prevented from doing so by the trial court. DOR did not present any evidence and relied solely on the argument of counsel.

As to the alleged newly discovered evidence—the conversation with M.R.’s mother and the DNA test results—M.J.M. testified consistently with the allegations of his petition. He further testified that he and M.R.’s mother were in the middle of a breakup and no longer having sex around the time she became pregnant. For that reason, M.J.M. stated at different points both that he “knew” he was not M.R.’s father and, alternatively, that he “had a feeling” he was not. He explained that he was unable to appear at the hearing on the initial petition to establish paternity because he had been in a car accident. He testified that he hired an attorney in March 2011 to address the paternity issue. The attorney inexplicably failed to file the petition until December 2012.

As to the question of child support, M.J.M. admitted that he was delinquent on those payments, which DOR alleged were $24,000 in arrears. M.J.M. testified that he could not make his payments because he was unemployed and not able to do so. He tried to explain that because of his stated inability to pay support, his driver’s license had been suspended—in fact, he had been jailed for driving on a suspended license— and that his employment prospects had become limited as a result of his inability to drive. The trial court did not, however, permit M.J.M. to offer a complete explanation of his reasons for nonpayment.

DOR argued that the trial court was required to deny the petition under section 742.18 because the evidence was not newly discovered. In its view, M. J.M. knew at the time paternity was established that he was not the father and was obligated to have sought DNA testing at that time. In addition, DOR argued that M.J.M. was barred from seeking disestablishment under the statute because he failed to file his petition within ninety days of the DNA test that he took after M.R.’s mother told him he was not the father. After the trial court stated that it was inclined to disestablish paternity, DOR requested, and the trial court ordered, that M.J.M. submit to a second DNA test. The results showed again that M.J.M. was not M.R.’s father.

After additional hearings, the trial court entered an order disestablishing paternity. It found, in relevant part, that the mother’s admission and DNA test results constituted newly discovered evidence sufficient to justify the disestablishment of paternity and, further, that just cause “may have existed” for MJ.M.’s failure to pay the delinquent child support. Based on these and other findings, the trial court disestablished paternity.

II.

We review the trial court’s findings of the facts necessary to grant relief under section 742.18 for competent substantial evidence, P.G. v. E.W., 75 So.3d 777, 780 n.1 (Fla. 2d DCA 2011), and its interpretation of that statute de novo, Dep’t of Revenue ex rel. T.L.S. v. S.J.W., 113 So.3d 85, 86 (Fla. 2d DCA 2013). DOR asserts that the trial court erred in determining that the mother’s admission and the 2010 DNA test constituted newly discovered evidence under section 742.18(2)(a). It also argues that M.J.M.’s petition is time-barred because it was not brought within ninety days of the 2010 DNA test under 742.18(l)(b). Finally, it asserts that the trial court failed to make the findings required by section 742.18(2)(c). We address each argument in turn.

A.

DOR argues that the mother’s admission and the DNA test results did not amount to newly discovered evidence because M.J.M. knew at the time of the original paternity proceedings that he was not the father. The unambiguous language of the statute, however, precludes this argument. Section 742.18(2)(a) provides for disestablishment of paternity when newly discovered evidence “has come to the petitioner’s knowledge since the initial paternity determination.” Id. (emphasis added); see also § 742.18(l)(a) (requiring petition to include an affidavit showing that newly discovered evidence has come to the petitioner’s knowledge “since the initial paternity determination or establishment of a child support obligation”). Under this clear language, the question is not—as DOR would have it—whether a petitioner ever knew of evidence that he was not the father; the question is instead whether newly discovered evidence came to the petitioner’s knowledge after paternity was established.

This is exactly how our court has interpreted section 742.18. In P.G., the petitioner and the mother had an on-again-off-again relationship during which the mother dated other men. 75 So,3d at 778. After she became pregnant, the petitioner questioned whether he was the father and, when reassured that he was, stated that “he did not care who the father was” and that he wanted to be the father. Id. When the child was bom, the petitioner signed a birth certifícate as the father. After the child developed mental health issues of which the petitioner had no family history, he again questioned whether he was the father. A DNA test showed that he was not, and he filed a petition under section 742.18. Id. The trial court held that the DNA test results were not newly discovered evidence because the petitioner “knew all along there was some chance” the child was not his and denied the petition. Id. at 779.

This court reversed and held that the trial court was “obligated to grant relief’ notwithstanding the petitioner’s reason to believe at the time of the initial determination of paternity that he was not in fact the child’s father. Id. at 781. With respect to whether the DNA test results were newly discovered evidence covered by section 742.18, we reasoned as follows:

DNA test results performed since the initial determination of paternity satisfy the statutory requirement for newly discovered evidence so long as they meet the statute’s other time requirements .... [B]ecause the plain language of the statute only addresses the petitioner’s “knowledge since the initial paternity determination,” see § 742.18(l)(a), (2)(a), any suspicions he may have had prior to that initial establishment of paternity are irrelevant.

Id. at 782 (emphasis added).

In that regard, we certified conflict with the First District’s decision in Hooks v. Quaintance, 71 So.3d 908 (Fla. 1st DCA 2011). In Hooks, the petitioner was aware when paternity was established that there was a fifty-fifty chance the child was not his. When he tried to disestablish paternity years later on the basis of a DNA test, the trial court denied his petition. The First District affirmed and held that the test results were not newly discovered evidence under section 742.18 because, among other things, the petitioner could have had a DNA test done before the initial paternity determination but did not, thus failing to act diligently. Id. at 911-12. It reasoned that the statutory term “newly discovered evidence” was borrowed from Florida Rule of Civil Procedure 1.540(b)(2), which includes a due diligence requirement under which the petitioner would not have been entitled to relief because of his failure to act diligently on the information he had prior to the initial determination of paternity. Id. at 911.

Our reasoning in P.G.—including the conflict of that reasoning with the decision in Hooks—establishes that information in a petitioner’s possession before the paternity determination and his action (or lack thereof)' upon that information is not material to whether he has satisfied sections 742.18(l)(a) and (2)(a). What is relevant is whether new evidence has come to the petitioner’s knowledge since the determination of paternity. P.G., 75 So.3d at 782. That is certainly the case here. After years of maintaining that M.J.M. was the father, the mother confessed to him that he was not. That admission is new evidence. Based on that admission, M.J.M. got a DNA test, the results of which showed that he was not the father. Those test results, too, are new evidence. Both pieces of evidence came to MJ.M.’s knowledge “since the initial paternity determination.” See § 742.18(2)(a). Under our decision in P.G., the requirement of newly discovered evidence has been satisfied.

DOR argues that this case is distinguishable from P.G. because here M.J.M. knew that he was not the father, while the petitioner in P.G. merely suspected that he was not. The problem for DOR is that the trial court made an express finding of fact that conflicts with its argument here; the trial court found that M.J.M. “did not have any actual knowledge that he was not the minor child’s father prior to” the initial paternity determination. If that factual finding is supported by competent substantial evidence, the alleged distinction between this case and P.G. evaporates. DOR has not argued on appeal that this finding is unsupported by competent substantial evidence—indeed, it has not mentioned the finding at all—and it has therefore abandoned any argument as to the sufficiency of the evidence to support it. See Weaver v. Weaver, 95 So.3d 1029, 1030 (Fla. 2d DCA 2012) (deeming issue that was not developed in the argument section of appellant’s brief abandoned).

But even if DOR had raised the issue, it would be unavailing. To be sure, M.J.M. used the word “knew” to describe his understanding that he was not the father. But DOR strips this testimony from its context, M.J.M. also testified only that he “had a feeling” that he was not the father. The basis for both statements was that M.J.M. and the mother were in the middle of a breakup and not having sex at a time that M.J.M. thought would explain her pregnancy. The evidence was thus sufficient for the trial court to find that M.J.M.’s understanding of his paternity was feeling or suspicion rather than confirmed knowledge. Because the difference that DOR posits between P.G. and this case is rendered illusory by the trial court’s supported finding of fact, P.G. is controlling here and compels the conclusion that M.J.M. satisfied the newly discovered evidence requirement.

B.

DOR next contends that MJ.M.’s petition is untimely and therefore time-barred because it was not filed within ninety days of his DNA test results as required by section 742.18(l)(b). This section requires that a petition to disestablish paternity include “[t]he results of scientific tests’... administered within 90 days prior to the filing of such petition, which results indicate that the male ordered to pay such child support cannot be the father.” § 742.18(l)(b) (emphasis added). M.J.M.’s petition was not filed within ninety days of the administration of the paternity test. DOR’s argument is, in essence, that the statute is akin .to a statute of limitation, a statute of repose, or a jurisdictional statute of nonclaim that bars as untimely any petition for disestablishment that is not filed within ninety days of the first DNA test a petitioner takes that shows that the petitioner is not the biological father of the child.

DOR’s argument is inconsistent with the plain language of the statute. By its terms, section 742.18(1) regulates what a petition to disestablish paternity must contain and provides that one thing it must contain is the results of a DNA test administered no more than ninety days before the petition is filed. See also J.C.J. v. Fla. Dep’t. of Revenue ex rel. O.S.B., 80 So.3d 1106, 1108 (Fla. 2d DOA 2012). The statute does not say that if a petition is not filed within ninety days of any DNA test, the petitioner’s right to seek disestablishment of paternity is forever lost. Nor is .that the natural or logical import of a statutory requirement that a petition include the result of a DNA test that is no more than ninety days old.

