author: LAMBERT, J.

text:
    Adam HULL, Appellant, v. Autumn Sexton HULL, Appellee.
    Case No. 5D18-1517
    District Court of Appeal of Florida, Fifth District.
    Opinion filed May 31, 2019
    Andrew T. Windle, of The Windle Family Law Firm, P.A., Orlando, for Appellant.
    Therese Misita Truelove and Douglas A. Kneller, of ifloridadivorce.com, LLC, Daytona Beach, for Appellee.
   LAMBERT, J.

Adam Hull ("Former Husband") appeals the supplemental final judgment denying his petition to relocate to Oregon with his three minor children that he shares with his ex-wife, Autumn Sexton Hull ("Former Wife"). We affirm.

The parties' marriage was dissolved in June 2014. The final judgment incorporated a mediated settlement agreement executed by the parties, which included a parenting plan outlining their parental responsibilities and time-sharing with the children.

In February 2017, Former Husband was residing in Volusia County when he filed the instant petition under section 61.13001, Florida Statutes (2017), to allow him and the children to relocate to a forty-acre farm in Eugene, Oregon, beginning in April 2017. At the time, the children were residing with Former Wife in Palm Coast, Florida, and Former Husband's time-sharing included a midweek dinner every week, alternate weekends, two seven-day blocks of time during the children's summer vacation, and evenly-split holidays. Former Husband alleged that it would be in the best interest of the children to relocate with him to Oregon because it would provide the children "with a stable household, safe community, increased household income, superior schooling, [and] a wholesome and more natural lifestyle." He also requested in his petition that the current time-sharing plan be modified so that Former Wife's time-sharing would now "follow the Volusia County Long Distance Parenting Plan." Former Wife timely filed an objection to the proposed relocation. See § 61.13001(5), Fla. Stat. (2017).

The trial court's task in a relocation proceeding is to decide whether the requested relocation is in the best interest of the children. Chalmers v. Chalmers , 259 So.3d 878, 879 (Fla. 4th DCA 2018) (citing Rossman v. Profera , 67 So.3d 363, 365 (Fla. 4th DCA 2011) ). The court begins with no presumption in favor of or against a parent's request to relocate with the child, even when the move would materially affect the current schedule of contact, access, and time-sharing with the nonrelocating parent. See § 61.13001(7), Fla. Stat. (2017). In determining the best interest of the children, the court must consider and evaluate eleven separate factors set forth in section 61.13001(7)(a)-(k), with the last factor being described as "[a]ny other factor affecting the best interest of the child or as set forth in [section] 61.13," which itself separately lists twenty factors regarding the best interest of a child. See § 61.13(3)(a)-(t), Fla. Stat. (2017) ; Buschor v. Buschor , 252 So.3d 833, 835 (Fla. 5th DCA 2018).

A three-day trial on the parties' respective petitions was held in February 2018. By the time of trial, Former Husband had already voluntarily relocated to Oregon without the children. Both parties were given a full and fair opportunity at trial to present their evidence, and they both submitted written closing arguments to the court post-trial. In its detailed supplemental final judgment, the trial court addressed each factor under section 61.13001, as well as the twenty factors described in section 61.13, and specifically found that after weighing all of the factors in section 61.13001, it was not in the children's best interest for Former Husband and the children to relocate to Oregon. Although it acknowledged in its final judgment that Former Husband intended to remain in Oregon, regardless of the outcome of the case, the court declined to modify Former Husband's present time-sharing schedule because he had not separately filed a supplemental petition to modify time-sharing under section 61.13.

Former Husband's primary argument in this appeal is that the trial court erred as a matter of law in determining that absent his filing a petition or a count to modify timesharing under section 61.13, it lacked the authority under section 61.13001 to adjust his time-sharing schedule "to make it geographically viable" to accommodate his relocation to Oregon. Our review of a trial court's interpretation and application of the relocation statute is de novo. Brooks v. Brooks , 164 So.3d 162, 163-64 (Fla. 2d DCA 2015) (citing B.Y. v. Dep't of Child. & Fams. , 887 So.2d 1253, 1255 (Fla. 2004) ). We, however, see the dispositive question to be whether a parent who was unsuccessful in showing under section 61.13001 that his relocation is in the best interests of the minor children is nevertheless entitled to a modification of a previously agreed upon time-sharing schedule when the parent has voluntarily relocated without court permission. We look to the plain language of this statute for our answer.

Unlike earlier versions of the statute that focused on the relocation of the principal residence of the child, the term "relocation" under section 61.13001 is now defined to mean a change in the location of the principal residence of a parent to a new location at least fifty miles away from his or her principal place of residence at the time of the last order establishing time-sharing. § 61.13001(1)(e), Fla. Stat. (2017). "Parent" means any person so named in a court order or express written agreement or who is reflected as a parent on a birth certificate and who is entitled to access to or time-sharing with the child. § 61.13001(1)(d), Fla. Stat. (2017). Thus, based upon this present statutory language, and, as explained by our sister court, a parent without the majority of the time-sharing with the child must still petition the court for permission to relocate his or her residence when the proposed relocation will be fifty or more miles away, Brooks , 164 So.3d at 164-65, with the court to decide whether the relocation of the parent is in the best interest of the child.

Pertinent here, section 61.13001 provides that, if relocation is approved , the trial court has the authority and discretion to order or modify time-sharing, contact, access, telephone, internet, webcam, and other arrangements sufficient to ensure that the child has frequent, continuing, and meaningful contact with the nonrelocating parent, if financially affordable and in the best interest of the child. § 61.13001(9), Fla. Stat. (2017). Former Husband, in fact, requested that the court modify time-sharing for Former Wife, if his petition was granted. This statute, however, makes no provision for the trial court to modify time-sharing when the parent's relocation is not approved because it was not in the children's best interest, as happened here.

It is not the function of this court to rewrite section 61.13001 to provide that a parent who is denied relocation because the trial court finds that it is not in the children's best interest but who voluntarily relocates anyway is still entitled under the statute to have the trial court change the previously agreed upon time-sharing between the parents and their children. The purpose of the relocation statute requiring the trial court to determine whether the parent's relocation is in the child or children's best interest becomes irrelevant if the court must nevertheless modify time-sharing when the petition is denied but the parent relocates anyway. While the trial court pragmatically believed that a long distance parenting plan between the parties would need to be adopted, it correctly recognized in its final judgment that, because it denied Former Husband's petition to relocate, there was no mechanism under section 61.13001 to allow it to grant such relief. Having chosen to relocate prior to trial and without court permission, Former Husband essentially did so at his own peril as to its effect on his ability to easily exercise his agreed-upon time-sharing with the children. See Brooks , 164 So.3d at 165 (holding that based on the clear legislative intent behind section 61.13001, "the [f]ather, even as a noncustodial parent, was required to seek court permission before changing his residence").

Former Husband raises two other arguments. We reject his second argument that there is no competent substantial evidence to support the court's decision. The court analyzed the trial evidence against each of the statutory criteria listed in section 61.13001(7) and found that, among other things, the children were "thriving" in their present environment. A trial court's decision on relocation will be affirmed if the statutory findings are supported by competent substantial evidence, which they were here. Chalmers , 259 So.3d at 879 (citing Eckert v. Eckert , 107 So.3d 1235, 1237 (Fla. 4th DCA 2013) ). We conclude that the trial court did not abuse its discretion in denying Former Husband's petition. See Milton v. Milton , 113 So.3d 1040, 1041 (Fla. 1st DCA 2013) (recognizing that an appellate court reviews a relocation determination by the trial court for abuse of discretion).

Former Husband's remaining argument that the trial court erred in failing to consider Florida's "public policy" that "each minor child have frequent and continuing contact with both parents" or his constitutional right to travel is also without merit. Former Husband never challenged the constitutionality of section 61.13001 below, see Fla. Fam. Law R. Proc. 12.071 (requiring that a party challenging the constitutionality of a state statute must file a notice stating the constitutional question and serve the notice and the pleading or motion on the Attorney General or the state attorney of the judicial circuit in which the action is pending), nor did he argue to the trial court that it must consider his constitutional right to travel when determining his petition, thus waiving this argument. Lastly, Former Husband's "public policy" argument cannot be utilized to countermand the statutory requirements that a parent must show to support relocation under the plain language of section 61.13001. Former Husband's present inability to exercise his previously agreed upon time-sharing with his children is the result of the choice he made to relocate to Oregon, prior to the determination of his petition to do so.

The supplemental final judgment denying relocation is AFFIRMED.

COHEN and EISNAUGLE, JJ., concur.

