author: SALTER, J.

text:
    CAT CAY YACHT CLUB, INC., et al., Petitioners, v. Manuel C. DIAZ, et al., Respondents.
    No. 3D18-2368
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Akerman LLP, and Gerald B. Cope, Jr., and Michael B. Chavies ; Marko & Magolnick, P.A., and Joel S. Magolnick, and Veronica M. Rabinowitz, for petitioners.
    Kozyak Tropin & Throckmorton, LLP, and Dyanne E. Feinberg, Javier A. Lopez, and Stephanie M. Gomez, for respondent Manuel C. Diaz.
    Before SALTER, LOGUE and LINDSEY, JJ.
   SALTER, J.

Cat Cay Yacht Club, Inc. ("CCYC"), and fourteen current and former members of CCYC's board of directors (collectively, the "Director Defendants"), petition the Court to issue a writ of certiorari quashing a circuit court order granting a motion by Manuel C. Diaz ("Diaz") for leave to file a fifth amended complaint adding claims for punitive damages to his lawsuit. The underlying lawsuit, commenced in 2012, involves allegedly improper actions taken to oust Mr. Diaz from a private social and recreational club in the Bahamas.

Concluding that the order authorizing amendment to add claims for punitive damages (a) departs from the essential requirements of the applicable Florida statute and controlling precedent and (b) is not a matter adequately remediable in a subsequent, plenary appeal, we grant the petition and quash the order.

Background and Pertinent Facts

Diaz, his wife, and his family have visited the island of Cat Cay in the Bahamas, and fished in the surrounding waters, for some forty years. As their interest in the island and CCYC grew, Diaz joined CCYC (initially as a summer member), and purchased an oceanfront home, vacant lots, and a dock at the Cat Cay Marina. Later he built several oceanfront homes or villas on the island.

CCYC is a Florida corporation organized under the Florida Not For Profit Corporation Act, section 617.01011, et seq., Florida Statutes (2018). CCYC's bylaws "may contain any provision for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation." § 617.0206, Fla. Stat. (2018).

Diaz's fifth amended complaint alleges that he contributed funds and services to CCYC over a course of years, including charitable fundraising to restore island facilities after Hurricane Andrew in 1992 and later storms. He served as president of CCYC for several years. Following the election of one of the defendants to the office of president in 2009, however, Diaz alleges that various disputes arose. These issues percolated by 2011 into a "scheme to justify the firing of [CCYC's then manager] and the expulsion of Diaz from CCYC," according to Diaz.

Diaz alleges that this scheme was then executed in the form of a faulty audit of accounts (by a CPA from an independent accounting firm), defamatory comments by the Director Defendants, and the CCYC board's unanimous vote to expel Diaz as a member of CCYC in February 2012. Diaz's expulsion occurred pursuant to a board resolution reciting that Diaz had engaged in "actions prejudicial to the Club" and rendering him "undesirable as a Member," grounds for expulsion under Section 2.20 of the CCYC bylaws.

In May 2012, an appellate committee of the board denied Diaz's appeal from the expulsion resolution. All of these actions, Diaz maintains, were undertaken by CCYC and the Director Defendants "in bad faith and with malicious purpose, in a manner exhibiting a willful disregard of Diaz's rights and property rights." In January 2014, Diaz filed his initial "Verified Complaint for Damages and Equitable Relief" seeking money damages (including treble damages for certain claims), a mandatory injunction restoring his membership in CCYC, an accounting, punitive damages "upon a proper showing under Florida law," and other relief.

The complaint was dismissed and the injunctive claim was dismissed with prejudice by a predecessor judge. Amendments and additional dismissals followed, with Diaz ultimately moving to amend his fourth amended complaint to add the claims for punitive damages.

During the trial court hearing on the proposed amendment and the alleged basis for punitive damages, the trial court stated that CCYC and the Director Defendants had not "challenged the evidence," and the court entered no written findings identifying any evidence considered to constitute a "reasonable basis" ( section 768.72(1) ) for the recovery of punitive damages. The order granted the motion to amend without elaboration, and without any differentiation among CCYC and any of the fourteen Director Defendants. The petition for certiorari followed.

Analysis

To obtain relief in this case, the petitioners must establish that the trial court departed from the essential requirements of law, causing material injury to the petitioners for which there is no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 95 (Fla. 1995). Review of an order granting a motion to amend to add a punitive damages claim requires us to consider "whether a trial judge has conformed with the procedural requirements of section 768.72...", but the scope of review is "not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry." Globe Newspaper Co. v. King, 658 So.2d 518, 519 (Fla. 1995).

We consider in turn: (1) the conduct of the trial court's hearing inquiring into the "reasonable basis for recovery of such damages"; and (2) the legal impediments to claims for punitive damages in the case at hand.

(1) Conduct of the Hearing; Ruling

A review of the transcript of the hearing on Diaz's motion to amend discloses that counsel for the parties provided the trial court with a "whole box" of documents relating to Diaz's motion to amend. The crux of the fourth amended complaint and the seven counts within it is the expulsion of Diaz from the social club, CCYC, based on his disagreement with the board's decision to fire a general manager and on "credits" claimed by Diaz for landscaping and other contributions of services in lieu of cash contributions or payments. The Director Defendants, like Diaz himself, were highly-successful and financially prosperous individuals with, the pretrial discovery makes clear, strong opinions they were not reluctant to express.

In the language of the motion to amend and much of the hearing, this is styled a "witch-hunt" against Diaz based on a motto to "expel first and ask questions later." A board member/defendant is said to have wanted to control the island of Cat Cay and to have called other members "spoiled brats and little wimps." It is also argued that documents mysteriously disappeared.

Following the board's decision to expel Diaz from membership in CCYC, the appeal board constituted pursuant to the club by-laws "rubber stamped" the board action. Allegedly the board also moved the location for burning the island's trash to a location next to Diaz's property, causing the property to become unsaleable and Diaz to incur substantial financial losses.