Had the legislature meant for the statute to function as a statute. of limitations, a statute of repose, or a jurisdictional statute of nonclaim it would and quite easily could have used language that served that function. The statute books are filled with language that does that kind of thing. See, e.g., § 72.011(5), Fla. Stat. (2012) (jurisdictional statute of nonclaim); §§ 95.031(2) (prescribing periods of both limitations and repose), .11 (prescribing periods of limitations), Fla. Stat. (2012). That it chose not to word the statute in a way that effects a time-bar confirms what the plain language of the statute says. See Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So.3d 498, 512-13 (Fla. 2d DCA 2016) (discussing, in the context of limitations and repose, the premise that the legislature knows how to select the language necessary to accomplish a result). It regulates only what a petition to disestablish paternity must contain, i.e., the results of a test completed within the previous ninety days, not whether a petition to disestablish paternity becomes time-barred and lost if not brought within that time. The statute does not require a DNA test accompanying the petition be the first test taken by a petitioner.

DOR relies on Aulet v. Castro, 44 So.3d 140 (Fla. 3d DCA 2010), to reach a contrary conclusion. There, a trial court dismissed a petition because the attached results relied on a test that was more than ninety days old. The petitioner argued that because the existence of a DNA test is not an element of a cause of action for the disestablishment of paternity, the failure of his petition to address the requirements of section 742.18(l)(b) could not serve as the basis for a motion to dismiss. The Third District rejected that argument and held that “the plain language of the statute makes clear that scientific testing is indeed a, mandatory requirement.” Id. at 144. It also stated that “once a man receives the results of a scientific test confirming he is not the father, he must choose to act .on those results within ninety days.” Id. Relying on that language, DOR asserts that section 742.18(l)(b) does effect a time-bar.

The statement upon which DOR relies is dictum. The issue in Aulet was whether á petition that fails to comply with section 742.18(l)(b) may be dismissed on that account, not whether the petitioner’s right to seek disestablishment is substantively time-barred if a petition is not brought within ninety days of the first DNA test a petitioner ever takes. To the extent, however, that Aulet means what it appears to say in dictum to have legal authority, we respectfully disagree. For the-reasons we have stated, the unambiguous language of the statute does not function as the language of limitations, repose, or nonclaim.

That still leaves us with the question of whether MJ.M.’s failure to attach the results of a DNA test that complied with the statute required that the trial court deny the petition at the final hearing as insufficiently pleaded. We believe that it does not because our court has recognized that minor, nonprejudicial variations from the requirements of section 742.18(1) within a petition do not require that the petition be denied at a final hearing. In J.C.J., a putative father filed a petition to disestablish paternity on grounds of newly discovered evidence. 80 So.3d at' 1107. The petition was sworn to by the putative father, who stated that he did not have access to the child to conduct DNA testing. The putative father failed, however, to file an affidavit attesting to that fact as required by the statute. Id at 1109; see also § 742.18(l)(b) (requiring, where no DNA test results are attached, that the petitioner include “an affidavit ... stating that he did not have access'to the child to have scientific testing performed”). After conducting a hearing on the petition, the trial court denied relief because the putative father failed to attach the required affidavit to his ■ petition. We reversed and held that “the pleadings filed in the case provide[d] the functional equivalent of an affidavit” and that “an additional affidavit would not [have] provide[d] any further proof or notice, and accepting the[] pleadings as the equivalent of the statutorily described affidavit d[id] not in any way prejudice the Mother, nor d[id] it impact the effectiveness or intent of the statute.” 80 So.3d at 1109.

Although the deficiency in this case is different from the deficiency in J.C.J., the principle is equally applicable. In this case, although the petition contained test results that were more than ninety days old, at the final hearing DOR requested, and the trial court ordered, a new DNA test, the results of which again established that M.J.M. was not the biological father of M.R. DOR went to the final hearing on notice of the basis of M.J.M.’s claim to disestablish paternity and then asked for and received the functional equivalent of the DNA test results the statute requires in the form of a new DNA test ordered by the trial court. The mere formality of filing an amended petition based on the new test date would add nothing here, especially considering DOR’s agreement to a new test and the fact that it did not even raise the timeliness of M.J.M.’s petition in its written answer to it. Accepting those new DNA test results as the equivalent of the statutorily required DNA test neither caused prejudice to DOR nor undermined the purpose that the text of section 742.18(l)(b) evinces—namely, that a petition to disestablish paternity may be supported by a DNA test that is less than ninety days old. Under J.C.J., then, the trial court did not err in declining to deny the petition on the basis that the DNA test results attached thereto were more than ninety days old.

C.

Finally, DOR alleges that the trial court failed to make statutorily required findings regarding child support and that, at all events, the evidence adduced at the hearings would have been insufficient to support such findings. Section 742.18(2)(c) requires that where a petitioner is not current on child support, a trial court may not disestablish paternity unless it finds that the petitioner has “substantially complied” with his child support obligation and that there is “just cause” for any delinquency.

DOR is correct in that the trial court failed to make any findings as to the status of MJ.M.’s child support payments or as to whether he had substantially complied with his support obligation. It is also correct that the trial court’s just cause finding was ambiguous at best. The trial court found only that “just cause may have existed for [MJ.MJs failure to pay the delinquent child support when it became due.” Thus, the trial court did not actually make any of the findings that section 742.18(2)(c) requires. See Healy v. Healy, 884 So.2d 287, 291 (Fla. 2d DCA 2002) (holding that the trial court’s findings were ambiguous and instructing that it clarify its findings on remand); Peterson v. Jason, 513 So.2d 1351, 1353 (Fla. 1st DCA 1987) (holding that equivocal findings were insufficient to support the termination of parental visitation). We are therefore required to reverse the disestablishment order and remand for reconsideration. See Gotsis v. Gotsis, 813 So.2d 207, 208 (Fla. 2d DCA 2002).

We make no determination as to whether M.J.M, will be able to meet his burden to show substantial compliance or just cause. See All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings, 55 So.3d 670, 672 (Fla. 2d DCA 2011) (“[O]f course, the fact-finding necessary to resolve the issue is beyond our purview.”). In that regard, the procedure by which the evidence was taken compels us to remand to provide M.J.M. with an opportunity to meet that burden. M.J.M. appeared pro se at the hearings, at which time the trial court asked a series of pointed questions, discouraged or precluded any effort by M.J.M. to explain his situation, and left M.J.M. without a genuine opportunity to meet his burden regarding substantial compliance or just cause. On remand, the trial court should conduct a full hearing on these issues. See Dep’t of Revenue ex rel. M.J.W. v. G.A.T., 76 So.3d 1083, 1085 (Fla. 2d DCA 2011) (remanding for an evidentia-ry hearing in a paternity disestablishment proceeding to provide mother who failed to submit child for genetic testing with an opportunity to show good cause for her failure to do so); cf. Dep’t of Children & Family Servs. v. J.W., 890 So.2d 337, 340-41 (Fla. 2d DCA 2004) (remanding for the taking of further evidence where Department of Children and Family Services had not been provided an opportunity to present additional evidence after the trial court correctly determined that clear and convincing evidence standard applied); Spooner v. Spooner, 838 So.2d 1202, 1203 .(Fla. 2d DCA 2003) (remanding for evidentiary hearing where former husband had not been afforded an opportunity to show a substantial change in circumstances warranting a modification of alimony obligation).

III.

Although we reject DOR’s arguments concerning newly discovered evidence and timeliness, we reverse and remand for the limited purpose of having the trial court conduct further proceedings and make appropriate findings regarding the child support issue. The trial court should then grant or deny the petition, depending on the result dictated by its findings about child support. We again certify conflict with Hooks, and we further certify conflict with Aulet to the extent its holding is inconsistent with our. holding about the meaning of section 742.18(l)(b).

Reversed and remanded; conflict certified,

BLACK, J., Concurs.

WALLACE, J., Concurs in part and dissents in part.

WALLACE, Judge,

Concurring in part and dissenting in part.

I concur in part and dissent in part. I agree with the conclusión reached in section IIA of the majority opinion. However, if we were writing on a clean slate, I would adopt the approach taken by the First District in Hooks. Under an analysis of the facts of this case based on Hooks, the conclusion that M.J.M. failed to act with due diligence and did not satisfy the newly discovered evidence requirement of section 742.18 would be inescapable. Nevertheless, I acknowledge that this court’s decision in P.G. is binding on this panel. The majority properly applies the approach taken by this court in P.G. to the facts of this case to conclude that M.J.M. satisfied the newly discovered evidence requirement of section 742.18.1 also concur in the majority’s conclusion in section II B that the trial court did not err in declining to deny M.J.M.’s petition as untimely filed.