APPENDIX

(Long Distance Contact Schedule More than 3 hours)
The parent who lives more than 50 miles and has more than a 3 hour commute to the local parent's residence, shall have the option to have the child(ren) every 3 day weekend during the school year. Said timesharing shall commence as early as practicable on the day before the holiday or Friday, whichever comes first, and shall conclude at 5:00 p.m. on Sunday or the day before school resumes, whichever is later. Additionally, the long distant parent may exercise a second weekend per month in the vicinity of the residence where the child(ren) are the majority of the time. In the event the parties are unable to agree which weekend, the first full weekend of the month shall be the weekend designated for timesharing. Said timesharing shall commence as early as practicable on the day school lets out or Friday, whichever comes first, and concludes at 5:00 p.m. Sunday or the day before school resumes, whichever is later.
The parent beginning his or her timesharing shall be responsible for picking up the child(ren) at the beginning of the timesharing period.
Parent/Child(ren) Contact - The child(ren) shall be permitted to have phone, e-mail, Skype, or Facetime communications with the other parent at least three times per week. If the parties are unable to agree, the child(ren) shall speak with the other parent on Mondays, Wednesdays, and Fridays at 7:30 p.m. EST. Neither parent shall monitor, intercept, interrupt, or listen to communications between the child(ren) and the other parent absent a Court order authorizing them to do so.
See Holiday Contact Schedule (Long Distance) which addresses holidays and summer.
(Holiday Contact Schedule - Long Distance)
Holiday Timesharing Supersedes the Long Distance Schedules.
Spring Break: The long distant parent shall have the child(ren) every year from immediately after school or daycare the day school recesses for the holiday until the day before school resumes.
Mother's Day Weekend: The Mother shall have the child(ren) for Mother's Day weekend each year from after school or daycare Friday until the day before school resumes. If Mother's Day falls on the Mother's regularly scheduled timesharing, then this paragraph does not apply.
Father's Day Weekend: The Father shall have the child(ren) for Father's Day weekend each year from after school or daycare Friday through the following Monday morning. If Father's Day falls on the Father's regularly scheduled summer timesharing, then this paragraph does not apply.
Thanksgiving Break: Parent one shall have the Thanksgiving Break in odd numbered years from immediately after school or daycare the day school recesses for the holiday until the day before school resumes. Parent two shall have the Thanksgiving Break in even numbered years from immediately after school or daycare the day school recesses for the holiday until the day before school resumes.
Christmas/Winter Break: Parent one shall have the week of the child(ren)'s two week winter break that includes Christmas in even number years and parent two shall have the week that includes New Years Day in even number years. Parent two shall have the week of the child(ren)'s two week winter break that includes Christmas in odd number years and parent one shall have the week that includes New Years Day in odd number years.
Check one of the following summer options:
[]Summer: The parties shall equally share the summer. If the parties are unable to agree as to how to share the summer, the long distant parent shall have the child(ren) the first half of the summer and the local parent shall have the child(ren) the second half of the summer.
[]Summer: The long distant parent shall have the entire summer except for a two week time period. Should the parties be unable to agree upon the two week time period, then the local parent shall have the child(ren) the last two weeks before school resumes.

      Former Wife also petitioned to modify the final judgment of dissolution of marriage to be awarded sole parental responsibility over the children, to have Former Husband's time-sharing supervised, and for child support to be increased. The trial court granted Former Wife's petition as to child support but denied it as to the other grounds. Neither party challenges those rulings.

      A copy of this plan is attached as an appendix to this opinion.

      When first enacted in 2006, "relocation" was defined in section 61.13001 to mean a change in the principal residence of the child , with the term "principal residence of a child" meaning the home of the designated primary residential parent. § 61.13001(1)(g)-(h), Fla. Stat. (2006). The term "change of residence address" meant the relocation of a child more than fifty miles away from his or her principal residence at the time of the entry of the last order designating or modifying the designation of the primary residential parent or the custody of the minor child. § 61.13001(1)(a), Fla. Stat. (2006). Section 61.13001(7) also provided that there was no presumption for or against a request to relocate when the primary residential parent sought to move the child. In 2008, this subsection was amended to delete this reference to the "primary residential parent," and instead provided that a presumption does not arise in favor or against a request to relocate with the child when a parent seeks to move with the child. § 61.13001(7), Fla. Stat. (2008).
      Section 61.13001 was last amended in 2009 to delete the reference to "change of residence address" in its entirety and to redefine "relocation" to mean at least a fifty-mile change in the location of the principal residence of a parent , from his or her principal residence at the time of the last order establishing or modifying time-sharing. § 61.13001(1), Fla. Stat. (2009).

      To the extent that Former Husband is arguing that he did not have the burden of proving under section 61.13 that a substantial change in circumstances had occurred since the time of the final judgment to allow his relocation to Oregon with the minor children, we agree. As previously stated, under section 61.13001(7), there is no presumption for or against a parent relocating with a child, even where the move will materially affect the current time-sharing with the nonrelocating parent. All that is required is that the petitioning parent prove by the preponderance of the evidence at trial that his or her relocation is in the best interest of the child. § 61.13001(8). If that evidentiary burden is met, the burden shifts back to the nonrelocating parent to show, by a preponderance of the evidence, that the proposed relocation is not in the best interest of the child. Id.
      We recognize that this may present an anomaly in that a parent who moves forty-nine miles away from his or her principal place of residence and thereafter seeks to modify time-sharing would still appear to have to show under section 61.13 a substantial, material, and unanticipated change in circumstances, in addition to showing that the modification in time-sharing is in the child's best interest, yet, under section 61.13001, the parent who petitions to relocate his or her principal residence fifty-one miles away or, as in this case, 3000 miles away, starts with no presumption for or against the requested relocation. To the extent that this dichotomy in the evidentiary burdens needs to be remedied, that task is best left to the Florida Legislature.

      We reject, without further discussion, Former Husband's argument that the court had previously ordered him to finalize his purchase of a home in Oregon.

      See § 61.13(2)(c) 1., Fla. Stat. (2017).


source: Caselaw Access Project

author: BADALAMENTI, Judge.

license: Public Domain

text:
    EAST BAY NC, LLC ; Clear Choice Health Care, LLC; and Margaret Dalton (as to East Bay Rehabilitation Center), Petitioners, v. The ESTATE OF Elisabeth DJADJICH, BY AND THROUGH Melanie K. REDDISH, Personal Representative, Respondent.
    Case No. 2D18-3604
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    Bruce D. Peisner, Lisa M. Albrecht, and Kirsten K. Ullman of Ullman Bursa Law, Tampa, for Petitioners.
    Joanna Greber Dettloff and Megan L. Gisclar of Wilkes & McHugh, P.A., for Respondent.
   BADALAMENTI, Judge.

East Bay NC, LLC, and Clear Choice Health Care, LLC, petition this court for a writ of certiorari directed at three discovery orders granting four motions to compel discovery filed by the Estate of Elisabeth Djadjich, through its personal representative, Melanie K. Reddish (the Estate). We grant the petition in part to the extent that the orders require production of documents that East Bay and Clear Choice objected to on the basis of various statutory privileges.

In 2016, Elisabeth Djadjich was a resident of East Bay Rehabilitation Center, a nursing facility licensed pursuant to chapter 400, Florida Statutes. Ms. Djadjich died after her discharge. In 2017, the Estate filed a complaint against East Bay and Clear Choice, seeking damages for wrongful death, negligence, and violations of certain nursing home residents' rights. During the litigation, the Estate propounded two requests for production and a set of interrogatories to East Bay and one request for production and a set of interrogatories to Clear Choice, all of which are at issue here.

East Bay and Clear Choice responded to the requests for production by producing documents responsive to some requests and objecting to the rest. East Bay and Clear Choice each objected to many of the requests as overly broad, unduly burdensome, and not reasonably calculated to lead to the discovery of admissible evidence. They also asserted secondary objections based on the quality assurance and peer review privileges set forth in various state statutes, work-product doctrine, and attorney-client privilege. They further objected to some of the document requests on grounds that the requests are violative of the privacy rights of employees and violative of the right to be free from discovery of confidential financial information. East Bay and Clear Choice also provided answers to the interrogatories served by the Estate.

The Estate then filed a motion to compel East Bay to provide better responses to the first interrogatories and a motion to compel production with the first and second requests for document production. It also filed a motion to compel Clear Choice to provide better responses to the first interrogatories and a motion to compel production with the first request for document production. In three separate orders, the trial court granted the four motions to compel filed by the Estate.

As an initial matter, we note that the three discovery orders on review here contain no findings or specific rulings on any of the objections raised by East Bay and Clear Choice. The two orders pertaining to East Bay direct East Bay, within twenty days of the date of the order, to produce all documents responsive to the forty-seven requests at issue in the first request for production and the seven requests at issue in the second request for production. One of the orders also requires East Bay to provide better answers to the three interrogatories at issue. The order pertaining to Clear Choice directs Clear Choice, also within twenty days of the date of the order, to produce all documents responsive to the twenty-one requests at issue in the first request for production and to provide better answers to the seven interrogatories at issue.

East Bay and Clear Choice timely filed the petition for certiorari before this court. They argue that the discovery orders depart from the essential requirements of law because the trial court did not specifically rule upon their objections and failed to conduct an in-camera inspection before issuing orders that force disclosure of "cat out of the bag" discovery. We agree.

"Certiorari review of a discovery order is appropriate when it 'departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.' " Bright House Networks, LLC v. Cassidy, 129 So. 3d 501, 505 (Fla. 2d DCA 2014) (quoting Ameritrust Ins. Corp. v. O'Donnell Landscapes, Inc., 899 So. 2d 1205, 1207 (Fla. 2d DCA 2005) ). An order that compels discovery of privileged information departs from the essential requirements of law because once such "information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal." Estate of Stephens v. Galen Health Care, Inc., 911 So. 2d 277, 279 (Fla. 2d DCA 2005) (citing Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987) ). When parties dispute that documents are protected under certain statutory provisions, the proper course is for the trial court to conduct an in-camera inspection to determine if the requested documents are discoverable. Tampa Med. Assocs. v. Estate of Torres, 903 So. 2d 259, 262 (Fla. 2d DCA 2005).

An order may also depart from the essential requirements of law when it "requires production of documents-without explanation-despite objections that statutory protections apply." Harborside Healthcare, LLC v. Jacobson, 222 So. 3d 612, 616 (Fla. 2d DCA 2017) (citing Bartow HMA, LLC v. Kirkland, 171 So. 3d 783, 785 (Fla. 2d DCA 2015) ). "That is, where the trial court fails to specifically address whether claimed statutory privileges apply, leaving this court 'to guess at the basis for the discovery of each document' and as to whether the trial court even considered the objection, certiorari relief may be warranted." Id. (quoting Kirkland, 171 So. 3d at 786-87 ).

Here, East Bay and Clear Choice raised objections to producing some of the documents requested by the Estate on the basis of various statutory privileges. The three discovery orders that granted the Estate's motions to compel direct East Bay and Clear Choice to produce all documents responsive to the requests at issue. Because the orders require production of all documents without explanation, it is unclear whether the trial court even considered the second-tier objections asserted by East Bay and Clear Choice, which were based on various statutory privileges. The absence of an explanation as to whether the claimed statutory privileges apply leaves "this court 'to guess at the basis for the discovery of each document' and as to whether the trial court even considered the objection." Id. (quoting Kirkland, 171 So. 3d at 786-87 ).