Although the trial court asked several questions, it made no findings identifying the evidence it considered sufficient to provide a statutory "reasonable basis" for granting the motion to amend. The court did not do so during the course of the hearing or in the pre-printed form order with the handwritten, one-word notation, "Granted" after identifying the motion to amend. In a seven count fourth amended complaint, with "a box" of pretrial evidence presented, and fifteen separate defendants, this procedure was a departure from applicable law. Fetlar, LLC v. Suarez, 230 So.3d 97, 99 (Fla. 3d DCA 2017). Bare allegations are insufficient to support a punitive damages claim. Espirito Santo Bank v. Rego, 990 So.2d 1088, 1090 (Fla. 3d DCA 2007).

The hearing, argument of counsel, and colloquy in the present case stand in sharp contrast to the procedure detailed in our recent opinion denying certiorari to quash an order allowing a punitive damages amendment:

[Plaintiff's] motion to amend contained a detailed table outlining the record evidence and sworn declarations that provided the basis for his punitive damages claim. Moreover, the trial court conducted two hearings on the motion and requested supplemental memoranda as to the evidentiary basis for punitive damages against the corporate defendants. Further, [defendants] presented their arguments against [plaintiff's] motion to amend in their written opposition, during both hearings, and in their response to [plaintiff's] court-ordered supplemental memorandum. It is also clear from the record that the trial court applied the correct law. The court, in its order granting the motion to amend, found-based on [plaintiff's] motion, the supplemental memoranda, and the arguments presented during the two hearings-that [plaintiff] "made the requisite showing by evidence in the record or proffered by plaintiff that would support a reasonable basis for recovery of punitive damages as required by Fla. Stat. § 768.72 against defendants ...."

Levin v. Pritchard, 258 So. 3d 545, 547-48 (Fla. 3d DCA 2018).

(2) Legal Impediments Unaddressed by Diaz

The trial court apparently did not consider during the hearing or address in its order the legal insufficiency issues raised by CCYC and the Director Defendants. Specifically, Florida law ordinarily defers to the right of social organizations to regulate their own membership and rules for expulsion. See, e.g., Everglades Protective Syndicate, Inc. v. Makinney, 391 So.2d 262, 266 (Fla. 4th DCA 1980) ("Neither due process nor concepts of fundamental fairness compel the conclusion that an individual is entitled to the association of one or more other individuals against their will.")

Diaz's claims for reversal of the expulsion and reinstatement to membership were dismissed by a predecessor judge in 2014. That being so, the consequences of expulsion were not untangled from Diaz's other claims-interference with property rights, for example-for purposes of the amendment seeking punitive damages. Artful pleading after numerous amendments is not necessarily curative.

The denial of a motion to dismiss subsequently rewritten allegations is not a green light to add punitive damage claims without following the procedure mandated by section 768.72 (in which the legislature expressly required a more rigorous assessment).

Diaz is correct that the member of a voluntary association is entitled to legal protection when the member's contractual or property rights, and not merely continued membership, are harmed, citing McCune v. Wilson, 237 So.2d 169 (Fla. 1970). What remains unclear is the naked allegation that expulsion somehow caused a forfeiture of Diaz's equity shares in CCYC or rendered his real estate unsaleable or less valuable. The bylaws say otherwise. The statutory procedure obligates a trial court to do more than just accept allegations as true. Bistline v. Rogers, 215 So.3d 607, 610 (Fla. 4th DCA 2017). See also Fla. Hosp. Med. Servs., LLC v. Newsholme, 255 So.3d 348 (Fla. 4th DCA 2018).

Second, the petitioner/defendants raised below and here the one-year statute of limitations applicable under the Florida Not For Profit Act: "Any proceeding challenging an expulsion, suspension, or termination, including a proceeding in which the defective notice is alleged, must be commenced within 1 year after the effective date of the expulsion, suspension, or termination." § 617.0607(3), Fla. Stat. (2018). Diaz and the trial court did not address this bar, though it is uncontroverted that Diaz's circuit court lawsuit was filed well after that one-year limitations period. Diaz's motion to amend and presentation at the hearing on that motion failed to differentiate the barred expulsion claims from those based on other, unrelated actions of CCYC or any individual Director Defendant.

Conclusion

The procedure employed by the trial court in the present case was a departure from the essential requirements of law. The prospect of intrusive financial discovery following a trial court's authorization for an amendment to add a claim for punitive damages is the irremediable injury constituting the second element required for this Court's exercise of its certiorari jurisdiction. TRG Desert Inn Venture, Ltd. v. Berezovsky, 194 So.3d 516, 520 n.5 (Fla. 3d DCA 2016) (describing amendments to add punitive damage claims as a "game changer" in litigation, and urging "the Florida Bar's Appellate Court Rules Committee to review rule 9.130(a)(3) of the Florida Rules of Appellate Procedure to consider whether to include in the rule's catalogue of appealable, non-final orders a trial court's order granting a motion for leave to add a punitive damages claim"); Levin, 258 So.3d at 548 n.4 (same); WG Evergreen Woods SH, LLC v. Fares, 207 So.3d 993, 997 (Fla. 5th DCA 2016).

We grant the petition and quash the order granting the motion to amend.

      One defendant and member of the board of directors, Scott Morrison, passed away in 2016. His estate was substituted as a defendant, but punitive damages have not been sought against the estate. Diaz also named Maylene Jimenez, a comptroller of CCYC, as a defendant, but has not served her.

      § 768.72, Fla. Stat. (2018).

      We are left to wonder how this requires or permits intervention by a Florida court. CCYC is not a sovereign with complete authority over the island. Governmental regulation of trash burning and nuisance is subject to enforcement by Commonwealth of The Bahamas.

      Asked by counsel which counts and which defendants were to be subject to claims in the fifth amended complaint (which, as noted, had not been filed or provided to the defendants), the trial court stated "in all respects."


source: Caselaw Access Project

author: EMAS, C.J.

license: Public Domain

text:
    Elizabeth MAYA, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 3D18-914
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Elizabeth Maya, in proper person.
    Lapin & Leichtling, LLP, and Benjamin B. Carter, Coral Gables, for appellee.
    Before EMAS, C.J., and FERNANDEZ and SCALES, JJ.
   EMAS, C.J.

Introduction

Elizabeth Maya appeals a final judgment entered against her in January 2018. Because the trial court was without jurisdiction to enter the final judgment, we reverse.