I part company with the majority and dissent from the analysis in section II C of the opinion. As the majority recognizes, M.J.M. had the burden of proving his entitlement to relief on his petition. See Dep’t of Revenue v. Hartsell, 189 So.3d 363, 367 (Fla. 1st DCA 2016); Fla. Dep’t of Revenue ex rel. Corbitt v. Alletag, 156 So.3d 1110, 1113 (Fla. 1st DCA 2015). In order to be entitled to relief on his petition, M.J.M. was required to establish, among other things, that he

is current on all child support payments for the applicable child or that [he] has substantially complied with his child support obligation for the applicable child and that any delinquency in his child support obligation for that child arose from his inability for just cause to pay the delinquent child support when the delinquent child support became due.

§ 742.18(2)(c). The majority properly recognizes that the trial court’s findings of fact are insufficient as a ruling that M.J.M. met this high bar. Nevertheless, the majority disposes of the case by a reversal and remand to give M.J.M. a do-over and to allow the trial court an opportunity to try again. I dissent from this approach because the record is more than sufficient to establish that M.J.M. will never be able to meet the requirements of the statute so as to be entitled to relief. Moreover, the majority’s remedy is inconsistent with this court’s policy of disallowing claimants who fail to prove their cases another bite at the apple so that they may attempt to fill in the gaps in the evidence at a subsequent hearing. See Airsman v. Airsman, 179 So.3d 342, 345 (Fla. 2d DCA 2015); Correa v. U.S. Bank Nat’l Ass’n, 118 So.3d 952, 956 (Fla. 2d DCA 2013) (“[Ajppellate courts do not generally provide' parties with an opportunity to retry their case upon a failure of proof.” (alteration in original) (quoting Morton’s of Chi., Inc. v. Lira, 48 So.3d 76, 80 (Fla. 1st DCA 2010))).

DOR filed its Complaint to Determine Paternity and Support on May 3, 2005. M.J.M. was served with process, and the return of service of process was filed with the trial court on May 24, 2005. After M.J.M. failed to respond to the complaint within the allotted time, the clerk entered a default against him on June 9, 2005. The final judgment of paternity and support was entered on August 29, 2005. In the final judgment, the trial court ordered M.J.M. to pay child support in the amount of $58 per week, in addition to $12 per week toward retroactive child support in the amount of $2552 accrued from November 1, 2004, through September 2, 2005.

It does not appear from the record that M.J.M. has ever paid any significant amounts toward his child support obligation. To the extent that M.J.M has paid anything toward his child support obligation, his payments appear to have been limited to payment of the purge amounts necessary to avoid incarceration or to obtain release from incarceration for nonpayment. Indeed, the trial court found that at the time of the hearing held on July 14, 2014, M.J.M. had a child support arrearage of approximately $36,000. The child support arrearage included $2348 owed to another state for public assistance benefits paid to A.M.R. The record shows that the reason underlying M.J.M.’s consistent nonpayment of his obligation was based in substantial part on a conscious choice, not an inability to pay. According to the trial court’s findings, “[M.J.M.] testified that he never paid the ordered child support because he did not believe the child was his but was unable to prove that until the first DNA test was completed.” The course of the proceedings in the trial court available in our record includes at least some of the various proceedings that DOR brought against him for his persistent nonpayment of his court-ordered obligation. Once again, these proceedings establish that M.J.M. simply refused to pay while able to do so.

On March 2, 2006, the trial court issued a Motion for Contempt/Notice of Hearing/Notice to Produce scheduling a hearing for March 15, 2006, at which M.J.M. was required to appear to show cause why he should not be held in contempt for his failure to pay the court-ordered support payments and to produce his financial records. M. J.M. failed to appear for this hearing. On March 20, 2006, the trial court issued an order finding that M.J.M. had the ability to pay support and that his failure to pay was willful. The trial court found that M.J.M. was in contempt of court for his failure to pay child support as previously ordered. On the same day, the trial court issued a writ of bodily attachment for MJ.M.’s arrest.

After the writ was served, M.J.M. appeared in court for a first appearance hearing on June 2, 2006. At that time, he filled out a form stating that he was self-employed in the irrigation business. The trial court issued an order finding that M.J.M. was in arrears on his child support obligation in the amount of $2805.84. The trial court found that M.J.M. had the ability to pay support, that his failure to pay was willful, and adjudged him to be in contempt for his failure to pay his court-ordered support obligation. Noting that M.J.M. had never made a payment, the trial court sentenced him to an indefinite term in the Polk County Jail not to exceed 179 days. The order provided that M.J.M. could be released from his imprisonment upon payment of a purge amount of $500. The trial court apparently based the purge amount on M.J.M.’s admissions about the liquid assets then available to him. The record does not reflect whether M.J.M. actually paid the purge amount. The trial court also ordered M.J.M. to pay $90 in costs.

On September 11, 2006, the trial court issued another Motion for Contempt/Notice of Hearing/Notice to Produce directed to M.J.M. The trial court scheduled a hearing on the motion for September 26, 2006. M.J.M. was present for this hearing. Once again, the trial court entered an order finding that M.J.M. had the ability to pay his court-ordered child support obligation and that his failure to pay was willful. The trial court adjudged M.J.M. to be in contempt. The trial court ordered that M.J.M. be incarcerated for an indefinite term in the Polk County Jail not to exceed 179 days. On this occasion, the trial court set the purge amount at $75. The record does not reflect whether M.J.M. ever paid the purge amount. Once again, the trial court ordered M. J.M. to pay $90 in costs.

Undaunted by DOR’s efforts at collection and the trial court’s findings of contempt and orders for incarceration pending payment of the purge amounts, M.J.M. continued to refuse to pay his court-ordered child support payments. After 2006, insofar as our record reveals, DOR’s enforcement efforts against M.J.M. ceased until April 2010, when another state’s child support enforcement unit located M.J.M. in another county in Florida and requested assistance in obtaining reimbursement for public assistance payments made to A.M.R. in the other state where she was then residing with the child. As the trial court noted in the order under review, “the [state of A.M.R.’s residence] has the right to be reimbursed for the $2,348.00 advanced on the minor child’s behalf, whether the Petitioner/Mother wants the funds or not.”

Despite his continuing nonpayment of his child support obligations, M.J.M. was able to raise $2500 in March 2011, which he used to retain a lawyer to file his petition to disestablish paternity. One may speculate that renewed collection efforts prompted by the request from the other state and the information its child support enforcement unit provided regarding M.J.M.’s new Florida address gave him the necessary motivation to finally address the issue of his court-ordered support obligations. M.J.M. made his payment to this lawyer more than five and one-half years after the entry of the final judgment determining paternity and support. The lawyer did not file the petition until December 6, 2012, more than seven years after the entry of the final judgment.

The record shows that M.J.M. failed to carry his burden of proving that he had substantially complied with his child support obligation and that any delinquency in his payments arose from his inability to pay the delinquent child support when it became due. More to the point, the record also shows that there is no way that M.J.M. could introduce sufficient proof on a remand to satisfy his burden or that the trial court could make the necessary findings for M.J.M. to be entitled to relief under section 742.18. Every time that M.J.M. was before the trial court for his failure to pay in accordance with the final judgment, the trial court found that he had the ability to pay, his failure to pay was willful, and he was found to be in contempt of court. The available evidence at the hearings also showed that M.J.M. was employed and had assets sufficient to meet the purge amounts ordered. Moreover, M. J.M. was able to pay his lawyer $2500 to file the petition to disestablish paternity. Finally, M.J.M. has not just missed a few payments. He has paid next to nothing, just the few minimal payments necessary to keep himself out of jail. As the trial court noted, the amount of his arrearage now exceeds $36,000. Undeniably, M.J.M. has not paid his child support obligation and his failure to pay is in substantial part the result of a conscious refusal, not an inability resulting from any just cause. It follows that M.J.M. is not entitled to the disestablishment of his paternity because he has not and cannot meet the requirements of section 742.18(2)(c).

Another aspect of the trial court’s order—not discussed by the majority—is particularly disturbing. A.M.R., the child’s mother, made several communications to the trial court stating that she would not contest MJ.M.’s petition. Whatever A.M.R.’s motivation for disclaiming any interest in collecting the child support payments intended for the benefit of her child, A.M.R. has not suddenly struck it rich and been relieved of the need for financial assistance in raising her child. In her letters addressed to the trial court, A.M.R. stated that she could not afford to travel from her state of residence to Florida for the hearing on the petition. In reaching its decision to grant M.J.M.’s petition, the trial court expressly “note[d] that [A.M.R.] has not contested this action and has expressed a desire not to have any further monies paid to her.” Although the trial court’s account of A.M.R.’s willingness to relinquish her child’s right- to support from M.J.M. is accurate, the trial court’s finding overlooks that A.M.R.’s wishes in this regard are not entitled to any weight at all. A.M.R. has no right to waive her child’s right to child support; the right to receive the child support belongs to the child, not to A.M.R. See Dep’t of Revenue ex rel. Payne v. Ortega, 682 So.2d 589, 590 (Fla. 2d DCA 1996); see also Serio v. Serio, 830 So.2d 278, 280 (Fla. 2d DCA 2002) (“It is well settled that parents may not waive their children’s right to support because that right belongs to the children.” (citing Ortega, 682 So.2d at 590)). The trial court clearly erred in relying on A.M.R.’s wishes to waive her child’s right to receive support from M.J.M. in concluding that M.J.M. was entitled to relief on his petition.