In Harborside, this court quashed a portion of a discovery order granting a motion to compel documents responsive to requests for production filed by Jacobson's estate. 222 So. 3d at 616. The estate had filed a complaint against a nursing facility seeking damages for wrongful death, negligence, and violations of nursing home residents' rights. Id. at 613-14. The estate propounded requests for production to the nursing facility, and the nursing facility responded by producing documents responsive to some requests and objecting to the rest. Id. The nursing facility included objections as to the scope of discovery, asserting that the requests were overly broad, unduly burdensome, irrelevant, and not reasonably calculated to lead to the discovery of admissible evidence. Id. at 614. "It also objected to various requests as subject to quality assurance, peer review, attorney-client, or work-product privileges; as proprietary documents; as violative of the privacy rights of [the nursing facility]'s employees; and as violative of the Health Insurance Portability and Accountability Act of 1996 (HIPAA)." Id. The estate then filed a motion to compel production of the documents it requested. Id. The trial court granted the motion to compel in full, requiring the production of documents-without explanation-despite objections that statutory protections apply. Id. at 616. This court quashed the trial court order in part. Id.

Just as in Harborside, the trial court orders here leave this court to guess as to whether the trial court even considered the statutory objections raised by East Bay and Clear Choice. The orders require East Bay and Clear Choice to disclose information that may be privileged. As such, we quash the trial court orders to the extent that they require production of documents that East Bay and Clear Choice objected to on the basis of various statutory privileges. See id. at 616.

Petition granted in part and denied in part; orders quashed in part.

NORTHCUTT and SLEET, JJ., Concur.


author: LUCAS, Judge.

text:
    Carmen Lucena SHAW, Appellant, v. Kim L. SHAW, Appellee.
    Case No. 2D18-331
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    Chrystal R. Koch of Koch Law Firm, Sarasota for Appellant.
    No appearance for Appellee.
   LUCAS, Judge.

Carmen Shaw (the Former Wife) appeals a final judgment of dissolution of marriage. Among the points she has raised, the Former Wife argues that, at a minimum, the trial court should have awarded her nominal permanent alimony following the dissolution of the parties' twenty-eight-year marriage. Under the facts of this case, we must agree.

The trial court found that the Former Wife, a licensed veterinarian, had only ever worked part time during the marriage and had been the primary caregiver for the parties' three minor children. The Former Wife was unemployed by the time the trial in this case concluded. According to the final judgment, the anticipated income the Former Wife "is likely to have" is approximately half of that which Kim Shaw (the Former Husband) actually earns. Recognizing this disparity and the Former Wife's employment circumstances, the trial court awarded her bridge-the-gap alimony and durational alimony. One could argue that a more comprehensive alimony award might have been appropriate under section 61.08, Florida Statutes (2018), but we cannot say the trial court abused its discretion in fashioning the Former Wife's overall alimony award in the way that it did. See Librizzi v. Librizzi, 228 So. 3d 593, 595 (Fla. 2d DCA 2017) ("This court reviews an alimony award for an abuse of discretion." (citing Crick v. Crick, 78 So. 3d 696, 698 (Fla. 2d DCA 2012) )); Johnson v. Johnson, 454 So. 2d 797, 799 (Fla. 4th DCA 1984) (holding that because "reasonable people could differ as to the propriety of the award" of alimony, the appellate court was "bound to affirm").

However, as we have explained before, a trial court should ordinarily award nominal permanent alimony in cases such as the one before us because doing so "will allow the trial court to increase the alimony award should the [w]ife find that she is unable to secure employment, after using her best efforts, in the imputed amount." See Schlagel v. Schlagel, 973 So. 2d 672, 676-77 (Fla. 2d DCA 2008). An "award of nominal permanent alimony 'will permit the wife to petition the trial court to pursue a future increase in permanent alimony should she continue to be unable to work' "and "will preserve the jurisdiction of the trial court to revisit the matter as the parties go on with their new lives." Id. at 676 (quoting Nourse v. Nourse, 948 So. 2d 903, 904 (Fla. 2d DCA 2007) ); see also Banks v. Banks, 168 So. 3d 273, 276 (Fla. 2d DCA 2015) ("In addition, taking into account the long duration of the marriage, the Wife's age, her unemployment status at the time of the final hearing, and the Husband's substantially greater earning power, the trial court on remand should consider making an award of at least a nominal amount of permanent periodic alimony to the Wife."); Gulledge v. Gulledge, 82 So. 3d 1113, 1115 (Fla. 2d DCA 2012) ; Nourse, 948 So. 2d at 904 ; Bruce v. Bruce, 243 So. 3d 461, 463 (Fla. 5th DCA 2018) ("A parties' twenty-year marriage is considered 'long-term,' raising a rebuttable presumption of entitlement to permanent alimony.").

Under the particular circumstances of this case and consistent with our precedent, we must conclude that the trial court abused its discretion when it denied the Former Wife nominal permanent alimony. Accordingly, we reverse and remand for the trial court to award nominal alimony of $ 1 per year to the Former Wife. In all other respects, the final judgment is affirmed.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Joshua J. MURPHY, DOC #H25977, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-731
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    Howard L. Dimmig, II, Public Defender, and Keith W. Upson, Special Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Joshua Murphy appeals his judgment and sentence for one count of failure to report in person to a driver's license office within forty-eight hours after a change in his transient residence. We affirm in all respects save one.

Pending resolution of this appeal, Mr. Murphy filed a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2)(B). In his motion, Mr. Murphy disputed the inclusion of fourteen points scored on his criminal punishment code scoresheet for a prior conviction that, he claimed, did not exist. The trial court denied Mr. Murphy's motion without a hearing. This was error.

"When the defense challenges prior convictions and the accuracy of the scoresheet, the [S]tate has the burden of producing competent evidence of the disputed conviction." DeGeso v. State, 771 So. 2d 1264, 1265 (Fla. 2d DCA 2000) (quoting Watson v. State, 591 So. 2d 951, 953 (Fla. 2d DCA 1991) ). "A claim that a defendant's scoresheet erroneously included as scored prior convictions crimes for which he or she had never been convicted requires an evidentiary hearing." Purifoy v. State, 10 So. 3d 197, 200 (Fla. 2d DCA 2009) (citing Walker v. State, 940 So. 2d 1215, 1216 (Fla. 2d DCA 2006) ); see also Fla. R. Crim. P. 3.800(b)(2)(B) (directing trial courts to follow the procedure under rule 3.800(b)(1)(B), which provides that an evidentiary hearing should be held if necessary). Accordingly, we reverse and remand for the court to convene an evidentiary hearing on Mr. Murphy's claim and for the court to then resentence Mr. Murphy if necessary. See Lyons v. State, 823 So. 2d 250, 251 (Fla. 4th DCA 2002).

It also appears that the trial court erroneously combined a $ 151 fine authorized under section 938.01, Florida Statutes (2017), with $ 550 in felony court costs, for a total of $ 701 which the trial court erroneously labeled as a single fine for crimes against a minor. On remand, the trial court shall enter a corrected judgment for fines and costs showing that the $ 151 fine and $ 550 in costs are separate.

Affirmed in part; reversed in part; remanded with instructions.

NORTHCUTT, BLACK, and LUCAS, JJ., Concur.


text:
    James Arthur LEE, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D19-1154
    District Court of Appeal of Florida, Second District.
    Opinion filed May 31, 2019
    James Arthur Lee, pro se.
   BADALAMENTI, Judge.

James Arthur Lee filed several documents in the Florida Supreme Court, which transferred the filings to the Tenth Judicial Circuit Court for Hardee County for consideration as a petition for writ of habeas corpus. Lee sought a court order directing officials at Hardee Correctional Institution to provide him with a bland diet. Lee failed to allege that he had exhausted the administrative remedies available to him at the Florida state prison in which he is currently housed. Instead, Lee attached various documents reflecting that a trial court had previously ordered a Miami-Dade county jail to provide him with a bland diet due to gastrointestinal troubles he was experiencing during his trial in April 1999. Lee neglected to provide any information to the trial court indicating that he sought diet-related relief from officials at his current prison and that he exhausted all administrative remedies available to him there. The circuit court dismissed the petition, finding that Lee had failed to demonstrate that he had exhausted administrative remedies.

We affirm the circuit court's order without prejudice to Lee to exhaust any administrative remedies available to him at his current prison with respect to his dietary issues and then, if necessary, to seek review in the circuit court. See, e.g., Moore v. Dugger, 613 So. 2d 571, 572 (Fla. 1st DCA 1993) (ruling that although allegations of problems such as a clogged toilet and no lights in the cell "were sufficient to state a cause of action," the habeas corpus petition in the circuit court "was facially insufficient in that it failed to allege that [the petitioner] had exhausted all available administrative remedies").

Affirmed.

NORTHCUTT and SILBERMAN, JJ., Concur.

      A petition for writ of habeas corpus is the appropriate vehicle for challenging conditions of confinement in state prison. See, e.g., Van Poyck v. Dugger, 579 So. 2d 346 (Fla. 1st DCA 1991) (addressing inadequate ventilation in a prison facility). Such a petition is to be filed in the circuit court of the county in which the prisoner is detained. See § 79.09, Fla. Stat. (2018).

      Lee did not enter into the custody of the Florida Department of Corrections until July 1999.