Facts and Procedural History

On March 28, 2006, Arnold Maya acquired his interest in the subject property by warranty deed, and executed a promissory note in the amount of $ 228,000 secured by a mortgage on the subject property. Arnold is the only borrower on the note and both the mortgage and the deed describe Arnold as "a single man."

In October 2006, Arnold defaulted on the loan and Deutsche Bank commenced a foreclosure action, naming the unknown spouse of Arnold Maya as a defendant. Service was returned with the comment: "defendant is not married." As a result, in January 2008, Deutsche Bank dropped the "unknown spouse of Arnold Maya" as a party.

On January 30, 2008, the trial court entered final judgment of foreclosure. Arnold appealed the judgment to this Court, but the appeal was dismissed when Arnold failed to file an initial brief. See Maya v. Deutsche Bank Nat. Tr. Co., 993 So.2d 531 (Fla. 3d DCA 2008) (table). Arnold then filed several bankruptcy petitions, further delaying the foreclosure sale.

Seven years later (August 2015), the trial court reset the foreclosure sale for September 25, 2015. Deutsche Bank was the winning bidder and the clerk issued the certificate of sale.

On October 2, 2015, Arnold filed an objection to sale and, on October 26, the day before the hearing on Arnold's objection, Elizabeth Maya (Arnold Maya's spouse) filed an objection to sale and motion to vacate the final judgment, certificate of title and to reinstate the case for trial. She argued that she and Arnold had been married since 1991, and that she has owned the property with her husband since its purchase in 2006. Elizabeth argued that, because she was not named in the final judgment, her homestead interest has not been extinguished and she has not been given the opportunity to defend against the foreclosure.

The trial court entered an order on January 7, 2016, stating: "[u]pon agreement of the parties, the motion is withdrawn pending negotiation of a cash for keys settlement." Elizabeth's objection and motion was never refiled, even after negotiations between her and Deutsche Bank fell apart.

In July 2016, Deutsche Bank filed a motion for leave to file a supplemental complaint to add Elizabeth Maya as a party. That motion was granted and the supplemental complaint was filed. Deutsche Bank later amended the supplemental complaint to assert a claim for an equitable vendor's lien against Elizabeth Maya.

In January 2018, Deutsche Bank filed a motion for summary judgment upon the amended supplemental complaint. The trial court granted the motion and entered final judgment against Elizabeth Maya on the equitable vendor's lien claim in the amount of $ 356,185.41 (including prejudgment interest). This appeal follows.

Analysis

The question is whether, under these facts, the trial court retained jurisdiction, following entry of the original final judgment (which became final on appeal in 2008), to permit Deutsche Bank in 2016 to file a supplemental complaint adding Elizabeth Maya as a party to pursue an equitable vendor's claim against her, and to enter the subsequent 2018 final judgment on appeal. The answer to that question is no, as the time period for altering, modifying or vacating the judgment had long expired, and the 2008 final judgment did not retain jurisdiction to allow for a supplemental, post-judgment complaint.

This case is indistinguishable from our decision in Ross v. Wells Fargo Bank, 114 So.3d 256, 257 (Fla. 3d DCA 2013) where we held:

Generally, a trial court loses jurisdiction upon the rendition of a final judgment and expiration of the time allotted for altering, modifying or vacating the judgment. Patin v. Popino, 459 So.2d 435 (Fla. 3d DCA 1984). The court retains jurisdiction to the extent such is specifically reserved in the final judgment or to the extent provided by statute or rule of procedure. Ross v. Damas, 31 So.3d 201 (Fla. 3d DCA 2010) ; Harrell v. Harrell, 515 So.2d 1302 (Fla. 3d DCA 1987). In the instant case, the trial court entered a final judgment of foreclosure against Tarazi on July 8, 2008. That final judgment contained only a general reservation of jurisdiction: 'The Court retains jurisdiction of this action to enter further Orders that are proper including, without limitation, writs of possession and deficiency judgments.' The final judgment did not retain jurisdiction to allow for a supplemental complaint to add an omitted party post-judgment. In permitting such a supplemental post-judgment proceeding, the trial court acted in the absence of jurisdiction.

See also Garcia v. Christiana Tr., 230 So.3d 66, 69 (Fla. 3d DCA 2017) ("[T]he general reservation of jurisdiction does not allow for a supplemental complaint or to add an omitted party post-judgment.");

Singer v. Singer, 219 So.3d 944 (Fla. 4th DCA 2017) (holding that the final order "did not contain a specific reservation of the court's jurisdiction to permit a supplemental complaint post judgment to add a third party.")

We therefore reverse and remand with directions to vacate the final judgment on appeal and reinstate the 2008 final judgment.

      Compare the language from the original final judgment of foreclosure ("Jurisdiction of this action is retained to enter further orders as are proper including, without limitation, writs of possession and deficiency judgments.") with the final judgment entered upon the supplemental complaint ("This Court shall retain jurisdiction over this action to enter further orders that are proper, including, without limitation, writs of possession, and re-foreclosure of any omitted necessary parties .") (Emphasis added).

      As we indicated in Ross, our decision here is without prejudice to Deutsche Bank "filing a separate foreclosure action against the previously-omitted defendant." Id. at 257 n. 3.


author: PER CURIAM.

text:
    James FRATANGELO, et al., Appellants, v. Daniel COOSEMANS, Appellee.
    No. 3D18-0705
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. and Jose G. Sepulveda, Kelly R. Melchiondo and Ryan T. Thornton, Miami, for appellants.
    Kula & Associates, P.A., Elliot B. Kula, W. Aaron Daniel, Miami, and William D. Mueller, Fort Lauderdale, for appellee.
    Before LOGUE, and MILLER, JJ., and SUAREZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hamilton v. Florida Power & Light Co., 48 So.3d 170, 172 (Fla. 4th DCA 2010) ("When there is a nonjury finding on disputed evidence [in an order enforcing settlement], it is reviewed on appeal for competent, substantial evidence because the lower court 'is in the best position to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.' ") (quoting Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ); Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 205 (Fla. 5th DCA 1998) (When the trial court conducts a full evidentiary hearing on a motion to enforce settlement, "[t]he findings of the trial court, as the trier of fact, come to this court clothed with a presumption of correctness, and where there is substantial competent evidence to sustain the actions of the trial court, the appellate court cannot substitute its opinion on the evidence but rather must indulge every fact and inference in support of the trial court's judgment, which is the equivalent of a jury verdict.").