The problem in this case began when A.M.R. erroneously named M.J.M. as the father of her child. Now, no one disputes that M.J.M. is not- the child’s biological father. But M.J.M. compounded the problem when he failed to-respond to the initial summons issued to him in May 2005. Then, all M.J.M. had to do was to respond to the summons, assert a fact that he says he always knew, i.e., that he was not the child’s father, and ask for a" paternity test. MJ.M.’s inexplicable inaction in 2005 led directly to the predicament in which he now finds himself. Moreover, by failing to address this problem for many years, M.J.M. has created a situation that has likely made it impossible for DOR to identify and locate the child’s true biological father and to collect the necessary support for the child from him.

Because of M.J.M’s failure to address this matter when he was initially served and because of his consistent refusal to honor his court-ordered obligations, the child has lived for more than a decade without the benefit of the support payments to which the child—not A.M.R.—is entitled. The majority’s chosen remedy of sending this case back to the trial court for a do-over is not only inconsistent with the settled law of this district -but will only prolong the proceedings unnecessarily and postpone still further the child’s receipt of the support to which the child is entitled. It is long past time to bring these proceedings to an end, just as it is long past time for M.J.M, to begin paying his court-ordered child support obligation. For these reasons, I would reverse the trial court’s order and remand for the entry of judgment on MJ.M.’s petition in favor of DOR.

      . This is the interpretation most true to the plain meaning of the statutory text "since the initial determination of paternity.” Although the First District might be correct that the statutory term "newly discovered evidence” was borrowed from rule 1.540(b)(2), it is significant that the statute did not borrow the full text of that rule. Rule 1.540(b)(2) provides for relief from judgment on the basis of newly discovered evidence "which by due diligence could not have been discovered in time to move for a new trial or rehearing” in the proceeding in which the judgment was rendered, The fact that section 742.18 does not include similar language, and instead focuses on whether the evidence came' to light after the paternity determination, suggests that the legislature did not intend the same result. Cf. Cason v, Fla. Dep't of Mgmt. Servs., 944 So.2d 306, 315 (Fla. 2006) (declining to read words into a statute when "the [¡legislature ‘knows how to' accomplish what it has omitted.” (quoting Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla. 2000))). This is not to say that a petitioner’s diligence after coming into possession of new evidence may not be relevant to whether section 742,18 affords relief; DOR has not presented that issue on appeal in this case.

      . We do not address whether a petition filed within ninety days of a subsequent DNA test could be a factor in the consideration of whether it constitutes newly discovered evidence because that issue was not raised on appeal.

      . The dissent asserts that our decision to remand on the issues of substantial compliance and just cause is at odds with the rule that appellate courts generally do not allow a party an opportunity to present additional evidence where it failed to meet its burden of proof in the trial court. The problem here, however, is not that M.J.M. failed to meet his burden after having had an opportunity to do so—which were the circumstances in the cases the dissent cites—but rather that M.J.M. was denied that opportunity by the manner in which the trial court conducted the hearings on his petition. As the decisions cited in the text demonstrate, remand is the correct remedy in such cases. See also Winn Dixie Stores, Inc. v. Frank, 665 So.2d 271, 272 (Fla. 1st DCA 1995) (remanding for a "full and fair” opportunity for the claimant to present her case where the trier of fact "interrupted the proceedings and prevented the taking of additional evidence”). The dissent also argues that M.J.M. will never be able to meet his burden of proof and that remand is therefore futile, relying principally on two contempt orders that found that M.J.M. had the ability to pay child support. The most recent of those orders was entered in October 2006—more than six years before the petition to disestablish was filed—and our record tells nothing about what evidence (if any) was introduced to support them. Nor do these orders establish that M.J.M. had the ability to pay at any time after October 2006. See Laing v. Laing, 574 So.2d 279, 280-81 (Fla. 3d DCA 1991) (holding that order determining ability to pay child support at a past time did not resolve party’s present ability to pay, such that party was entitled to an evidentiary hearing on that subject). The balance of the dissent’s futility argument appears to rest on speculation from various facts evidenced by a limited record—for example, the dissent’s assumption that because M.J.M. was able to pay an attorney $2500 to file the petition, he must have been able to comply with his child support obligation. This kind of speculation illustrates why remand is necessary: the limited record available to us—limited in significant part because the trial court limited M.J.M.'s ability to present his case and did not make the requisite findings of fact—leaves us as a reviewing court (as opposed to a factfinding court) unable to resolve the issues without resort to guesswork.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Metro BUTNER, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D14-3868
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017
    Kevin Proulx of Kemp & Proulx, P.L., Longwood, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Metro Butner appeals his judgment and sentences following a jury trial. We affirm the judgment, but we reverse two of the sentences and remand for resentencing.

I. BACKGROUND

Mr. Butner was charged in a three-count information. A jury convicted Mr. Butner on count one, attempted second-degree murder, section 782.04, Florida Statutes (2012); on count two, aggravated assault with a firearm, section 784.021, Florida Statutes (2012); and on count three, shooting within a building, section 790.19, Florida Statutes (2012). The trial court adjudged him to be guilty in accordance with the jury’s verdict and sentenced him to twenty-five years’ prison for count one; to twenty years’ prison for count two; and to fifteen years’ prison for count three. The sentences on counts one and two were imposed as mandatory minimums. The trial court designated the sentences for all three counts to run consecutively. All three offenses arose out of an incident where Mr. Butner struggled with the victim and the victim was shot in the head.

II. DISCUSSION

On appeal, Mr. Butner raises three points. First, Mr. Butner argues that the trial court erred by denying Mr. Butner’s motion for a judgment of acquittal on count three. Second, he argues that the trial court erred in failing to read a self-defense jury instruction. Third, he argues that the trial court erred in designating the sentences on count one and count two to run consecutively. Mr. Butner’s first and second arguments are without merit and do not warrant further discussion. Mr. Butner’s third point has merit. Thus, we reverse the sentences on counts one and two and remand to the trial court for resentencing.

Mr. Butner argues that the trial court erred in designating the sentences on counts one and two to run consecutively because the trial court erroneously believed that section 775.087(2)(d), 'Florida Statutes (2012), required that result. We review this issue de novo. Williams v. State, 186 So.3d 989, 991 (Fla. 2016) (quoting Johnson v. State, 78 So.3d 1305, 1310 (Fla. 2012)), ‘When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Bennett v. St. Vincent’s Med. Ctr., Inc., 71 So.3d 828, 838 (Fla. 2011) (quoting Fla. Birth-Related Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So.3d 992, 997 (Fla. 2010)).

In this case, the language of section 775.087(2)(d) is clear. Both offenses were qualified felonies under section 775.087(2)(a). The Florida Supreme Court explained in Williams:

As written, paragraph (2)(d) contemplates two distinct imprisonment terms: a term imposed for a qualifying felony pursuant to subsection (2), and a term imposed for a non-qualifying felony. The last sentence of paragraph (2)(d) ... expressly mandates only that a qualifying felony sentence run “consecutively to” any sentence imposed for a non-qualifying felony. Nothing within paragraph (2)(d)’s plain language also requires, as the State posits, a qualifying felony sentence to run consecutively to another qualifying felony sentence.
Furthermore, at no point since its inception in the past sixteen years have we interpreted paragraph (2)(d) to mandate the imposition of consecutive sentences for the qualifying felonies. See [State v. Sousa, 903 So.2d 928, 927 (Fla. 2005) ]. ...
Thus, we concluded that paragraph (2)(d) did not attenuate trial judges’ authority to impose consecutive mandatory minimum sentences for firearm offenses.

186 So.3d at 992-93 (emphasis added).

A trial court must impose the mandatory minimum sentences concurrently when the offenses arose from the same criminal episode and a firearm was not discharged. See Walton v. State, 208 So.3d 60, 64 (Fla. 2016) (citing Williams with approval). However, a trial court has the discretion to impose the sentences consecutively when the offenses are committed contemporaneously, a firearm was discharged, and the defendant “injures multiple victims or causes multiple injuries to one victim.” Valentin v. State, 963 So.2d 317, 319-20 (Fla. 5th DCA 2007) (citations omitted); see also State v. Sousa, 903 So.2d 923, 925-26 (Fla. 2005); State v. Christian, 692 So.2d 889, 890-91 (Fla. 1997); State v. Thomas, 487 So.2d 1043, 1044-45 (Fla. 1986); Scott v. State, 42 So.3d 923, 925 (Fla. 2d DCA 2010). When it is unclear from the record whether the trial court would have imposed the same sentence if the trial court had known it had discretion, we must vacate the defendant’s sentence and remand the case for resentencing. Cf. Kezal v. State, 42 So.3d 252, 256 (Fla. 2d DCA 2010) (vacating the defendant’s sentences and remanding for resentencing because this court was “unable to determine from our review of the record whether the circuit court would have imposed the same sentences if it had understood that it had the discretion to depart under [section 921.0026(2)(j), Florida Statutes (2005)] upon proof of each element of that subsection”).