      Lee filed myriad documents in this court attempting to demonstrate that he had exhausted administrative remedies in recent months. However, our review of the record on appeal establishes that these documents were not before the circuit court. As such, we do not consider them in the first instance here. See Ullah v. State, 679 So. 2d 1242, 1244 (Fla. 1st DCA 1996) ("It is elemental that an appellate court may not consider matters outside the record.").


text:
    Gary MIXON, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-719
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Gary Mixon, Milton, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The postconviction court's order summarily denying Appellant's Florida Rule of Criminal Procedure 3.850 motion for postconviction relief is reversed because no court records were attached to the order. See Fla. R. Crim. P. 3.850(f)(5) ("If the [summary] denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order."). We remand for the court either to attach records to its order that conclusively refute Appellant's claims or to conduct an evidentiary hearing on his motion.

REVERSED and REMANDED.

LAMBERT, HARRIS, and GROSSHANS, JJ., concur.

      We acknowledge that the order under review referenced portions of the record that were to be attached to the order showing that Appellant was not entitled to any relief. However, no records were actually attached to the order. We relinquished jurisdiction to allow the lower court the opportunity to attach those referenced records to an amended order, but no such amended order has been filed.


text:
    Giezi CORRALES VOLPI, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-3488
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    James S. Purdy, Public Defender, and Kathryn R. Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm this Anders appeal in all respects. However, we remand for a correction of a scrivener's error on the judgment and sentence. Appellant was convicted of the lesser included offense of robbery with a mask, pursuant to section 812.13(2)(c), Florida Statutes (2017), but the judgment and sentence erroneously cites to section 812.13(2)(a), Florida Statutes, corresponding to the offense of robbery with a firearm or deadly weapon.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERROR.

ORFINGER, LAMBERT, and SASSO, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Earnest HENRY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D18-2210
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    Earnest Henry, Jasper, pro se.
    Oscar H. Eaton, of Office of Criminal Conflict & Civil Regional Counsel, Casselberry, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm this Anders appeal in all respects; however, we remand for a correction of two scrivener's errors on the judgment and sentence. On remand, the court is instructed to correct the judgment and sentence to reflect that Appellant was found guilty by a jury, as it erroneously indicates Appellant entered a plea. In addition, the judgment and sentence should reflect that on Count I, Appellant was convicted of fleeing or attempting to elude a law enforcement officer with lights and sirens activated, a third-degree felony.

AFFIRMED; REMANDED FOR CORRECTION OF SCRIVENER'S ERROR.

EVANDER, C.J., ORFINGER, and SASSO, JJ., concur.

      Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Crystal PURCELL, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2901
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 7, 2019
    James S. Purdy, Public Defender, and David M. Dixon, Assistant Public Defender, Daytona Beach, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Nora Hutchinson Hall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Crystal Purcell appeals the order denying her pre-sentence motion to withdraw her no contest plea and the judgment and sentence that the trial court entered based on that plea. Because Purcell established good cause to withdraw the plea, we reverse.

The State charged Purcell with two counts of child abuse, pursuant to section 827.03(2)(c), Florida Statutes (2015). She entered a no contest plea to these charges. Prior to sentencing, Purcell moved to withdraw her plea, alleging good cause because her attorney failed to inform her of the negative consequences a plea would have in the corresponding dependency case. Following a hearing, the trial court denied the motion.

"Failure to inform a defendant of a collateral consequence of a plea cannot render a plea involuntary." Brown v. State, 943 So. 2d 899, 901 (Fla. 5th DCA 2006) (citing State v. Partlow, 840 So. 2d 1040 (Fla. 2003) ). This Court has previously held that the potential for the termination of parental rights is a collateral consequence to a plea. Slater v. State, 880 So. 2d 802, 804 (Fla. 5th DCA 2004). This Court explained:

Termination of parental rights is not a direct or immediate consequence of such pleas and is not a punishment. It is not automatic, but instead entails the discretion of the Department of Children and Families. Further, termination of parental rights has no bearing on the range of punishment a sentencing court may impose.

Id.

However, "[w]hen a defendant files a motion to withdraw his plea prior to sentencing, pursuant to Florida Rule of Criminal Procedure 3.170(f), he is entitled to withdraw his plea as a matter of right when good cause is shown." Johnson v. State, 947 So. 2d 1208, 1210 (Fla. 5th DCA 2007). "Failure to inform [a defendant] of [a] collateral consequence may not have rendered the plea involuntary, but ... ignorance of it does meet the 'good cause' test for a pre-sentence plea withdrawal." Id.

Thus, while failing to inform Purcell of the collateral consequence of the termination of her parental rights may not have rendered her plea involuntary, her ignorance of the consequence does establish good cause.

REVERSED and REMANDED.

WALLIS, EDWARDS and HARRIS, JJ., concur.


author: BLACK, Judge.

text:
    FOUNTAINBLEAU, LLC, a South Carolina limited liability company and Noam Pyade, individually, Petitioners, v. HIRE US, INC., a Florida limited liability company and Aero Diversified Services, Inc., a Florida profit corporation, Respondents.
    Case No. 2D18-4068
    District Court of Appeal of Florida, Second District.
    Opinion filed June 7, 2019
    Nicholas A. Brown, Jaret Fuente, and Jeffrey A. Cohen of Carlton Fields Jorden Burt, P.A., Tampa, for Petitioners.
    Tyler S. Wolas of Wolas Law Group, PLLC, Largo, for Respondents.
   BLACK, Judge.

Fountainbleau, LLC, and Noam Pyade, defendants in a lawsuit filed by Hire Us, Inc., and Aero Diversified Services, Inc., seek certiorari review of an order declining to rule on pending motions, including a motion to dismiss for lack of jurisdiction, and instead sua sponte ordering the parties to arbitrate the motion to dismiss as well as the merits of the lawsuit. Fountainbleau and Mr. Pyade contend that the trial court departed from the essential requirements of law by exercising jurisdiction over the parties-ordering them to arbitration-without first determining whether it had personal jurisdiction over Fountainbleau, a South Carolina corporation, and Mr. Pyade, a South Carolina resident. We grant the petition for writ of certiorari and quash the order on review.

As relevant to the resolution of the petition before us, Hire Us and Aero Diversified (together, Hire Us) filed a second-amended complaint against Fountainbleau and Mr. Pyade (together, Fountainbleau) for breach of oral contract, fraudulent inducement, and unjust enrichment. Contemporaneously, Hire Us served interrogatories and a request for production on Fountainbleau. Fountainbleau immediately filed a motion to dismiss pursuant to Florida Rules of Civil Procedure 1.061 and 1.140, arguing forum non conveniens and lack of personal jurisdiction as required pursuant to Florida's long-arm statute, section 48.193, Florida Statutes (2018). Affidavits from Mr. Pyade individually and as the owner and registered agent of Fountainbleau were attached. Fountainbleau also filed a motion to stay merits discovery until the pending jurisdictional challenge was resolved. Fountainbleau's motion to dismiss was set for hearing, and Hire Us filed a motion to continue the hearing until the discovery-related motion to stay was heard. Ultimately, the motion to dismiss and motion to continue were heard together.

At the hearing, after listening to argument from the parties, the court stated, "I'm taking both motions under advisement and I'm setting [the case] for arbitration." In response to Fountainbleau's objection to the court's decision, the court stated: "I'm going to take everything under advisement and I'm going to send you to arbitration.... Both clients need to show up." The court then confirmed that the arbitration was to address the merits of the case, the jurisdictional issues, and attorneys' fees. On further objection by Fountainbleau, the court reiterated that the arbitrator would decide the jurisdictional challenge as well as the merits of the lawsuit. The September 14, 2018, order rendered by the court comports with the ruling orally pronounced, referring "the entire action to arbitration, including [the] pending motion to dismiss asserting a lack of personal jurisdiction," directing "that the parties themselves" appear in person "at all future hearings," and "otherwise tak[ing] under advisement" the pending motion to dismiss.

Fountainbleau timely filed this petition seeking certiorari review of the order or otherwise requesting appropriate relief. As an initial matter, we conclude that a petition for writ of certiorari is the appropriate mechanism for review. Although the trial court's order requires the parties to attend arbitration, it is not an order determining the "entitlement" of a party to arbitration such that it would be a nonfinal appealable order pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Ebbitt v. Terminix Int'l Co. Ltd. P'ship, 792 So. 2d 1275, 1276 (Fla. 4th DCA 2001) ; cf. Avatar Props., Inc. v. Greetham, 27 So. 3d 764, 765 n.1 (Fla. 2d DCA 2010) (distinguishing Ebbitt where the order on appeal determined a contractual right, i.e., entitlement to arbitration). Similarly, the order is not an appealable nonfinal order determining the court's jurisdiction over Fountainbleau because the order specifically refers the issue of jurisdiction to the arbitrator and otherwise takes the issue "under advisement." See Fla. R. App. P. 9.130(a)(3)(C)(i) ; Frier v. Frier, 13 So. 3d 145, 146 (Fla. 1st DCA 2009) ("To fall within the scope of [ rule 9.130(a)(3)(C)(i) ], ... an order must actually make a determination as to personal jurisdiction."); cf. Blogwire Hungary Szellemi AlkotástHasznosító v. Bollea, 162 So. 3d 1116, 1117 n.2 (Fla. 2d DCA 2015) ("Although the circuit court apparently intended once again to defer a ruling on the jurisdictional aspect of [the] motion to dismiss, the order denying the motion to dismiss does not incorporate such a reservation.... Accordingly, we have jurisdiction to hear this matter under [ rule] 9.130(a)(3)(C)(i)."); Sprint Corp. v. Telimagine, Inc., 923 So. 2d 525, 527-28 (Fla. 2d DCA 2005) ("By exercising jurisdiction over Sprint Corp. when issuing the temporary injunction, the trial court implicitly denied Spring Corp.'s motion to dismiss.").