text:
    Sameer MUHAMMAD, Appellant, v. AJX MORTGAGE TRUST I, a Delaware Trust, Wilmington Savings Fund Society, FSB Trustee, Appellee.
    No. 3D18-0622
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Sameer Muhammad, in proper person.
    The Solomon Law Group, P.A., and Laura H. Howard (Tampa), for appellee.
    Before EMAS, C.J., and FERNANDEZ, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


author: BADALAMENTI, Judge.

text:
    J.A.D., Appellant/Cross-Appellee, v. K.M.A., Appellee/Cross-Appellant.
    Case No. 2D17-2709
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019
    Michael M. Brownlee of Brownlee Law Firm, P.A., Orlando, for Appellant/Cross-Appellee.
    Jean Marie Henne, of Jean M. Henne, P.A., Winter Haven, for Appellee/Cross-Appellant.
   BADALAMENTI, Judge.

J.A.D. (the Father) appeals and K.M.A. (the Mother) cross-appeals a final judgment of paternity establishing a timesharing plan and imposing a child support obligation on the Father. After the benefit of oral argument and a careful review of the record, we reverse the child support award, holding that the trial court erred in calculating the Father's child support obligation and by failing to attach the parties' child support guidelines worksheets to the final judgment.

The Father and the Mother were a couple from 2007 to 2013. In 2008, the Mother conceived a child, J.D.D. In 2016, the Father filed a petition to determine paternity of J.D.D. in which he admitted to paternity and sought to establish his child support obligation and a timesharing plan. The Mother filed an answer to the petition and a counterpetition.

At the final hearing on both petitions, the parties heavily disputed the amount of the Father's income. The Father testified that he is employed as the CEO of Phoenix Rising Unlimited, a company owned by his mother. The company operates an entertainment center consisting of a bowling alley, a bar, and a go-kart racing track. The trial court heard testimony from witnesses that the Father received in kind benefits from the company, such as the use of a business vehicle for personal purposes. The bowling alley's general manager testified that she observed the Father remove cash from the company's safe on three to four occasions over a two-year period. She estimated that the amount he removed each time was anywhere from $ 1000 to $ 2000. The manager, whom the trial court found to be credible, also testified that she observed the Father sign a company check written out to himself in the amount of $ 2000. What's more, the manager testified that the Father bragged about using the company's money for personal purposes.

The Mother also offered into evidence a report prepared by the parties' agreed-upon accountant, which the trial court found "demonstrated that some company withdrawals could be for the personal benefit of the Father or could also be for business expenses." According to that report, approximately $ 126,130 of the company's cash withdrawals were not supported by any "backup documentation."

In the final judgment of paternity, the trial court ordered the Father to pay the Mother $ 1135 per month as his child support obligation. The trial court found that the Mother's undisputed monthly gross income is $ 2080 and that the Father's monthly gross income is $ 11,719.04. In determining the Father's monthly income, the trial court relied in part on the Father's sworn financial affidavit, which reflected that he earned a monthly gross income of $ 8333.34 in 2015 as the CEO of his mother's company. The trial court then added a monthly gross income of $ 3385.70 to that reported gross income to compensate for undocumented cash withdrawals from the Father's employer that "were not demonstrated to be company expenses."

On appeal, the Father argues that the trial court erred in its determination of child support by (1) relying on and calculating the parties' gross annual incomes and not the parties' net incomes, (2) failing to include a child support guidelines worksheet in the final judgment, and (3) adding $ 40,628.46 to his income without making specific factual findings to support that addition. We will address each argument in turn.

Section 61.30, Florida Statutes (2016), establishes a guidelines schedule that trial courts must apply in making an award of child support. The child support guideline amount presumptively establishes the amount the trial court shall award as child support. § 61.30(1)(a). The trial court has discretion to deviate from a presumptive child support award by more than five percent "only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate." Id. In determining the child support guideline amount, the trial court must follow the statutory formula set forth by section 61.30. The statute instructs that the trial court must first determine the net monthly income of each parent by subtracting allowable deductions from each parent's gross monthly income. § 61.30(2) - (4). The net income for each parent is then added together for a combined net income. § 61.30(5). The trial court must then apply the guidelines schedule to the combined net income to determine the presumptive amount of child support to award. § 61.30(6).

The trial court erred by failing to make specific findings concerning each parent's net monthly income and relying only on each parent's gross monthly income. "In conformance with section 61.30, the case law is 'well-settled that a trial court errs by failing to make findings of fact regarding the parties' incomes when determining child support.' " M.M. v. J.H., 251 So.3d 970, 972 (Fla. 2d DCA 2018) (quoting Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010) ). Because the guidelines are based on the parents' combined net income and there is an absence of findings as to same in the appellate record, this court cannot conduct a meaningful appellate review of the child support award. See § 61.30(6) (mandating that the "guidelines schedule shall be applied to the combined net income to determine the minimum child support need"); see also M.M., 251 So.3d at 972 ; Thilem v. Thilem, 662 So.2d 1314, 1316 (Fla. 3d DCA 1995) ("[T]he trial court erred in failing to distinguish gross from net income, which is crucial to properly applying the guidelines."). Stated another way, we are compelled to reverse because the absence of findings regarding the parties' net incomes precludes a determination as to whether the award was within the guidelines established in section 61.30 or whether a departure from the guidelines was justified. See M.M., 251 So.3d at 972.

Additionally, the trial court did not include in the final judgment a child support guidelines worksheet. This, too, was error. See Dep't of Revenue ex rel. R.S.M. v. B.J.M., 127 So.3d 859, 861 (Fla. 2d DCA 2013). The only child support guidelines worksheet that appears in the record is one filed by the Mother, which shows a combined net monthly income higher than the amount the trial court must have arrived at in order to award a monthly support obligation in the amount of $ 1135. See id. All in all, the final judgment fails to show how the trial court arrived at that monthly support obligation.