At the sentencing hearing in this case, the trial court expressly noted that Mr. Butner had the right to file a motion to correct his sentences within thirty days. Then, the trial court stated, “I will certainly grant [the motion] if I have to. This is not the sentence that if I had discretion I would not [sic] impose for his age[] or any other reason—a 60-year sentence in this case.” See Fla. R. Crim. P. 3.800(b)(1) (“During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.”). Based on the record here, it is clear that the trial court would not have imposed consecutive sentences if it had understood that it had discretion under section 775.087(2)(d) to impose the sentences concurrently. For this reason, we vacate Mr. Butner’s sentences on counts one and two and remand for resentencing on those counts. See Kezal, 42 So.3d at 256. Mr. Butner shall be entitled to be present at the resentencing hearing. In all other respects, we affirm the judgment and sentences.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and BLACK, JJ., Concur.

      . At the sentencing hearing, defense counsel expressly objected to the trial court's proposal to run the sentences on counts one and. two consecutively.

      . A qualifying felony is a felony that is explicitly listed in subsection (2) of section 775.087. Williams, 186 So.3d at 992-93. We note that, effective July 1, 2016, aggravated assault was deleted from the list of qualifying felonies in subsection (2). Ch. 2016-7, § 1, at 1,-Laws of Fla.; see also § 775.087(2)(a)(l), Fla. Stat. (2016). However, Mr. Butner committed the offenses on March 2, 2013, and the version of section 775.087 effective at that time listed aggravated assault as a qualifying felony pursuant to subsection (2). § 775.087(2)(a)(l)(f), Fla. Stat. (2012).

      . Mr. Burner was seventy-six years old at the tíme of the sentencing hearing.


author: VILLANTI, Chief Judge.

text:
    Scott M. HANSON, Appellant, v. Rhonda K. HANSON, Appellee.
    Case No. 2D16-1463
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017

      Virginia R. Vetter, Tampa; and Donald P. DeCort, Tampa, for Appellant.
    Richard W. Ervin and Clifton C. Curry, Jr., of Curry Law Group, P.A., Brandon, for Appellee.

      . The Husband was a career military officer, which entitled the Wife to certain benefits ' under the Survivor Benefit Plan (SBP). Such benefits are generally in the form of an annuity payable on death to the person entitled to receive a retirement pension from the Armed Forces. See 10 U.S.C. §§ 1447-55. The "standard” SBP annuity benefit would be based on the Wife's coverture fraction of the Husband’s retirement benefit; however, additional coverage providing for a larger monthly annuity payment was available to her for an additional premium. The Wife elected to purchase additional coverage at a monthly cost of $219. Responsibility for this additional premium was at the heart of this portion of the parties’ dispute.

   VILLANTI, Chief Judge.

Scott Hanson (the Husband) appeals the amended final judgment of dissolution of his marriage to Rhonda Hanson (the Wife), raising three issues for review. First, we reject the Husband’s claim concerning the court’s decision to distribute the liability for accrued interest payable on certain notes to him in the equitable distribution scheme without further comment. Second, we reverse the alimony award and remand for recalculation because the trial court erred by basing that award on the Husband’s gross income rather than his net income. Finally, we reverse the portion of the judgment requiring the Husband to pay a portion of the Wife’s attorney’s fees and remand for reconsideration under the correct legal standard. In all other respects, we affirm.

Alimony Award

As to the alimony award, the Husband contends that the trial court erred by basing that award on his gross income rather than on his net income. This contention is supported by the record and requires us to reverse and remand for recalculation of the amount of alimony.

There is no dispute on this issue as to the law. “An award of alimony must be based on the income that is available to the party, i.e., the party’s net monthly income.” Moore v. Moore, 157 So.3d 435, 436 (Fla. 2d DCA 2015); see also Badgley v. Sanchez, 165 So.3d 742, 744 (Fla. 4th DCA 2015) (“The judgment is also deficient for failing to look to the parties’ net incomes in assessing need and ability to pay.”); Gilliard v. Gilliard, 162 So.3d 1147, 1154 (Fla. 5th DCA 2015) (“A party’s ability to pay alimony should be based on the party’s net income; not gross income.”); Kingsbury v. Kingsbury, 116 So.3d 473, 474 (Fla. 1st DCA 2013). An alimony award based on gross income must be reversed. See, e.g., Moore, 157 So.3d at 437; Badgley, 165 So.3d at 744-45.

Here, the amended final judgment plainly states that the Husband has “current monthly gross income of $6,842” and a monthly surplus of “$1,695 before considering tax implications and imputing income.” (Emphasis added.) And while the trial court subsequently imputed $300 per month in investment income to the Husband, nowhere in the amended final judgment did the trial court address the “tax implications” on the Husband’s gross income. Further, we note that the $2000 monthly alimony award is almost exactly the amount of the Husband’s pre-tax surplus of $1695 plus his imputed investment income of $300. Hence, it is readily apparent that the trial court erroneously failed to consider the Husband’s net income rather than his gross income when fashioning its alimony award.

In defense of the trial court’s ruling, the Wife argues that the trial court could and did impute investment income to the Husband when determining his ability to pay. However, this is simply a non sequitur. The court’s decision to impute investment income to the Husband does not bear on the issue of whether the court properly considered only the Husband’s net income when determining alimony. Therefore, this argument cannot support the alimony award.

The Wife also argues for the first time in her brief that the Husband could take tax-free distributions from his IRAs to “make up the difference” between his net income and what he needs to pay the alimony award; however, this argument suffers from three infirmities. First, the Wife never made this argument in the trial court, and so no evidence was presented concerning the Husband’s ability—or lack thereof—to take tax-free IRA distributions. Second, this argument conflicts with the trial court’s express factual finding that neither party was able to take IRA distributions without penalty at this point in time. Third, this argument implicitly recognizes that the trial court awarded alimony in an amount that the Husband is simply not able to pay from his monthly net income. Hence, this newly raised argument cannot support the alimony award to the Wife.

For all of these reasons, we must reverse the $2000 per month alimony award and remand for reconsideration. And because we are doing so, we will briefly address two issues raised by the Husband in case they arise again on remand. First, the Husband contends that the trial court erred in its evaluation of the parties’ relative lifestyles for purposes of determining their respective monthly needs. However, the trial court found that the Wife had a lifestyle need of $5983 and the Husband had a lifestyle need of $5147. Given that the Wife’s monthly rent was $2000 and the Husband’s monthly mortgage was $1464 for a comparable residence, this difference in the calculated lifestyle needs of the parties was not so disparate as to constitute an abuse of discretion.

Second, the Husband contends that the trial court erred by adding the $219 monthly premium for additional Survivor Benefit Plan (SBP) coverage to the Wife’s monthly need. The Husband argues that because the Wife chose to purchase SBP coverage over, and above her coverture amount, she should be solely responsible for the premium as a voluntary expense rather than a “need.” While the trial court certainly could have determined that this was a voluntary expense incurred by the Wife, it was within the trial court’s discretion to consider this premium as part of the Wife’s need, particularly since the Wife’s portion of the Husband’s retirement benefit would otherwise be significantly reduced upon his death and the alimony award will also cease at that time. In essence, the trial court’s ruling was analogous to requiring the Husband to purchase and pay for life insurance to secure his alimony obligation to the Wife—a requirement clearly within the trial court’s discretion to impose. See Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla. 1989) (holding that section 61.08(3), Florida Statutes, permits a trial court to order an obligated spouse to obtain life insurance or similar security to protect the receiving spouse’s alimony award in appropriate circumstances); Wrinkle v. Wrinkle, 592 So.2d 760, 761 (Fla. 5th DCA 1992) (analogizing the use of SBP benefits to the use of life insurance as security for the payment of alimony). And while we can appreciate the Husband wanting to limit the Wife to her “standard” benefit, under the facts here—where the Wife did not work during the parties’ long-term marriage and where she has limited earning capacity due to medical issues—we cannot say that the trial court’s ruling that will permit her to receive an amount after the Husband’s death comparable to what she will be receiving during the Husband’s lifetime constitutes an abuse of discretion. Moreover, as the court noted in Wrinkle, “[i]f the trial court intended for the former wife to receive [the full amount awarded] in alimony, then having the former wife pay for the protection afforded by the survivor’s benefit is inconsistent [with] and detracts from the alimony award.” 592 So.2d at 761. For all of these reasons, on the record before us, we have no basis upon which to disturb this award.

In sum on this issue, we reverse the award of alimony because it was improperly based on the Husband’s gross income rather than his net income. On remand, once the Husband’s net income is determined, the trial court may then award the Wife alimony in an amount that the Husband has an ability to pay. The determination of the parties’ relative needs need not be reconsidered on remand.

Award of Attorney’s Fees

The Husband also contends that the trial court erred by ordering him to pay an additional $86,000 toward the Wife’s attorney’s fees, over and above the $47,277 he had already paid in temporary fees and costs. Because the trial court equalized the parties’ assets and incomes in the amended final judgment, it was improper for the court to also award the Wife her attorney’s fees. Accordingly, we reverse the attorney’s fee award. However, because we are remanding for recalculation of the alimony award, the trial court may reconsider the attorney’s fee award after it adjusts the alimony award.