"Before a court may grant certiorari relief ... the petitioner must establish the following three elements: '(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.' " Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004) ). The latter two elements are jurisdictional, id., and certiorari jurisdiction is established "where an 'order implicates a violation of the parties' constitutional rights which cannot be remedied on plenary review,' " Gundel v. AV Homes, Inc., 264 So. 3d 304, 310 (Fla. 2d DCA 2019) (quoting Rodriguez ex rel. Posso-Rodriguez v. Feinstein, 734 So. 2d 1162, 1163 (Fla. 3d DCA 1999) ). That there exists a mechanism for correcting the error via postjudgment appeal is not determinative of this court's jurisdiction; "rather, the remedy must alleviate the harm that results from the error." Id. at 311 (quoting Gawker Media, LLC v. Bollea, 170 So. 3d 125, 132 (Fla. 2d DCA 2015) ).

Here, the trial court has been asked to determine whether the complaint against a South Carolina corporation and a South Carolina resident alleges sufficient facts to comply with the due process and other constitutional considerations set forth in Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). The material injury which cannot be corrected on plenary review is the trial court's exercise of jurisdiction over Fountainbleau by requiring Fountainbleau to appear and participate in arbitration where the court has not yet determined its jurisdiction over Fountainbleau. If orders deferring consideration of motions to dismiss based on a lack of personal jurisdiction in favor of ordering the entire action to arbitration-including jurisdictional determinations-are not subject to certiorari review, due process rights and rights afforded by section 48.193 are illusory and the policy inherent in subjecting nonresidents to Florida courts' jurisdiction becomes meaningless. See Gundel, 264 So. 3d at 311 (quoting Keck v. Eminisor, 104 So. 3d 359, 365-66 (Fla. 2012) ); cf. Kauffman v. King, 89 So. 2d 24, 26 (Fla. 1956) (granting the petition for writ of certiorari and finding "that it is palpably unjust to require [petitioner] to incur the expense and be subjected to the inconvenience of defending this suit in Da[d]e County and, in the event of an adverse verdict ... to have to spend additional time and money to defend it again in Palm Beach County" such that petitioner's "remedy by appeal is ... inadequate").

Having determined that we have certiorari jurisdiction, we next consider whether the trial court departed from the essential requirements of law when it ordered the parties to arbitrate the case without first determining whether personal jurisdiction over Fountainbleau has been established.

"Personal jurisdiction refers to whether the actions of an individual or business entity as set forth in the applicable statutes permit the court to exercise jurisdiction in a lawsuit brought against the individual or business entity in this state." Borden v. E.-European Ins. Co., 921 So. 2d 587, 591 (Fla. 2006). And personal jurisdiction is "necessary before a defendant, either an individual or business entity, may be compelled to answer a claim brought in a court of law." Id. Section 48.193, Florida's long-arm jurisdiction statute, "defines the parameters by which a trial court may exercise personal jurisdiction over a party who is not a Florida resident." Youssef v. Zaitouni, 241 So. 3d 901, 903 (Fla. 2d DCA 2018). A court's exercise of long-arm jurisdiction outside of the limited circumstances set forth in section 48.193 is a departure from the essential requirements of law. See Kauffman, 89 So. 2d at 26 ("The trial judge departed from the essential requirements of the law in denying to the resident defendants a privilege granted to them by statute[.]"); Citizens Prop. Ins. Corp. v. Trapeo, 136 So. 3d 670, 676 (Fla. 2d DCA 2014) (" 'It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law' that certiorari relief is appropriate." (quoting Kauffman, 89 So. 2d at 26 )).

Courts of this state "simply cannot subvert the statutory requirements or the due process interests that they implicate." Youssef, 241 So. 3d at 903. Those due process interests limit "the State's adjudication authority[,] principally protect[ing] the liberty of the nonresident defendant-not the convenience of plaintiffs or third parties." Estes v. Rodin, 259 So. 3d 183, 192 (Fla. 3d DCA 2018) (quoting Walden v. Fiore, 571 U.S. 277, 284, 134 S.Ct. 1115, 188 L.Ed.2d 12 (2014) ); see also World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ("Due process requires that the defendant ... be subject to the personal jurisdiction of the court." (citing Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945) )); Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So. 2d 1033, 1035 (Fla. 3d DCA 2002) ("The whole point of our jurisdiction and venue laws is not to hale defendants into foreign jurisdictions where they are not seeking affirmative relief."). In that respect, it seems evident that in order to apply and enforce a statute of this state the court must first determine that it has jurisdiction, both subject matter and personal. See Humphrey v. Deutsche Bank Nat'l Tr. Co., 113 So. 3d 1019, 1019 (Fla. 2d DCA 2013) ("[T]he court never secured personal jurisdiction over Humphrey and, thus, had no power over him. That being so, the court had no authority to direct Humphrey to do anything."); cf. Johns v. Taramita, 132 F. Supp. 2d 1021, 1027 (S.D. Fla. 2001) ("[T]he court lacks the power to enforce the agreement because it does not have personal jurisdiction over the respondent.").

"The determination of jurisdictional disputes ... must be made by a court of law." Curtis v. Olson, 837 So. 2d 1155, 1157 (Fla. 1st DCA 2003). "Without jurisdiction, the court cannot proceed at all in any cause. Jurisdiction is [the] power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." Trerice v. Trerice, 250 So. 3d 695, 697 (Fla. 4th DCA 2018) (quoting Griffith v. Fla. Parole & Prob. Comm'n, 485 So. 2d 818, 821 (Fla. 1986) ); see also Springbrook Commons, Ltd. v. Brown, 761 So. 2d 1192, 1194 (Fla. 4th DCA 2000) ("If the court is to exercise its power over a person it must have jurisdiction over that individual."); cf. § 682.181(1), Fla. Stat. (2018) ("A court of this state having jurisdiction over the controversy and the parties may enforce an agreement to arbitrate." (emphasis added)); Kintzele v. J.B. & Sons, Inc., 658 So. 2d 130, 132 (Fla. 1st DCA 1995) ("On questions of arbitrators' 'in personam' jurisdiction, the parties are entitled to judicial interpretation of the pertinent contractual language." (emphasis added)). Thus, before the court could invoke the nonbinding arbitration statute, section 44.103, Florida Statutes (2018), and refer the action to arbitration, it was required to determine that it had personal jurisdiction over Fountainbleau. See Camp Illahee Inv'rs, Inc. v. Blackman, 870 So. 2d 80, 84 (Fla. 2d DCA 2003) ("[B]efore reaching the issue of forum non conveniens under Florida Rule of Civil Procedure 1.061, the trial court was required to first determine whether it had in personam jurisdiction in accordance with the two-prong test." (emphasis added)); La Reunion Francaise, S.A. v. La Costena, 818 So. 2d 657, 659 (Fla. 3d DCA 2002) (concluding that there was no personal jurisdiction over the foreign defendant and therefore no need to reach other issues raised in the motion to dismiss, including the issue of forum non conveniens); cf. CT Miami, LLC v. Samsung Elecs. Latinoamerica Miami, Inc., 201 So. 3d 85, 92 (Fla. 3d DCA 2015) ("Arbitrators have no inherent authority over a dispute or the parties to that dispute ....").

Here, the court's failure to determine its jurisdiction in the first instance is a departure from the requirements of law and is an act in excess of its jurisdiction. Without ruling on the contested jurisdictional issue, the court entered an order which required the exercise of jurisdiction. Accordingly, the petition for writ of certiorari is granted, and the September 14, 2018, order referring the lawsuit to arbitration is quashed.

Petition granted; order quashed.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.

      Although Fountainbleau and Hire Us agree that the court ordered the parties to nonbinding arbitration pursuant to section 44.103, Florida Statutes (2018), the court did not reference the statute or use the phrase "nonbinding arbitration" at any point during the hearing or in the order on review. See § 44.103(2) ("A court, pursuant to rules adopted by the Supreme Court, may refer any contested civil action filed in a circuit or county court to nonbinding arbitration."). Nonetheless, that does appear to be the only possible basis upon which the court could have entered the order as there is no written agreement and the claims raised by Hire Us are not statutorily required to be arbitrated.

      The fact that orders determining personal jurisdiction are reviewable under rule 9.130 as nonfinal appealable orders also supports that determinations of personal jurisdiction must be made prior to any other action or order of the court. See Fla. R. App. P. 9.130(a)(3)(C)(i).


author: ROTHSTEIN-YOUAKIM, Judge.

text:
    Kathleen MADILL, Appellant, v. RIVERCREST COMMUNITY ASSOCIATION, INC., Appellee.
    Case No. 2D18-3265
    District Court of Appeal of Florida, Second District.
    Opinion filed June 7, 2019
    Rolando J. Santiago and Gregory S. Grossman of RJS Law Group, Apollo Beach, for Appellant.
    Charles Evans Glausier and Melissa J. Knight, of Glausier Knight, PLLC, Tampa, for Appellee.
   ROTHSTEIN-YOUAKIM, Judge.

Kathleen Madill appeals from an order denying her amended motion under Florida Rule of Civil Procedure 1.090(b)(2) for an enlargement of time to file a motion for attorney's fees and costs. Because the trial court erred in concluding that Madill had failed to demonstrate excusable neglect, we reverse.

Madill was the prevailing party in a civil suit brought by Rivercrest Community Association, Inc. Pursuant to the governing documents of the Association and to section 720.305(1), Florida Statutes (2017), she was entitled as the prevailing party to recover the attorney's fees and costs incurred in her defense. Because the final judgment was filed on March 14, 2018, Madill had to serve her motion for fees and costs by April 13, 2018. See Fla. R. Civ. P. 1.525 ("Any party seeking a judgment taxing costs, attorney's fees, or both shall serve a motion no later than 30 days after filing of the judgment ... conclud[ing] the action as to that party."). Madill, however, served her motion on May 2, 2018-nineteen days late.