Lastly, we agree that competent substantial evidence did not support the trial court's addition of $ 40,628.46 to the gross annual income figure the Father included in his sworn financial affidavit. The Father reported that he earned a gross income of $ 100,000 in 2015. Concluding that "monies paid to or on behalf of [the Father] that were not demonstrated to be company expenses should be included in the Father's income for the child support calculation," the trial court found that $ 40,628.46 should be added to the $ 100,000 figure the Father reported as his gross annual income. To support the additional $ 40,628.46, the trial court generally referenced the testimony of the bowling alley's general manager. Her testimony established that the Father took $ 1000 to $ 2000 from the company safe on three to four occasions and boasted about using the company's money for personal expenses. The trial court also generally referenced the accountant's final report. But the accountant's final report reveals an aggregate of $ 126,130 of cash withdrawals with "no backup documentation" provided by the company. Notwithstanding the testimony and documents the trial court referenced in the final judgment, it is unclear how the trial court arrived at the $ 40,628.46 figure. As the Father asserts, it may be that the Father's income should not have been inflated by $ 40,628.46. Conversely, it may well be that the Father's income should have been increased by a much greater amount. This is something for the trial court to decide, and it must do so by making specific factual findings supporting the income it found. See M.M., 251 So.3d at 972.

We therefore reverse the child support award and remand to the trial court with instructions to support its award by making specific findings concerning the specific numbers that it used to calculate the amount of child support. See Sumlar v. Sumlar, 827 So.2d 1079, 1083 (Fla. 1st DCA 2002) (concluding that the absence of findings concerning "the specific numbers that were used to calculate the amount of child support" did not permit meaningful review of the trial court's ruling on the child support amount and remanding with instructions for the trial court "to make sufficient findings" to support the award). We further note that the trial court is required to include child support guidelines worksheets from both parties in its amended final judgment. See Dep't of Revenue ex rel. R.S.M, 127 So.3d at 861.

Affirmed in part, reversed in part, and remanded with instructions.

SLEET and LUCAS, JJ., Concur.

      Although the trial court admitted the accountant's report into evidence, the accountant did not testify at the hearing.

      The final judgment references that the trial court "imputed" an additional $ 3385.70 to the Father's reported monthly income. It is clear from the record that the trial court was not referring to imputation of income due to the Father's voluntary unemployment or underemployment pursuant to section 61.30(2)(b), Florida Statutes (2016), but instead was referring to in kind contributions received from his employer. See § 61.30(2)(a)(13) (defining gross income to include "[r]eimbursed expenses or in kind payments to the extent that they reduce living expenses").

      We have carefully considered all the remaining arguments in the Father's appeal and the Mother's cross-appeal and affirm the trial court's rulings as to those issues without comment.


text:
    Luis THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-611
    District Court of Appeal of Florida, Third District.
    Opinion filed January 30, 2019
    Carlos J. Martinez, Public Defender and James A. Odell, Assistant Public Defender, for appellant.
    Ashley Brooke Moody, Attorney General and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See Grady v. State 753 So.2d 744 (Fla. 3d DCA 2000) (Factors to be considered in determining whether an object is drug paraphernalia include "the proximity of the object to controlled substances" and "expert testimony concerning its use.").


author: SALARIO, Judge.

text:
    Michael LENNON, Appellant, v. Simone LENNON, Appellee.
    Case No. 2D17-3416
    District Court of Appeal of Florida, Second District.
    Opinion filed February 1, 2019.
    Michael Lennon, pro se.
    Mary Ellen Borja of Mary Ellen Borja, P.A., Clearwater, for Appellee.
    BY ORDER OF THE COURT:
   Appellant's motion for clarification is granted. The prior opinion dated October 17, 2018, is withdrawn, and the attached opinion is issued in its place. No further motions for rehearing or clarification will be entertained.

SALARIO, Judge.

Michael Lennon (the former husband) appeals from an amended final judgment dissolving his marriage to Simone Lennon (the former wife). He raises issues with the parenting plan, child support award, and equitable distribution scheme. We affirm the portions of the final judgment related to the equitable distribution and parenting plan, except that with regard to the parenting plan, we remand for the limited purpose of having the trial court include in the final judgment a provision that either parent alone may provide consent for a child to receive mental health treatment. See § 61.13(2)(b)(3)(a), Fla. Stat. (2016).

The ongoing and retroactive child support provisions in the final judgment prove more troublesome. Although we review a trial court's award of child support for an abuse of discretion, Augoshe v. Lehman, 962 So.2d 398, 401 (Fla. 2d DCA 2007), a trial court's decisions about support must be supported by competent substantial evidence and factual findings sufficient to enable this court to determine how the trial court made the decisions it did. See § 61.13(1)(a)(1)(b) (requiring that child support orders provide a payment schedule "based on the record existing at the time of the order"); Cooper v. Cooper, 760 So.2d 1048, 1049 (Fla. 2d DCA 2000) (remanding child support award with instructions for the trial court to "set forth findings upon which the [child support] calculation is based"); Sumlar v. Sumlar, 827 So.2d 1079, 1083 (Fla. 1st DCA 2002) ("A final judgment must include factual findings sufficiently specific to allow the reviewing court to ascertain the basis of calculations relating to child support."); see also Dep't of Revenue ex rel. K.A.N. v. A.N.J., 165 So.3d 846, 848 (Fla. 2d DCA 2015) ("[T]he child support determination must be supported by evidence in the record."). There are three problems with the final judgment.

First, there are no findings that explain how the trial court arrived at the figures it included in the "allowable deductions" section of the child support guidelines worksheets incorporated in the final judgment. The worksheets included an amount for the former wife's deductions that is greater than what would be supported by her financial affidavits or, for that matter, any other evidence of those deductions that we can find. And on the flip-side, the amount of the former husband's deductions was substantially lower than indicated by his affidavits. While these discrepancies might legitimately be related to the trial court's decisions to impute income to the former wife and allocate the federal income tax exemptions for the children, without findings that explain why the trial court did what it did, we are unable to determine whether it abused its discretion. See, e.g., Smith v. Smith, 912 So.2d 702, 705 (Fla. 2d DCA 2005) (reversing child support award where "neither the final judgment nor the record ... discloses with any meaningful specificity the manner in which the trial court calculated the husband's child support obligation").