As a general rule, when “marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, the trial court abuses its discretion by awarding attorney’s fees.” Hutchinson v. Hutchinson, 185 So.3d 528, 529 (Fla. 1st DCA 2015) (citing Galligar v. Galligar, 77 So.3d 808, 812-13 (Fla. 1st DCA 2011)); see also Lopez v. Lopez, 780 So.2d 164,166 (Fla. 2d DCA 2001) (concluding that an award of attorney’s fees to the wife was improper when “the parties’ financial positions ... were equalized through the award of alimony and equitable distribution of marital assets”); Matajek v. Skowronska, 927 So.2d 981, 988 (Fla. 5th DCA 2006) (“[A]n award of attorney’s fees is inappropriate if the parties are left in relatively equal financial circumstances after the dissolution.”); Reed v. Reed, 710 So.2d 727, 728 (Fla. 4th DCA 1998) (“Where the equitable distribution of the parties’ marital assets leave the parties in substantial financial parity, an award assessing attorney’s fees is an abuse of discretion.”). Further, the trial court cannot turn a blind eye to the availability of nonmarital assets as a source of funds for paying attorney’s fees. See Lopez, 780 So.2d at 166 (noting that the fact that the wife had “additional non-marital assets that enable her to retain competent counsel” was further support for the court’s determination that requiring the husband to contribute to the wife’s attorney’s fees was an abuse of discretion). Indeed, since the purpose of section 61.16, Florida Statutes, is to ensure that both parties have comparable ability to retain competent counsel, an award of attorney’s fees must be based on “the parties’ relative financial resources” when the final judgment is entered. Humerickhouse v. Humerickhouse, 932 So,2d 1142, 1145 (Fla. 2d DCA 2006). This includes all of their resources—not just earned income.

Here, the amended final judgment awards the Wife $601,192 in marital assets and $359,113 in nonmarital assets, for a total award of assets of $960,305. The Husband was awarded $601,192 in marital assets and $195,097 in nonmarital assets, for a total award of assets of $796,289. Hence, the Wife has received an award of assets that is significantly greater than that of the Husband. Further, the trial court essentially equalized the parties’ incomes through its award of alimony to the Wife. Therefore, when the amended final judgment was entered, the parties’ marital property had been equitably distributed and the parties’ incomes had been equalized through an alimony award, and the trial court should not have awarded attorney’s fees to the Wife.

The trial court’s error in this regard is compounded by the fact that the Husband has retired from military service and so the only income available is his retirement income and the-parties’ investment income. This is not a situation in which the Husband continues to have income and the possibility of bonuses that he can use to rebuild his retirement accounts after liquidating them to pay the Wife’s attorney’s fees. Compare DiNardo v. DiNardo, 82 So.3d 1102, 1106 (Fla. 2d DCA 2012) (noting that because the Husband was still working and had the chance to earn significant bonuses, the final judgment did not truly equalize the parties’ incomes for purposes of determining whether an award of attorney’s fees was proper), with Mertz v. Mertz, 287 So.2d 691 (Fla. 2d DCA 1973) (finding it was error to award the wife attorney’s fees when she received comparable marital assets to the husband, when she had significant nonmarital assets, and when the husband had but a few years left to work). Therefore, the award of attorney’s fees to the Wife constituted an abuse of discretion and must be reversed.

That said, however, it is clear that the trial court anticipated that the Wife would invest the assets she received—both marital and nonmarital—and it imputed $1400 per month in investment income to her based on her receipt of those assets. If the Wife is forced' to deplete those assets to pay her attorney’s fees, her investment income will be reduced. And it is improper for the trial court to consider an asset both as a source of investment income and as a source for paying attorney’s fees; Cf. Diffenderfer v. Diffenderfer, 491 So.2d 265, 267 (Fla. 1986). Therefore, • because the alimony award must be reconsidered on remand, the trial court may again award attorney’s fees to the Wife if the evidence shows the Wife’s need -and the Husband’s ability to pay after these adjustments, keeping in mind the general principle that fees are improper when assets and income are equalized.

Affirmed in part; reversed in part; remanded for further proceedings.

GASANUEVA and KHOUZAM, JJ., Concur.

      . Using the SBP benefit in this fashion also allowed the parties and the court to avoid the issues of the availability and affordability of life insurance to the Husband.

      . We note that this is not a situation in which the Wife will receive more in benefits after the Husband's death than her calculated need.


author: PER CURIAM.

text:
    John ZIRUOLO, Appellant, v. Heather D. ZIRUOLO, Appellee.
    CASE NO. 1D16-345
    District Court of Appeal of Florida, First District.
    Opinion filed April 28, 2017

      Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Appellant.
    Heather D. Ziruolo, pro se, Appellee.
   PER CURIAM.

This appeal arises from a final order of dissolution of marriage establishing parental responsibility, child support, and the distribution of marital assets. We reverse because the trial court did not make certain required findings.

The parties in this case were married in 1999 and have two minor children. Both parties filed petitions for divorce in 2014. The trial court held a final hearing on their petitions in 2015 and: (1) ordered shared parental responsibility, but granted Appel-lee ultimate decision-making authority with respect to the minor children’s healthcare needs, school-related matters, and other activities; (2) awarded Appellee approximately sixty percent of the marital assets on the basis that Appellant earned more income; (3) ordered Appellant to pay $1,400 a month in child support; and (4) awarded Appellee $2,500 attorneys’ fees.

Parental Responsibility

This Court reviews a trial court’s decision regarding parental responsibility under the abuse of discretion standard, reviewing specifically whether competent, substantial evidence supports the trial court’s decision. Smith v. Smith, 9.71 So.2d 191, 195 (Fla. 1st DCA 2007). Trial courts must order shared parental responsibility in dissolution cases unless it would be detrimental to the child. § 61.13(2)(c)2., Fla. Stat. “This relationship contemplates that the parties will mutually confer on major decisions (e.g„ medical, religious, educational) affecting the child’s welfare and will reach agreement.” Smith, 971 So.2d at 195. If it is in a child’s best interest, the court may award ultimate decision-making authority to just one parent. See § 61.13(3)(a)-(t), Fla. Stat. (listing non-exclusive statutory factors to be evaluated in determining the best interests of the child); see also Fazzaro v. Fazzaro, 110 So.3d 49, 51-52 (Fla. 2d DCA 2013). Here, the trial court assigned one parent to be the ultimate decision maker with respect to the children’s healthcare needs, school related matters, and other activities, but provided no justification for preferring that parent. Because the order provided no basis for assigning Appellee as the ultimate decision maker, the order must be reversed.

Distribution of Marital Assets

We review a trial court’s ruling on equitable distribution of marital assets under the abuse of discretion standard. Stough v. Stough, 18 So.3d 601 (Fla. 1st DCA 2009). In a dissolution of marriage proceeding, the distribution of assets and liabilities must be equal unless an unequal distribution is warranted under the statutory factors listed in § 61.075(l)(a)-(j), Florida Statutes. See Watson v. Watson, 124 So.3d 340, 342 (Fla. 1st DCA 2013). Before a trial court may unequally distribute marital assets and liabilities, it must consider the relevant statutory factors. Id. at 342-43. The trial court did not equally distribute the assets in this case, but required Appellant to take sole possession of a certain loan obligation because he had a higher income. The court did not evaluate the statutory factors. Thus we reverse and remand so that the trial court may consider and make required findings before making an unequal distribution in Appellee’s favor, Wagner v. Wagner, 61 So.3d 1141, 1143 (Fla. 1st DCA 2011).

Child Support

We review a trial court’s award of child support under the abuse of discretion standard. Parker v. Parker, 141 So.3d 1291 (Fla. 1st DCA 2014). A trial court determines the amount of child support a party owes by utilizing the guidelines set forth in § 61.30, Florida Statutes. Because the trial court failed to apply these child support guidelines, we reverse and remand for further findings as to the proper amount of support. Hauser v. Hauser, 778 So.2d 309, 310 (Fla. 1st DCA 2000); Elias v. Elias, 168 So.3d 301, 302 (Fla. 4th DCA 2015).

Attorneys’ Fees

We review a trial court’s award of attorneys’ fees in a dissolution of marriage case under the abuse of discretion standard. Keena v. Keena, 245 So.2d 665 (Fla. 1st DCA 1971). In dissolution cases, the standard for awarding attorneys’ fees is “the financial need of the requesting party factored with the financial ability of the other party to pay.” Lovell v. Lovell, 14 So.3d 1111, 1116 (Fla. 5th DCA 2009). A critical factor for a trial court to consider in awarding fees is the financial situation of the parties after the dissolution proceeding has concluded. Id. (directing courts to determine attorney’s fees after the dissolution proceeding has concluded, based upon the parties’ resulting financial situation). Because we are reversing the distribution of marital assets and child support allocation made in the final judgment, we must also reverse the award of attorneys’ fees. Id.

Conclusion

For these reasons, we REVERSE and REMAND for further proceedings consistent with this opinion.

OSTERHAUS, JAY and WINSOR, JJ., CONCUR.


text:
    Larry K. DOBSON and Laurie M. Dobson, Appellants, v. U.S. BANK NATIONAL ASSOCIATION, as Indenture Trustee, Successor in interest to Wachovia Bank, N.A., as Indenture Trustee, for Merrill Lynch Mortgage Investors Trust, Series 2005-A9, et al., Appellees.
    Case No. 5D16-200
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 28, 2017
    Adam H. Sudbury, of Apellie Legal Services, Orlando, for Appellants.