Along with her untimely motion for fees and costs, Madill filed a motion for an enlargement of time pursuant to rule 1.090(b)(2) and affidavits in support. In the motion, Madill's counsel explained that it was his law firm's practice to monitor the court's e-filing portal, known as JAWS, for documents from the court such as the final judgment. The firm, however, had never received notification via JAWS regarding the entry of a final judgment; nor had it received notification via e-service from the Clerk of the Circuit Court. Thus, the firm had been unaware of even the existence of the final judgment until April 30, 2018, when Madill called the firm to say that she had just learned from looking "on-line" that final judgment had been rendered in her favor.

After receiving Madill's call, the firm's support staff had checked all service emails, JAWS, and e-service notifications from the Clerk of the Circuit Court and could not find any notification to the firm that a final judgment had been entered. One of the firm's legal assistants had called the court's JAWS help desk and had been informed that there was no indication that the final judgment had been served via JAWS. The help desk clerk also had checked her "notes and history" and had found nothing to indicate that the final judgment had been served on the firm.

Upon further investigation, another attorney with the firm-who was listed as one of the attorneys of record but "had not worked on the litigation phase of [Madill's] case"-discovered that he had received a copy of the final judgment as an attachment to an email from the judge's judicial assistant (JA). The email looked like this:

In his affidavit, the attorney explained: "[O]ur firm relies on [JAWS] and the Clerk's Electronic-Service systems for receipt of court documents, pleadings, and orders. We do not expect to receive court documents directly from a Court's Judicial Assistant." The attorney acknowledged that he must have seen the email when it had come in, but because the email lacked the formalities prescribed in Florida Rule of Judicial Administration 2.516, and did not otherwise indicate that it was in regard to the final judgment and because he had not been involved in the litigation phase, he "must have glossed over it and ... failed to open the attachment or forward it to [Madill's counsel]."

In its order denying the motion for an enlargement of time, the trial court stated:

Whether or not [the attorney to whom the JA's email was addressed] was involved in the litigation phase of the case is immaterial to his conduct. [The attorney] is designated as one of two attorneys of record for the defendant in the Notice of Appearance .... The court finds that [the attorney] "glossing over" an email from the court and failing to open the attachment to the email pertaining to a pending case of which he is attorney of record is inexcusable. Moreover, to the extent the Court's email attaching a copy of the Final Judgment did not conform to the requirements of Rule 2.516 as Defendant asserts, the court finds that it does not negate Defendant's responsibility to file a timely motion. Subsection (h) of rule 2.516 specifically applies to "Service of Orders" and section (h)(3) provides that the "subdivision is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action."

Accordingly, the trial court concluded that Madill had failed to demonstrate excusable neglect, denied the motion for an enlargement of time, and denied Madill's motion for attorney's fees and costs as untimely.

Analysis

In general, "excusable neglect 'contemplate[s] that the courts would be permitted, where appropriate, to accept late filings caused by inadvertence, mistake, or carelessness, as well as by intervening circumstances beyond the party's control.' " Carter v. Lake County, 840 So. 2d 1153, 1157-58 (Fla. 5th DCA 2003) (alteration in original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993), and rejecting a "more stringent excusable neglect standard for rule 1.090(b)").

The determination of whether the failure to abide by a specified time limit constitutes excusable neglect is in essence an equitable one which should take into account all of the relevant circumstances, including prejudice to the other party, the reason for the delay, the duration of the delay, and whether the movant acted in good faith.

Boudot v. Boudot, 925 So. 2d 409, 416 (Fla. 5th DCA 2006) (citing Pioneer Inv. Servs., 507 U.S. at 395, 113 S.Ct. 1489 ).

"[E]xcusable neglect cannot be based upon an attorney's misunderstanding or ignorance of the law ...." Lyn v. Lyn, 884 So. 2d 181, 185 (Fla. 2d DCA 2004) (affirming the denial of an untimely motion for enlargement because the delay in filing the motion for attorney's fees was caused by "her counsel's misunderstanding or lack of knowledge of the requirements of rule 1.525"); see also Hovercraft of S. Fla., LLC v. Reynolds, 211 So. 3d 1073, 1077-78 (Fla. 5th DCA 2017) (reversing the trial court's order granting an untimely motion for an enlargement of time to file a motion for attorney's fees because the failure to timely file the motion for fees was due to counsel's misapprehension that the motion for rehearing tolled the time for filing it). Rather, "courts are inclined to find excusable neglect 'when the error occurs due to a breakdown in the mechanical or operational practices of the attorney's office equipment or staff.' " Hovercraft, 211 So. 3d at 1077 (quoting Boudot, 925 So. 2d at 416 ); see also Elliott v. Aurora Loan Servs., LLC, 31 So. 3d 304, 307 (Fla. 4th DCA 2010) ("Excusable neglect is found 'where inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry[,] or any other of the foibles to which human nature is heir.' " (quoting Somero v. Hendry Gen. Hosp., 467 So. 2d 1103, 1106 (Fla. 4th DCA 1985) )).

In this case, it is troubling regardless of the extent of his actual involvement that an attorney who was listed as counsel of record likely saw the JA's email but "glossed over it." It goes without saying that attorneys who neglect to open case-related emails-even facially ambiguous ones-sent directly to them by the court do so at their own peril. But in simply concluding that the attorney's conduct in this case was "inexcusable," the trial court failed to take all of the relevant circumstances into account. See Boudot, 925 So. 2d at 416. The law firm had a tracking system for court orders in place, and pursuant to that system, both the paralegal and the legal assistant regularly reviewed emails from the Clerk of the Circuit Court and looked for notifications from the JAWS system; they reasonably did not expect to be notified of the final judgment from a different source. Moreover, Rivercrest Community Association, Inc. asserted no prejudice, Madill's counsel filed the motions for fees and costs and for an enlargement of time immediately upon realizing what had happened, and there is no indication of bad faith. There's no question that the attorney's oversight was the result of careless human error. But absent something more, that's exactly what excusable neglect is.

We hold, therefore, that the trial court abused its discretion by denying Madill's motion for an enlargement of time due to excusable neglect. Accordingly, we reverse the order denying Madill's motion for an enlargement of time and remand for consideration of Madill's motion for attorney's fees and costs.

Reversed and remanded for further proceedings.

VILLANTI and LUCAS, JJ., Concur.

      The final judgment was signed on March 13, 2018, was date stamped by the Clerk on March 14, 2018, and was recorded on March 22, 2018.

      Madill filed an amended motion for an enlargement of time as the firm's investigation into the matter progressed.


author: VILLANTI, Judge.

text:
    Ryan Matthew TRITSCHLER, Appellant, v. Holly Marie TRITSCHLER, Appellee.
    Case No. 2D18-761
    District Court of Appeal of Florida, Second District.
    Opinion filed June 7, 2019
    Casey C. Harrison and Andra T. Dreyfus of Dreyfus Harrison, P.A., Clearwater, for Appellant.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   VILLANTI, Judge.

Ryan Matthew Tritschler (the Husband) appeals the final judgment of dissolution of his marriage to Holly Marie Tritschler (the Wife), raising issues with multiple aspects of that judgment. Because numerous errors underlie the equitable distribution scheme, the award of alimony, and the award of child support, we must reverse those awards and remand for further proceedings. We also direct the trial court to strike certain factual findings underlying the parenting plan. In all other respects, we affirm the final judgment of dissolution.

Background

The parties had been married for thirteen years when the Wife filed her petition for dissolution in 2012. They had two children, one born in 2000 and the other in 2002. After significant pretrial proceedings, the court conducted a two-day bench trial in late 2017. At the bench trial, the Wife introduced numerous documents concerning the parties' finances, and both she and the Husband testified as to their marital and nonmarital assets and liabilities. In addition, the Wife called her forensic accountant to testify as to the value of certain financial accounts and assets. The court also accepted into evidence a report prepared by her accountant, in which he valued what he identified as marital assets and liabilities and in which he proposed an equitable distribution scheme that resulted in a large equalizing payment to the Wife.

After the bench trial, both parties submitted proposed findings of fact and proposed final judgments. The trial court ultimately entered a final judgment that adopted some, but not all, of the accountant's valuations. The court set forth an equitable distribution scheme, awarded the Wife permanent periodic alimony, awarded child support, and established a parenting plan. The Husband now appeals various aspects of this final judgment, contending that there are numerous errors in the various awards that should be corrected. We agree and therefore reverse and remand for further proceedings as explained below.

Equitable Distribution

The Husband first contends that the equitable distribution scheme is not supported by the evidence presented at the bench trial and does not comply with the requirements of section 61.075(3), Florida Statutes (2017), because it does not identify and properly value all of the parties' marital and nonmarital assets and liabilities. And the record clearly shows that the Husband is correct.

Section 61.075(3) provides, in pertinent part:

In any contested dissolution action wherein a stipulation and agreement has not been entered and filed, any distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence with reference to the factors enumerated in subsection (1). The distribution of all marital assets and marital liabilities, whether equal or unequal, shall include specific written findings of fact as to the following:
(a) Clear identification of nonmarital assets and ownership interests;
(b) Identification of marital assets, including the individual valuation of significant assets, and designation of which spouse shall be entitled to each asset;
(c) Identification of the marital liabilities and designation of which spouse shall be responsible for each liability;
(d) Any other findings necessary to advise the parties or the reviewing court of the trial court's rationale for the distribution of marital assets and allocation of liabilities.

A final judgment that fails to identify and value all of the parties' marital assets and liabilities and that fails to distribute them equitably between the parties must be reversed. See, e.g., Keurst v. Keurst, 202 So. 3d 123, 127 (Fla. 2d DCA 2016) ; Heiny v. Heiny, 113 So. 3d 897, 901-02 (Fla. 2d DCA 2013) ; Pignataro v. Rutledge, 841 So. 2d 636, 638 (Fla. 2d DCA 2003) (quoting Prest v. Tracy, 749 So. 2d 538, 538-39 (Fla. 2d DCA 2000) ).