Second, it appears that the trial court used the wrong number of overnights in the guidelines worksheets. In a point the former wife conceded in the trial court, the former husband is entitled to 128 overnight visits with the children. The worksheets, however, say that the former husband gets 126 overnights. This discrepancy seems to stem from confusion over whether the children were enrolled in public or private school (the parenting plan is based on the Pinellas County school calendar despite the children apparently being enrolled in private school). Because each party's support obligation is based on the percentage of overnights that a child has with the other parent, the use of an incorrect overnight figure can affect the ultimate support obligation. Thus, it is important to use the correct figure. In preparing new guidelines worksheets on remand, the trial court shall use the correct number of overnights. See Liguori v. Liguori, 210 So.3d 117, 119 (Fla. 2d DCA 2016).

Third, while we take no issue with the trial court's decision to base the retroactive support award on the earlier guidelines worksheet that was prepared in conjunction with the former wife's motion for temporary relief, see § 61.30(17)(a), we cannot ascertain whether the amount of that award is supported by the evidence because that guidelines worksheet does not appear in the record and there are no other portions of the record from which we can review the trial court's calculation in this regard, see Voronin v. Voronina, 975 So.2d 1228, 1229 (Fla. 2d DCA 2008) ; Smith, 912 So.2d at 705.

For these reasons, we reverse the portions of the amended final judgment awarding ongoing and retroactive child support and remand for a new hearing on these issues. In recalculating the ongoing support obligation, the parties should prepare and file guidelines worksheets based on their current financial information, see Fla. Fam. L. R. P. 12.285(k), and the trial court shall determine their respective financial situations and recalculate their support obligations in keeping with the record and related findings and the child support guidelines, see Long v. Long, 916 So.2d 823, 824 (Fla. 2d DCA 2005). The former husband is entitled to credit for any previous overpayments. See, e.g., Sierra v. Ellison, 677 So.2d 406, 408 (Fla. 3d DCA 1996). If the court again chooses to award retroactive support, the amount of any such award must be supported by evidence in the record, and the former husband shall be entitled to credit against that obligation to the extent that he can offer competent substantial evidence of actual payments qualifying under section 61.30(17)(b). Additionally, the court is free on remand to revisit any other part of the amended final judgment to the extent that doing so is necessary for it to make "sufficient findings to permit meaningful review" of the recalculated child support obligations. See Sumlar, 827 So.2d at 1083. We affirm the balance of the final judgment but remand with instructions to include the required finding with respect to consent to mental health treatment for the children.

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

NORTHCUTT and ROTHSTEIN-YOUAKIM, JJ., Concur.

      This requirement, applicable when a trial court orders shared parental responsibility, is a recent addition to section 61.13 that became effective on July 1, 2016, see ch. 16-241, § 81, Laws of Fla., ten days prior to the recordation of the original final judgment of dissolution in this case.

      The final judgment is silent as to which party has the right to claim the federal income tax exemption for each of their two minor children. While such a finding may not be required by Florida law, it would prove helpful in this case. The right to claim an exemption for one or both of the children will have a direct effect on each party's actual federal income tax burden, which will in turn affect their allowable deductions for the purposes of the guidelines worksheets and, ultimately, their monthly responsibility. It is unclear who the trial court envisioned would have the right to claim the exemption for each child when it prepared the guidelines worksheets in the amended final judgment. In this case, the former husband is correct that under the default rule, the former wife has the right to claim the exemption for both children because she is the primary custodial parent. See 26 U.S.C. § 152(c)(4)(B)(i) (2012). However, federal and state law allows the noncustodial parent to claim a child under certain circumstances. Id. § 152(e)(1)-(3) ; § 61.30(11)(a)(8), Fla. Stat. (2016) ; Alston v. Vazquez, 226 So.3d 377, 377 (Fla. 5th DCA 2017) ("The trial court [has] the discretion to transfer the dependency exemption to the noncustodial parent." (quoting Vick v. Vick, 675 So.2d 714, 719 (Fla. 5th DCA 1996) ) ). If the court on remand wishes to depart from the default rule and give the former husband the right to claim the exemption for one (or both) children, it should make an express finding requiring the former wife to waive her exemption for one or both children accordingly, see § 61.30(11)(a)(8), and condition the former husband's right on his being current with child support payments, see Fortune v. Fortune, 61 So.3d 441, 447 (Fla. 2d DCA 2011).


author: Per Curiam.

text:
    Joseph R. MCGEE, Husband, Appellant, v. Angeline E. MCGEE, Wife, Appellee.
    No. 1D18-2023
    District Court of Appeal of Florida, First District.
    February 4, 2019
    Alexa K. Alvarez of Alvarez & Wallace, P.A., Fernandina Beach, for Appellant.
    Bryan S. Gowdy and Daniel Mahfood of Creed & Gowdy, P.A., Jacksonville; Jacqueline Fortier, Law Offices of Garnett Harrison, Kingsland, Georgia, for Appellee.
   Per Curiam.

The former husband appeals several aspects of the final judgment of dissolution of marriage. However, he failed to provide a transcript of the final hearing or a stipulated statement of the evidence. Because the former husband challenges, in part, the sufficiency of the evidence to support the temporary alimony and equitable distribution of marital debt as ordered by the trial court, these portions of the final judgment are affirmed. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150 (Fla. 1979) ; Jericka v. Jericka , 198 So.3d 661, 662 (Fla. 2d DCA 2015) ; Esaw v. Esaw , 965 So.2d 1261 (Fla. 2d DCA 2007) and Klette v. Klette , 785 So.2d 562 (Fla. 1st DCA 2001). See also § 59.041, Fla. Stat. (2017).

The former husband also challenges the trial court's determination of his child support obligation. As with other appeals, where the appellant fails to provide a transcript or proper substitute, "the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error." Applegate , 377 So.2d at 1152. This general rule applies to appeals of child support awards, such as here, on grounds that the court used an incorrect income figure. Green v. Green , 788 So.2d 1083, 1084 (Fla. 1st DCA 2001).

The absence of a transcript is ordinarily fatal to such appeals, but an exception applies where the trial court fails to make any findings of fact regarding the parties' incomes and the appellant makes "a specific claim of harm resulting from the trial court's failure to make findings regarding the parties' incomes." Wilcox v. Munoz , 35 So.3d 136, 139 (Fla. 2d DCA 2010) ; see also Aguirre v. Aguirre , 985 So.2d 1203 (Fla. 4th DCA 2008). However, the exception does not apply here. The final judgment contains findings by the trial court regarding the parties' incomes. While the former husband challenges the accuracy of the trial court's finding of his gross income, he does not challenge the trial court's imputation of income to the former wife for its starting point. Furthermore, he does not assert that the child support award of $ 615.66 per month departs from the appropriate guidelines amount, is grossly disproportionate to his income, or otherwise constitutes harmful error.