      Kimberly N. Hopkins, of Shapiro, Fish-man & Gaché, LLP, Tampa, for Appellee, US Bank National Association.
    No Appearance for other Appellees.
   PER CURIAM.

Larry and Laurie Dobson timely appeal the Final Judgment of Foreclosure entered in favor of U.S. Bank National Association. We find merit in the Dobsons’ claim that the trial court violated their due process rights when it ended the trial without allowing them to present evidence in their defense. Accordingly, we reverse.

Whether a trial court has violated a party’s due process rights is subject to de novo review. VMD Fin. Servs., Inc. v. CB Loan Purchase Assocs., 68 So.3d 997, 999 (Fla. 4th DCA 2011) (quoting Dep’t of Rev. ex rel. Poynter v. Bunnell, 51 So.3d 543, 546 (Fla. 1st DCA 2010)). Due process requires that each litigant be given a “full and fair opportunity to be heard.” Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1027 (Fla. 2d DCA 2007) (citing Cty. of Pasco v. Riehl, 635 So.2d 17, 18 (Fla. 1994)). “The right to be heard ¿t an evi-dentiary hearing includes more than simply being allowed to be present and to speak. Instead, the right to be heard includes the right ‘to introduce evidence at a meaningful time and in a meaningful manner.’” Id. (quoting Baron v. Baron, 941 So.2d 1233, 1236 (Fla. 2d DCA 2006)). Thus, “[d]ue process requires that a party be given the opportunity ... to testify and call witnesses on his behalf, and the denial of this right is fundamental error.” Pettry v. Pettry, 706 So.2d 107, 108 (Fla. 5th DCA 1998) (citation omitted).

At trial, Bank’s attorney presented several witnesses, who were thoroughly cross-examined by the Dobsons. When Bank rested its case, the Dobsons moved for involuntary dismissal based, in part, on Bank’s failure to comply with paragraph 22 of the mortgage. After Bank responded, the trial court denied the motion. Immediately thereafter, the trial court informed the parties that it was entering final judgment in favor of Bank and asked Bank to submit a proposed final judgment. At that time, the Dobsons’ attorney attempted to move a document into evidence, but the trial court refused to allow him to do so. When counsel protested, the trial court responded by saying: “[j]udgment has been entered. Judgment has been entered,” and the hearing immediately ended.

The record shows the Dobsons wanted to offer at least one piece of evidence for the trial court to consider before ruling, but the court refused to allow them to do so. They were also precluded from presenting closing arguments. This was error.

Inasmuch as the trial court’s refusal to allow the Dobsons to present evidence violated their due process rights, we are compelled to reverse the final judgment and remand for a new trial. See Beltran v. Kalb, 982 So.2d 24, 26 (Fla. 3d DCA 2008) (finding trial court denied appellants’ right to due process of law when it summarily denied motions without giving appellants reasonable opportunity to be heard (citing Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972))); Edelman v. Breed, 836 So.2d 1092, 1093-94 (Fla. 5th DCA 2003) (holding trial court committed reversible error and denied party due process when it directed verdict against party before he presented his case); Pettry, 706 So.2d at 108 (noting that due process requires party be given opportunity to be heard, to testify, to call witnesses on his behalf, and to present closing argument (citing Vazquez v. Vazquez, 626 So.2d 318 (Fla. 5th DCA 1993); Strong v. Mt. Dora Growers Coop., 495 So.2d 1238 (Fla. 5th DCA 1986))).

REVERSED AND REMANDED.

BERGER and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.


author: MORRIS, Judge.

text:
    HIGHLANDS-IN-THE-WOODS, L.L.C., a Florida Limited Liability Company, Appellant, v. POLK COUNTY, Appellee.
    Case No. 2D15-2801
    District Court of Appeal of Florida, Second District.
    Opinion filed April 28, 2017.

      Eric S. Adams and Lauren A. Taylor of Shutts & Bowen LLP, Tampa, for Appellant.
    Hank B. Campbell and Jennifer M. Vasquez of Valenti Campbell Trohn Tamayo & Aranda, P.A., Lakeland, for Appellee.
    Christopher B. Lunny of Radey Law Firm, Tallahassee, for Amici Curiae National Association of Home Builders and Florida Home Builders Association.
   MORRIS, Judge.

Highlands-In-The-W oods, L.L.C. (Highlands), appeals a final summary judgment entered in favor of Polk County on Highlands’ three-count complaint for declaratory relief and for inverse condemnation under both the U.S. and Florida Constitutions. Polk County conditioned Highlands’ permit for development of a subdivision on the installation of a reclaimed water use system in the subdivision and the dedication of the system to the County. In this appeal, Highlands argues that these exactions constitute an unlawful taking. We disagree and affirm the trial court’s decision to grant summary judgment in favor of Polk County.

In its 2009 complaint, Highlands alleged that it is the owner and developer of a sixty-lot, single-family subdivision in Polk County. In 2003 the County conditioned Highlands’ receipt of development permits on Highlands’ installation of a system that would connect to a reclaimed water system. This condition was authorized by section 702.G of the Polk County Land Development Code, adopted in 2003, which provides the following:

For any development where water reuse systems are available, connection to such reuse system shall be required. A municipal, County owned, or private Water Reuse System is considered to be available when:
1. There is sufficient capacity to' serve the subject property, and
2. An adequately sized distribution system is within one mile of the property.

Highlands referred to the reclaimed water system it was required to install as “reuse improvements.” The County also required Highlands to dedicate the reuse improvements to the County, which included a parcel of land that houses the above-ground main reuse line facility.

Highlands became aware in 2006 that several developments had been unable to connect to a reclaimed water system due to the construction boom during those years and the resulting unavailability of reclaimed water. This caused Highlands to consider installing an irrigation well for use in the common areas of the development. Highlands decided against installing such a well after it received assurances from the County that there was sufficient reclaimed water capacity to serve the subdivision. Thereupon, Highlands installed landscaping in the common areas in an effort to complete development of the subdivision.

Later in 2006, the County informed Highlands that reclaimed water was unavailable to Highlands due to demand exceeding supply but that the reuse lines were still required in the subdivision. Highlands was required to reroute its irrigation system and use potable water for irrigation of the landscaping it had planted in the common areas. In November 2006, at a meeting of the Board of County Commissioners, the County accepted and took possession of the reuse improvements from Highlands. Highlands alleged that reclaimed water was unavailable for the subdivision until 2008.

Highlands claimed that when the County issued permits for the subdivision, it knew or should have known that reclaimed water was not available. Highlands claimed that the reuse improvements resulted in additional expense and delayed the completion of the subdivision. It also alleged that the cost of using potable water for irrigation for two years was considerably higher than the cost of installing a well, an option that Highlands considered but decided against after the County assured it that reclaimed water would be available. Highlands further alleged that despite a demand by Highlands, the County refused to compensate Highlands for its property rights.

In its count for declaratory relief, Highlands asked the trial court to enter a judgment declaring that the County’s conditioning of the permits on the reuse improvements was an unlawful exaction and regulatory taking and that Highlands is entitled to compensation from the County. In its count for inverse condemnation under the Florida Constitution, Highlands argued that the County’s requirement that Highlands install the reuse improvements and the taking of those improvements substantially interfered with Highlands’ property rights and deprived Highlands of the use of those portions of the subdivision. It also alleged that the taking of the reuse improvements without compensation constitutes an unlawful taking. In its count for inverse condemnation under the U.S. constitution, Highlands alleged a taking under the Fifth and Fourteenth Amendments.

Both Highlands and the County moved for summary judgment. After a hearing, the trial court entered summary judgment in favor of the County. The trial court first concluded that declaratory judgment was not appropriate for an action for inverse condemnation. The court then ruled that Highlands’ inverse condemnation claim based on Florida law fails because Highlands has clearly not been substantially deprived of all beneficial uses of its property and because the inability to develop a small portion of its property does not constitute an unconstitutional taking when the property in its entirety is considered. The court further concluded that because Highlands dedicated the property to the County, an inverse condemnation claim is not supported under Florida law. As for the federal claim, the court concluded that an unconstitutional exaction cannot be based on the temporary unavailability of reclaimed water and the necessity of temporarily installing an alternative system for watering landscape. The court ruled that the County’s requirement was uniformly mandated for all new developments and was not an adjudicative decision requiring Highlands to bear some singular and unfair burden.

On appeal, Highlands argues that the trial court misapprehended its claims and contends that the County’s requirement that it install and dedicate the reuse improvements constituted an unlawful exaction and regulatory taking that was not “roughly proportional” to the County’s interest in reducing Highlands’ use of potable water. Highlands argues that its claims were based on the unavailability of reclaimed water at the time of the dedication and the County’s violation of its own ordinance requiring that sufficient reclaimed water be available. Highlands claims that the taking constituted an inverse condemnation for which Highlands must be compensated.

The County responds that the County’s requirement that Highlands install the reuse improvements was based on a County ordinance and was therefore not an adjudicative decision subject to the Nollan and Dolan standard. See Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987); Dolan v. City of Tigard, 512 U.S. 374,. 384, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994). The County also argues that even if the standard in Nollan and Dolan applies, there is no taking because the requirement passes the essential nexus and rough proportionality tests of that standard.