Here, the final judgment contains what purports to be a valuation of the parties' marital assets and liabilities in paragraph 23. It then purports to distribute those assets and liabilities in paragraphs 24 and 25. However, a review of those paragraphs shows that the court distributed assets in paragraphs 24 and 25 that are not actually identified in paragraph 23. For instance, paragraph 24 distributes a 2013 Ford Explorer to the Wife. That asset is not identified as a marital asset in paragraph 23, it is not valued anywhere in the final judgment, and the loan on that vehicle (to which both parties testified) is neither identified nor distributed. Similarly, paragraph 25 distributes a Ford F150 truck to the Husband that is neither identified nor valued in paragraph 23. Further, while paragraph 24 distributes half of the equity in the marital residence to the Wife, the other half of the equity is not distributed to anyone. Similarly, paragraph 24 distributes half of the Wife's bank account to her, but the other half is not distributed to anyone. Likewise, paragraph 24 generically distributes "jewelry" to the Wife without identifying or valuing any of it. Finally, nowhere does the judgment purport to identify any of the parties' nonmarital assets even though there was evidence presented at the hearing that at least a portion of the Husband's Thrift Savings Plan was accrued before the marriage. These errors, apparent on the face of the judgment, require reversal of the equitable distribution scheme.

In this appeal, the Wife contends that these errors were cured because the trial court attached her accountant's worksheet to the final judgment as an exhibit. However, that attachment simply created more problems because the final judgment and the accountant's exhibit conflict in several ways. For example, the accountant's exhibit values the marital residence at $ 225,000 and sets the debt on it at $ 206,429-a figure supported by no evidence in the record-leaving the parties with $ 18,571 in equity. The final judgment, however, values the marital residence at $ 255,000 and the debt at $ 188,335, leaving the parties with $ 66,665 in equity. While the trial court purported to equally distribute the equity between the parties based on its own figures, it nevertheless adopted the accountant's equalizing payment, which was based on his different figures. Hence, despite nominally equitably distributing the equity in the marital residence, the trial court did not, in fact, do so.

Similarly, the final judgment values the parties' joint checking account at $ 35,206 as of the date of the hearing; however, the accountant valued it at $ 152,000 as of the date the petition was filed, and he divided it unequally based on what the parties had previously withdrawn. Again, the trial court appears to have rejected the accountant's valuation of the asset, but it nevertheless adopted the accountant's equalizing payment that was based on different figures.

Not only did these conflicts between the final judgment and the accountant's report result in the award of an improper equalizing payment, they create conflict on the face of the judgment. Therefore, on remand, the trial court must ensure that its valuations are supported by evidence in the record or otherwise reconcile its figures with those of the accountant. See Pinder v. Pinder, 750 So. 2d 651, 652 n.2 (Fla. 2d DCA 1999). Moreover, the trial court must identify all of the parties' marital and nonmarital assets and liabilities, value all of the marital assets and liabilities, distribute all of the marital assets and liabilities, and then calculate a proper equalizing payment.

In addition to the identification and valuation issue, the Husband also contends that the trial court abused its discretion in creating the equitable distribution scheme by using different valuation dates for different assets without any explanation. This argument is also correct.

Section 61.075(7) provides:

The cut-off date for determining assets and liabilities to be identified or classified as marital assets and liabilities is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. The date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances. Different assets may be valued as of different dates, as, in the judge's discretion, the circumstances require.

(Emphasis added.) This statute sets a bright line for determining what assets are marital and nonmarital-either the date of entering into a valid separation agreement or the date of filing a petition for dissolution of marriage. See Byers v. Byers, 910 So. 2d 336, 344 (Fla. 4th DCA 2005). However, the statute permits the trial court to thereafter value the individual marital assets as of different dates as long as the court's decision to do so is supported by findings that show it was equitable under the circumstances. Id. at 344-45 ("The discretion given to trial courts arises after the assets and liabilities are characterized as marital or non-marital."). Despite this discretion as to the date of valuation, however, this court has explained that "it is an abuse of discretion to use different valuation dates for similarly situated assets resulting in values favoring one party over the other without explanation or record evidence to justify the different treatment." Struble v. Struble, 787 So. 2d 48, 50 (Fla. 2d DCA 2001) (citing Hicks v. Hicks, 580 So. 2d 876 (Fla. 2d DCA 1991) ).

Here, the petition of dissolution was filed on July 17, 2012. Since the parties never entered into a valid separation agreement, the plain language of section 61.075(7) required the trial court to identify the parties' marital assets and liabilities as of that date. The court had no discretion to select a different date for identifying which of the parties' assets and liabilities were marital. However, once the court identified the marital assets, it had discretion to determine the date upon which to value those assets as long as the valuation date was justified and supported by findings that established that the date of valuation was equitable.

The problem here is that the trial court did not identify a valuation date for the parties' marital assets in the final judgment and that the Wife's accountant used a variety of valuation dates for the various assets. For example, the trial court valued the parties' "joint bank account" at $ 35,206; however, there was no evidence as to the date on which this value was determined. The Husband's Schwab investment account was valued as of September 2017-a date not used to value any other assets-and there was no explanation as to why that date was selected other than that it was what the accountant happened to use in preparing his report. Moreover, the trial court made no findings as to why the September 2017 date was proper and equitable, especially given the Husband's multiple postpetition contributions to this account. See, e.g., Willman v. Willman, 944 So. 2d 1151, 1151 (Fla. 1st DCA 2006) (noting that husband's pension plan continued as a marital asset only until the petition was filed); Moon v. Moon, 594 So. 2d 819, 822 (Fla. 1st DCA 1992) (noting that portions of a marital account acquired after separation may be nonmarital). The court's use of multiple valuation dates for different assets without explanation requires us to reverse the equitable distribution scheme for this reason as well.

This combination of errors in the equitable distribution scheme has rendered it anything but equitable. It does not identify all of the parties' assets and liabilities as of the date of filing, it does not classify all of them as marital or nonmarital as of the filing date, and it does not value the marital assets and liabilities as of either a consistent date or inconsistent dates that are equitable under the circumstances. These errors have resulted in the trial court's counting the Wife's postfiling income as her nonmarital property while counting the Husband's postfiling income as marital. It has also resulted in the trial court distributing nonmarital assets as marital assets and "creating" marital assets that did not exist on the date of filing. And, as the Husband points out, it may have resulted in double-counting of certain assets. Therefore, we must reverse the equitable distribution scheme in toto. On remand, the trial court must devise a proper equitable distribution scheme that complies with all of the requirements of section 61.075 and that is supported by proper factual findings based on record evidence.

Alimony

Next, the Husband contends that there are several errors relating to the alimony award that require it to be reversed and reconsidered on remand. We agree.

First, the Husband contends that the trial court erred in calculating the alimony award by using the parties' gross incomes rather than their net incomes. This contention is correct.

Section 61.08(2) requires that any award of alimony be based on one party's need for alimony and the other party's ability to pay. In determining both need and ability to pay, the trial court must consider only the parties' net incomes. See, e.g., Hanson v. Hanson, 217 So. 3d 1165, 1166 (Fla. 2d DCA 2017) ; Moore v. Moore, 157 So. 3d 435, 436 (Fla. 2d DCA 2015) ("An award of alimony must be based on the income that is available to the party, i.e., the party's net monthly income."); 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."). An alimony award based on the parties' respective gross incomes must be reversed. See, e.g., Moore, 157 So. 3d at 437 ; Badgley, 165 So. 3d at 744-45.

Here, paragraph 30 of the final judgment plainly states that the Husband has an income of $ 10,819.38 per month while the Wife is earning $ 6894.52 per month. Notably, these are the parties' respective gross income figures from their financial affidavits, as the trial court itself recognized in paragraph 19 of the final judgment, where it identified certain mandatory deductions from the Husband's gross income of $ 10,819.38. Nevertheless, the trial court awarded the Wife $ 2000 per month in permanent periodic alimony without ever identifying or calculating either party's net income. Further, we note that the $ 2000 monthly alimony award is almost exactly the amount needed to simply equalize the parties' gross incomes. Hence, it is readily apparent from the face of the final judgment that the trial court erroneously failed to consider either party's net income rather than gross income when fashioning its alimony award. This error, standing alone, requires the alimony award to be reversed.

In addition, the Husband points to an error on the face of the judgment as it relates to alimony in that the judgment does not identify the time and manner for termination of alimony. The Wife concedes that this is an error that needs to be corrected. We also agree with the Husband that the language in the judgment should be clarified as to the trial court's intent regarding credit to the Husband for alimony payments made before the Income Deduction Order became effective.

In sum, we reverse the alimony award in toto and remand for further proceedings. On remand, the trial court must reconsider the alimony award using the parties' respective net incomes and taking additional evidence if necessary on the parties' current incomes. If the court again awards alimony, it must make factual findings concerning all of the factors identified in section 61.08(2) and these findings must be supported by the evidence actually presented to the court. Further, the court must identify the time and manner for termination of alimony and should clarify its intent as to the credits to which the Husband is entitled for payments made before the Income Deduction Order went into effect.

Child Support

Next, the Husband contends that the provisions of the final judgment concerning child support are facially erroneous because they do not include a provision for step-down of the child support amount in violation of section 61.13(1)(a)(1)(a). While the Wife agrees that the final judgment does not contain such a provision, she does not agree that reversal is required; instead, she contends that we should simply remand with instructions for the trial court to add such a provision. Nevertheless, reversal is required in order for the trial court to include this statutorily mandated provision. See Henderson v. Henderson, 162 So. 3d 203, 207-08 (Fla. 5th DCA 2015).

The Husband also contends that the trial court erred in awarding child support without calculating the amount of each parties' overnights with the children as provided by sections 61.30(1)(a) and (11)(b). Further, he contends that the trial court erred by crediting him with an improper amount for the cost of medical and dental insurance for the children. Both of these points appear from the record to have merit, and they are not contested by the Wife in her brief. Therefore, the trial court should reconsider the child support award in light of the record evidence on remand. Finally, as with the alimony award, the court must clarify its intent regarding credit to the Husband for child support payments made before the Income Deduction Order became effective.