Our review of the record as provided fails to reveal a miscarriage of justice or an abuse of the trial court's discretion on the face of the judgment such that reversal is required. While the judgment on appeal lacks written findings as to some statutory factors, without a transcript of the hearing we cannot presume that the trial court's determination of the former husband's share of the child's need for support was unsupported by sufficient evidence presented at trial or that the child support ordered was otherwise the result of harmful error. See § 59.041, Fla. Stat. (requiring appellate examination of "entire case" for determination of whether error resulted in miscarriage of justice). Accordingly, the trial court's determination of the former husband's child support obligation is affirmed.

Finally, the portion of this appeal challenging the trial court's reservation of jurisdiction to determine the amount former husband will pay for former wife's attorney's fees is dismissed for lack of jurisdiction. See Ness v. Martinez , 249 So.3d 754 (Fla. 1st DCA 2018) ; Card v. Card , 122 So.3d 436 (Fla. 2d DCA 2013). That portion of the final judgment does not make an award of fees. It only determines entitlement and is therefore nonfinal.

AFFIRMED in part, DISMISSED in part.

B.L. Thomas, C.J., and Bilbrey and Jay, JJ., concur.


author: BLACK, Judge.

text:
    Raynessa PARRIS, Appellant, v. Shanta BUTLER, Appellee.
    Case No. 2D18-1932
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Tarya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant.
    Ingrid M. Hooglander of Brandon Legal Group, Brandon (withdrew after briefing), for Appellee.
   BLACK, Judge.

Raynessa Parris, the Wife, appeals from two orders entered in favor of Shanta Butler, the Husband. The orders require the parties' children to be returned from St. Croix to Florida, grant majority time-sharing to the Husband, and establish a temporary time-sharing plan. Because the trial court abused its discretion in entering these orders, we reverse.

The Husband filed the petition for dissolution on December 14, 2017. In the petition, the Husband alleged that the Wife had traveled with the parties' minor children, born in August 2014 and December 2015, to St. Croix on August 21, 2017, and that the Wife and children remained in St. Croix. The Husband sought shared parental responsibility, time-sharing, and an injunction "to require the Wife to immediately return the minor children to" Florida and "to prevent their removal from the jurisdiction" through the conclusion of the case. On January 8, 2018, the Husband filed a motion for return of the children to Florida and for entry of a temporary parenting plan. Specifically, the Husband sought an order enjoining the parties from removing the children from Florida and establishing a temporary parenting plan affording him majority time-sharing. Following a hearing at which the Husband was the sole witness because the Wife appeared telephonically from St. Croix and could not provide sworn testimony, the court found that it had jurisdiction over the parties and the children and orally granted the motion to the extent that the court ordered the children to be returned to Florida within two weeks and required the surrender of their passports. The court also granted the Husband majority time-sharing.

Prior to the entry of a written order on the motion, the Wife filed an emergency motion for reconsideration. The Wife contended that the court's order was entered without sufficient evidence. The court then stayed enforcement of its initial order, pending a hearing on the Wife's motion for reconsideration. An evidentiary hearing was held on the Wife's motion in April 2018. The Wife, her mother, the Wife's ex-husband, and the Husband testified, and the court took notice of the Husband's prior testimony. The majority of the testimony at the April hearing was not directly related to the children or their best interests.

The day after the hearing, while the parties were present in court, the court orally pronounced its ruling on the motion for reconsideration; the written order was entered thereafter. In its oral pronouncement, the court stated that both parties "acknowledged that after a great deal of discussion and the discussion about long-term family plans that they thought it was in the [W]ife's best interest to transition to St. Croix." In the written order, the court acknowledged that the relocation of the children predated the petition for dissolution such that the relocation statute, section 61.13001, Florida Statutes (2017), did not apply; however, the court reiterated its jurisdiction over the children and its obligation to address the best interests of the children as they pertain to the establishment of a parenting plan including time-sharing. After expressly considering most of the statutory best-interest factors, see § 61.13(3), the court ordered that it was in the best interests of the children to remain in St. Croix until school released for the summer or no later than June 1, 2018, at which point the children would be returned to Florida and the ordered time-sharing plan would take effect. The court contemporaneously entered its order on the Husband's motion for return of the children. The court directed that the children be returned to Florida and not be removed from the state without leave of the court and that their passports should be held by the Husband's attorney or in the registry of the court.

The Wife first contends that the trial court reversibly erred in failing to consider the relocation factors set forth in section 61.13001(7). This court has repeatedly stated that even in cases in which relocation is not strictly at issue, the relocation factors should be considered at the earliest opportunity in determining the best interests of the children under section 61.13. See Decker v. Lyle, 848 So.2d 501, 503 (Fla. 2d DCA 2003) ; Mian v. Mian, 775 So.2d 357, 358 (Fla. 2d DCA 2000). It is clear from the record that the trial court only considered the relocation factors to the extent that they overlap with the section 61.13 best-interest factors. On review of the evidence presented at the hearings, we are not convinced that the court would have ordered the children's return to Florida had the court considered each of the relocation factors as it is required to do. See Cecemski v. Cecemski, 954 So.2d 1227, 1228 (Fla. 2d DCA 2007) ("[W]e find that the facts in virtually every pertinent matter of consequence do not provide substantial competent evidence to support the trial court's findings ...."); cf. Mian, 775 So.2d at 359 ("The record demonstrates that the trial judge considered ... the effects of the temporary move to Atlanta on the child .... We are convinced that the decision to award temporary custody to the mother was correct and would not have been different had the judge discussed each enumerated section of the statute in turn.").