We review de novo the trial court’s determination that the County was entitled to—and that Highlands was not entitled to—a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000). The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, prohibits the taking of private property “for public use, without just compensation.” U.S. Const. amends. V, XIV, § 1; Dolan, 512 U.S. at 383-84, 114 S.Ct. 2309 (quoting Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239, 17 S.Ct. 581, 41 L.Ed. 979 (1897), and U.S. Const. amend. V). “One of the purposes of the Takings Clause is ‘to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.’ ” Dolan, 512 U.S. at 384, 114 S.Ct. 2309 (quoting Armstrong v. United States, 364 U.S. 40, 49, 80 S.Ct. 1563, 4 L.Ed.2d 1654 (1960)). “[A] plaintiff seeking to challenge a government regulation as an uncompensated taking of private property may proceed under one of the” four theories identified in Lingle v. Chewron U.S.A., Inc., 544 U.S. 528, 548, 538, 546, 125 S.Ct. 2074, 161 L.Ed.2d 876 (2005),

Highlands argues on appeal that the County’s exactions in this case do not satisfy the “rough proportionality” test, thereby invoking the fourth theory of unconstitutional takings addressed in the decisions of Nollan, 483 U.S. 825, 107 S.Ct. 3141, and Dolan, 512 U.S. 374, 114 S.Ct. 2309, It appears from the language of its order that the trial court did not apply the Nollan and Dolan standard but instead concluded that this case is not subject to that standard because this case does not involve an adjudicative decision. We are not convinced that the County’s decision regarding Highlands was only legislative in nature and not adjudicative. While the County ordinance requiring the connection to a reuse system may also apply to other subdivisions in the county, Highlands’ permit was conditioned on the construction of the reuse improvements as well as its dedication of the improvements and land to the County, Further, we consider the Nollan and Dolan standard because it is the basis for reversal argued by Highlands.

In evaluating whether an unconstitutional taking has occurred under the Nollan and Dolan theory of takings, a court must first “determine whether the ‘essential nexus’ exists between the ‘legitimate state interest’ and the permit condition exacted by the” government. Dolan, 512 U.S. at 386, 114 S.Ct. 2309 (quoting Nollan, 483 U.S. at 837, 107 S.Ct. 3141). If such a nexus exists, a court must then “determine whether the degree of exac-tions demanded by the [government’s] permit conditions bears the required relationship to the projected impact of the petitioner’s proposed development.” Dolan, 512 U.S. at 388, 114 S.Ct. 2309 (citing Nollan, 483 U.S. at 834, 107 S.Ct. 3141). The conditions of the permit must have a “rough proportionality” in “nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at 391, 114 S.Ct. 2309. This standard applies in the “special context of exactions—land-use decisions conditioning approval of development on the dedication of property to public use.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 702, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999). The test. “considers whether dedications demanded as conditions of development are proportional to the development’s anticipated impacts.” Id. at 703, 119 S.Ct. 1624.

Under Nollan and Dolan[,3 the government may choose whether and how a permit applicant is required to mitigate the impacts of a proposed development, but it may not leverage its legitimate state interest in mitigation to pursue governmental ends that lack an essential nexus and rough proportionality to those impacts.

Koontz, 133 S.Ct. at 2595.

Here, there is,a clear legitimate state interest in new developments using reclaimed water. The Florida Legislature has declared that “[t]he encouragement and promotion of water conservation and reuse of reclaimed water ... are state objectives and considered to be in the public interest.” § 373.250(l)(a), Fla. Stat. (2003). The Polk County Comprehensive Plan, Infrastructure Element Changes For Reclaimed/ Reuse Water 2002-2011, advances the state’s interest in conserving water for the future:

OBJECTIVE 3.105-D: Polk County shall preserve existing water supplies (potable, industrial, and agricultural) to meet the demands for future growth.
POLICY 3.105-D6: The County shall develop a program to implement the use of properly treated wastewater for agricultural and residential irrigation, industrial coolant, and other activities which do not require the use of potable water.

There is also a clear nexus between the legitimate state interest in conserving water and the permit conditions imposed by the County requiring the use of reclaimed water in the subdivision. The conditions require the installation and dedication of reuse improvements so that the future residents of the subdivision have access to reclaimed water and are not required to use potable water for residential irrigation.

Next, we turn to whether the conditions of the permit bear the required relationship to the projected impact of Highlands’ proposed development, i.e., whether the conditions of the permit have a “rough proportionality” in “nature and extent to the impact of the proposed development.” Dolan, 512 U.S. at 391, 114 S.Ct. 2309. Highlands applied for a permit to develop a subdivision consisting of sixty residential lots as well as common areas. The County required the installation and dedication of reuse improvements in the subdivision that will be used by the future residents for landscape irrigation. The conditions imposed by the County are directly related to the impact of the subdivision on the state’s water resources and do not impermissibly reach beyond that impact. The fact that reclaimed water was not available for two years, requiring Highlands to use potable water to irrigate the landscaping in its common areas during that time, does not alter the conclusion that the reuse improvements have a rough proportionality to the impact of the development. The unavailability of reclaimed water for the common areas for a period of two years is insignificant in comparison to the availability of reclaimed water for the indefinite future of the entire sixty-lot subdivision.

Because we conclude that the exactions in this case do not constitute an unconstitutional taking under the standard set forth in Nollan and Dolan, Highlands’ claims for inverse condemnation under the U.S. constitution must fail. See Sarasota Welfare Home, Inc. v. City of Sarasota, 666 So.2d 171, 173 (Fla. 2d DCA 1995) (“Inverse condemnation is a cause of action by a property owner to recover the value of property that has been de facto taken by an agency having the power of eminent domain where no formal exercise of that power has been undertaken.” (citing City of Pompano Beach v. Yardarm Rest., Inc., 641 So.2d 1377 (Fla. 4th DCA 1994)). Further, because Highlands did not establish an unconstitutional taking under the U.S. constitution, it has failed to establish an unconstitutional taking under the Florida Constitution. See St. Johns River Mgmt. Dist. v. Koontz, 77 So.3d 1220, 1226 (Fla. 2011) (“[T]his Court has interpreted the takings clauses of the United States and Florida Constitutions coextensively.”), quashed on other grounds by Koontz, — U.S. -, 133 S.Ct. 2586.

Affirmed.

NORTHCUTT and CRENSHAW, JJ., Concur.

      .The first two are narrow categories that involve a physical invasion of property, see Loretto v. Teleprompter Manhattan CATV Corn., 458 U.S. 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), or a regulation that completely deprives an owner of all economically beneficial use of his or her property, see Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1019, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Lingle, 544 U.S. at 538, 548, 125 S.Ct. 2074. The third category of takings is gov- . erned by the standard set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), and the fourth category is governed by the standard set forth in Nollan and Dolan. Lingle, 544 U.S. at 538-39, 548, 125 S.Ct. 2074. Because Highlands relies solely on the Nollan and Dolan standard in its initial brief, we do not address the other theories of taking. See Lingle, 544 U.S. at 548, 125 S.Ct. 2074 (holding that because the property owner argued only a theory of taking that was no longer a valid theory, property owner did not demonstrate his entitlement to relief).

      . In arguing that the exactions in this case did not satisfy the "rough proportionality” test, Highlands relies on the case of Koontz v. St. Johns River Water Management District, — U.S. -, 133 S.Ct. 2586, 186 L.Ed.2d 697 (2013). However, Koontz relies on the test set forth in Nollan and Dolan, and we do not read Koontz as altering that test in any way that affects this case,

      . In Dolan, the Court distinguished "essentially legislative determinations classifying entire areas of the city” from an "adjudicative decision to condition petitioner's application for a building permit on an individual parcel.” 512 U.S. at 385, 114 S.Ct. 2309. The Dolan Court also noted that the plaintiff in that case was required to "deed portions of [her] property to the city.” Id Despite this language in Dolan, it is unclear whether the Nollan and Dolan standard applies to generally applicable legislative determinations that affect property rights. See Koontz, 133 S.Ct. at 2608 (Kagan, J., dissenting) (questioning whether the majority in Koontz accepts the Dolan distinction between legislative determinations and adjudicative decisions); McClung v. City of Sumner, 548 F.3d 1219, 1225 (9th Cir. 2008) (acknowledging that courts have come to different conclusions on whether the Nollan and Dolan standard applies to a "legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property”), abrogated by Koontz, — U.S. -, 133 S.Ct. 2586; see also Town of Flower Mound v. Stafford Estates Ltd. P'ship, 135 S.W.3d 620, 640-41 (Tex. 2004) (noting that "a workable distinction can[not] always be drawn between actions denominated adjudicative and legislative”). Even though the County’s exactions in this case are authorized in part by a County ordinance, they are also adjudicatory in nature in that they were in response to Highlands’ request for a permit and they required Highlands to dedicate a portion of .its land,

      . .Reclaimed water was defined in 2012 as “water that has received at least secondary treatment and basic disinfection and is reused after flowing out of a domestic wastewater treatment facility.” § 373.019(17), Fla. Stat. (2012); ch. 2012-150, § 1, Laws of Fla. Also in 2012, the legislature acknowledged that the use of reclaimed water helps "to sustain water resources for the future.” § 373.250(l)(b); ch. 2012-150, § 2, Laws of Fla.