Parenting Plan

Finally, the Husband contends that the final judgment contains factual findings that are not supported by the evidence and that may have played a role in the trial court's decision concerning the parenting plan. The Husband is correct that the final judgment contains, in paragraph 26, factual findings that are not supported by any evidence admitted at the hearing or during the children's in camera testimony. It is unclear where these findings came from given the utter lack of any testimony at all concerning the incident in question; however, given that the final judgment contains extensive factual findings concerning the Wife's breast cancer treatment that are also not based on evidence presented at the hearing, we suspect that the findings came from the Wife's proposed final judgment. Notably, the Wife does not contend that the factual findings that allegedly support the parenting plan are supported by evidence presented at the hearing. Therefore, on remand, these factual findings should be stricken.

The Husband seems to contend that the trial court must have impermissibly considered these factual findings in reaching its decision concerning the parenting plan, but he does not ask for the parenting plan itself to be reversed. Further, given that the child at issue is no longer a minor, any such relief would be moot. Accordingly, while the unsupported factual findings concerning the Husband's interaction with the parties' older child must be stricken from the final judgment, we need not reverse the parenting plan.

Conclusion

As this case demonstrates, trial courts must remember that while a party's expert may aspire to be above favoring their employer, they rarely succeed. Trial courts must also remember that expert witnesses are rarely well-versed in the court's statutory obligations and so their reports may not provide information suitable for the trial court to adopt. For both of these reasons, trial courts must ensure that they are examining all of the evidence presented by the parties rather than relying solely on that provided by one party's expert. For their part, attorneys have an obligation to introduce the evidence that the court needs to discharge its duties, and they should be cautious about expecting an expert to prove their case for them. Rarely, if ever, will it be appropriate for a trial court to simply adopt one party's expert report as its own.

In sum, we reverse the equitable distribution scheme, the alimony award, and the child support awards contained in the final judgment of dissolution and remand for further proceedings in accordance with this opinion. We also direct that the factual findings concerning the Husband's interactions with the parties' older child be stricken as they are not supported by any evidence. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings.

SLEET and SALARIO, JJ., Concur.

      The Husband did not argue in this appeal that the court's extensive factual findings concerning the Wife's breast cancer treatment are not supported by the evidence. Nevertheless, our review of the record makes clear that while the Wife did testify as to some aspects of her breast cancer treatment, there are numerous other "facts" about the Wife's treatment that are included in the final judgment despite there being no testimony at the bench trial to support them. Because the Husband did not raise this issue on appeal, we do not further address these unsupported factual findings. Nevertheless, we caution the court on remand to ensure that any factual findings included in the final judgment are supported by evidence presented at the bench trial and any further proceedings it elects to hold.


author: Per Curiam.

text:
    Patrick SMITH, Appellant, v. Caitlyn SMITH, n/k/a Caitlin Cleveland, Appellee.
    No. 1D18-2771
    District Court of Appeal of Florida, First District.
    June 7, 2019
    John M. Merrett, Jacksonville, for Appellant.
    Chanda L. Rogers of Faltemier Rogers, PLLC, Fernandina Beach, for Appellee.
   Per Curiam.

Patrick Smith (the father) challenges an order requiring him to pay nearly $ 40,000 in retroactive child support to Caitlyn Cleveland (the mother). He also challenges the trial court's related attorney's-fee order. We affirm.

I.

The parties married, had two children, and later divorced. The consent final judgment of dissolution granted the mother majority timesharing and set the father's child support at $ 1100 per month. This amount was a "substantial deviation" from the statutory guidelines, with the judgment explaining "[s]aid deviation is justified by the [father's] payment for 100 percent of the transportation costs for his visitation." (The father lived in Florida; the final judgment authorized the mother to move out of state, where she had obtained employment.)

In 2018, the mother filed a supplemental petition seeking a timesharing modification and a retroactive child-support adjustment. The petition alleged that the father failed to exercise most of his timesharing and therefore never utilized the transportation credit the final judgment anticipated. The father counter-petitioned, seeking majority timesharing.

While the petitions were pending, the mother filed a "Verified Motion to Suspend [Father's] Summer Timesharing Pending Further Court Order and Request for Expedited Relief." In the motion, the mother sought to modify the summer timesharing and to "establish a child support arrearage based on [the father's] credit for transportation for visitation he did not exercise." The court held an evidentiary hearing on the mother's motion, during which the father acknowledged he had exercised only a fraction of his timesharing. Later in the hearing, the court said that some "financial adjustment" needed to be made based on the father's lack of timesharing.

The court entered an order on the mother's motion. The court found that, based on his lack of timesharing, the father had underpaid his child support since the entry of the consent final judgment. The court used the father's then-current financial affidavit to find that he had the ability to pay more child support. The court looked to the child-support guidelines to determine the amount the father would have paid had he not been given the credit for transportation costs. The court then entered a $ 39,612.30 retroactive child-support award and ordered the father to pay that over time. The court also ordered the father to pay $ 3000 in attorney's fees.

II.

The father now raises three issues. First, he argues that the court did not have authority to enter the retroactive child-support award because the court entered its order on the mother's motion rather than her supplemental petition. Second, he argues that the court abused its discretion in entering the retroactive award. And third, he argues that the court abused its discretion by awarding attorney's fees.

A.

As to his first issue, the father correctly notes that the Florida Family Law Rules of Procedure require that a request to modify a final judgment be initiated through a supplemental petition rather than a motion. See Fla. Fam. L. R. P. 12.110(h) ; see also Thomas v. Harris , 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) ("A court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced."). But here, the retroactive adjustment was raised in the mother's petition. The father was on notice that the issue was before the court, and to the extent he now argues that only the motion and not the petition was noticed for the hearing, he has not preserved that argument for appeal. Cf. Bryan v. Bryan , 765 So. 2d 829, 831 (Fla. 1st DCA 2000) (concluding that issue not raised in petition was nonetheless tried by consent); Fla. Fam. L. R. P. 12.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they will be treated in all respects as if they had been raised in the pleadings.").

B.

The father's second argument fails too. The court did not abuse its discretion in establishing the retroactive award. Before a court can modify child support, it must first find a substantial change in the circumstances. See Van Looven v. Van Looven , 100 So. 3d 148, 149 (Fla. 1st DCA 2012). In this case, section 61.30, Florida Statutes, supports the conclusion that there was a substantial change in circumstances:

A parent's failure to regularly exercise the time-sharing schedule set forth in the parenting plan, a court-ordered time-sharing schedule, or a time-sharing arrangement exercised by agreement of the parties not caused by the other parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10 or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award.

§ 61.30(11)(c), Fla. Stat. This section governs here. The final judgment provided for a deviation from the guidelines pursuant to subparagraph (a)10., and the court held that the father failed to regularly exercise his timesharing. Thus, the court did not need to make a further, explicit finding that there had been a substantial change in circumstances.

Next, the court needed to determine a starting date for the retroactive child-support obligation. The father correctly notes that modifications are generally retroactive to the date of the supplemental petition. See Miles v. Champlin , 805 So. 2d 1085, 1087 (Fla. 1st DCA 2002). But section 61.30(11)(c) provides an exception to that general rule, allowing retroactivity "to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed time-sharing schedule." In this case, the court determined that the father never regularly exercised his timesharing. The parties' testimony supported this determination.

Finally, the court properly utilized the child-support guidelines to calculate how much the father would have paid without considering transportation costs. The court also found that the father had the ability to pay that amount based on his current financial affidavit. We find no abuse of discretion.

C.

Last, we affirm as to the attorney's fees because the asserted error was not raised through a rehearing motion. "[W]here an error by the court appears for the first time on the face of a final order, a party must alert the court of the error via a motion for rehearing or some other appropriate motion in order to preserve it for appeal." Williams v. Williams , 152 So. 3d 702, 704 (Fla. 1st DCA 2014).

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Darrell WARD, DOC #265206, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3380
    District Court of Appeal of Florida, Second District.
    Opinion filed June 12, 2019
    Howard L. Dimmig, II, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Chief Judge.

Darrell Ward appeals his judgment and sentence for burglary of a structure, a third-degree felony. See § 810.02(4)(a), Fla. Stat. (2015). The trial court sentenced him to thirteen years' imprisonment, with a ten-year mandatory minimum as a violent career criminal. See § 775.084(4)(d), Fla. Stat. (2015). The trial court also entered a restitution order nearly a year before trial. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We affirm Mr. Ward's judgment and sentence without further comment; we remand for the trial court to strike the restitution order.

During the pendency of this appeal, Mr. Ward moved to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the restitution order should be stricken because the order preceded his conviction and the prosecutor did not request restitution at the sentencing hearing. The State explained that the parties discussed restitution at a pretrial hearing but that the trial court did not order restitution. It is also apparent the trial court did not impose restitution at the sentencing hearing.

The trial court correctly granted the motion and ordered the clerk to strike the restitution order. Cf. Hollins v. State, 881 So. 2d 86, 87 (Fla. 5th DCA 2004) ("Restitution is a mandated part of sentencing and must be imposed at the time of sentencing or within sixty days thereafter."); cf. also Socorro v. State, 901 So. 2d 940, 941 (Fla. 5th DCA 2005) ("Prior to ordering restitution, a trial court must determine that: (1) the damage or loss for which restitution is ordered was caused directly or indirectly by defendant's offense; and (2) there is a significant relationship between the damage to the victim and the crime proved." (emphasis added)). The record reflects no subsequent action by the clerk. The State concedes that remand is appropriate.

We affirm Mr. Ward's judgment and sentence. We remand for the trial court to enter an order directing the clerk to strike the August 30, 2016, restitution order.

Affirmed and remanded with directions.

KHOUZAM and SLEET, JJ., Concur.