The Wife also contends that the trial court abused its discretion in entering time-sharing and injunctive orders without evidence to support them. See Liguori v. Liguori, 210 So.3d 117, 119 (Fla. 2d DCA 2016) (reviewing a temporary time-sharing plan for competent substantial evidence (quoting Schwieterman v. Schwieterman, 114 So.3d 984, 987 (Fla. 5th DCA 2012) ) ); see also Hoff v. Hoff, 100 So.3d 1164, 1168 (Fla. 4th DCA 2012) (stating that "[t]he goal of temporary relief hearings ... is to promote stability in the lives of children while the divorce is pending" and reviewing temporary time-sharing orders for competent substantial evidence). The Wife asserts that the evidence presented favors majority time-sharing with her and alternatively that the evidence was insufficient to fully develop the issue of time-sharing.

The section 61.13 best-interest factors expressly considered by the court were found to weigh in neither party's favor. And although the court outlined its rationale as to some factors, it failed to address others, including factors for which unrefuted evidence was presented. As a result, we cannot conclude that the court actually considered all of the best-interest factors and the evidence presented. Further, many of the court's findings are simply unsupported by competent substantial evidence. See, e.g., D.M.J. v. A.J.T., 190 So.3d 1129, 1133 (Fla. 2d DCA 2016).

The trial court failed to consider the statutory relocation factors in ordering that the children be returned to Florida, and its determination that the best interests of the children are served by their being in Florida to effectuate a time-sharing plan is not supported by the evidence presented at the hearings. Accordingly, we reverse the "Order on Wife's Verified Emergency Motion for Reconsideration and Husband's Response to Wife's Verified Emergency Motion for Reconsideration" and the "Order on Husband's Amended Emergency Motion for Return of Child[ren] to Hillsborough County and for Entry of Temporary Parenting Plan." On remand, the court shall consider the statutory relocation factors and the evidence before it in determining the best interests of the children. See Decker, 848 So.2d at 503. While we understand "the need to minimize disruptions to the custodial arrangements for the child[ren]," we nevertheless must require the trial court to decide the issue of temporary time-sharing "based upon the best interests of the child[ren] and not as a sanction for the conduct of either of the parties." Id.

Reversed and remanded.

NORTHCUTT and MORRIS, JJ., Concur.

      The orders are titled "Order on Wife's Verified Emergency Motion for Reconsideration and Husband's Response to Wife's Verified Emergency Motion for Reconsideration" and "Order on Husband's Amended Emergency Motion for Return of Child[ren] to Hillsborough County and for Entry of Temporary Parenting Plan."

      As an example, although the court determined that the Wife had been the primary caregiver for the children, the court did not consider "[t]he nature, quality, extent of involvement, and duration of the child[ren]'s relationship" with the Wife or how the children's ages and developmental stages (at three and four years old) would be impacted by a move away from the primary caregiver. See § 61.13001(7)(a), (b). Further, although the court found that historically the parties cared for the children themselves, the court apparently disregarded the undisputed testimony that if the Husband were given primary time-sharing the children would be in daycare or preschool from at least 10:00 a.m. until 6:00 p.m. daily while the Husband worked; the Husband had no extended family nearby who could assist him in caring for the children.

      The court's findings with regard to one child having special needs, identified as "a significant speech delay," are unsupported by competent evidence. The court's determination that the Wife unreasonably delayed taking the oldest child to be evaluated is likewise unsupported; the court wholly ignored the unrefuted evidence that the Wife had to obtain a referral in order to have the child evaluated by a specialist and had done so. Further, there is simply no evidence supporting the court's determination that the children's education and welfare could be "best" met in Florida rather than in St. Croix. See Cecemski, 954 So.2d at 1229 (noting that the trial court's finding with regard to a pertinent section 61.13 factor was "supposition or conjecture, which axiomatically [could not] support the [court's] conclusion"). The evidence affirmatively established that the parties had agreed and intended to relocate to St. Croix in the near future. Additionally, the court determined that "at least on a temporary basis, it is in the best interest of the children to remain in St. Croix." Yet there is no discussion of how the children's best interests would change as of June 1, 2018, the date the court required the children's return to Florida and the implementation of the time-sharing plan. Cf. Arthur v. Arthur, 54 So.3d 454, 459 (Fla. 2010) ("[A] 'prospective-based' [best interests] analysis is unsound.").


text:
    George Stanford PIERCE, Jr., Appellant, v. Amy PIERCE, Appellee.
    Case No. 2D18-319
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Jane H. Grossman, St. Petersburg, for Appellant.
    Peyton Mullin and Alexa Saab of Meros, Smith, Lazzara, Brennan & Brennan, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

Affirmed. See Sun Harbor Homeowners' Ass'n v. Bonura, 95 So.3d 262, 265 (Fla. 4th DCA 2012) (recognizing that pursuant to Florida Rule of Appellate Procedure 9.600(a), the circuit court has concurrent jurisdiction with the appellate court during the pendency of review before the record is docketed to render orders on procedural matters relating to the case).

CASANUEVA, SILBERMAN, and SLEET, JJ., Concur.


text:
    S.H., Mother of M.B., a Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Case No. 5D18-3554
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 14, 2019
    Elliott R. Ambrose, of Law Office of E.R. Ambrose, Brooksville, for Appellant.
    Kelley Schaeffer, of Children's Legal Services, Bradenton, for Appellee.
   PER CURIAM.

S.H. ("Mother") appeals the final judgment terminating her parental rights to M.B. We reverse because the trial court terminated Mother's parental rights based on grounds not pled in the petition.

The Department of Children and Families ("the Department") received an abuse report regarding M.B. upon her birth. It responded to the hospital the next day and interviewed Mother, who admitted to smoking marijuana during her pregnancy and testing positive for THC and methamphetamine two months before giving birth. Mother also admitted that she was confined under the Baker Act three times during her pregnancy. M.B. tested positive for THC at birth. Consequently, the Department removed M.B. from Mother's custody.

An ongoing dependency action regarding M.B.'s older sibling, A.B., began almost eighteen months before M.B.'s birth. The allegations in that case involved substance abuse as well as domestic violence. The facts and circumstances of both cases are interrelated. A.B. was adjudicated dependent in October 2016. Mother agreed to a case plan with several requirements, including a substance abuse evaluation that recommended substance abuse treatment. Mother had twelve months to substantially complete the case plan. At the judicial review, the trial court found that she failed in that endeavor.

The Department filed a petition for termination of Mother's parental rights to A.B. just before M.B.'s birth. It filed a separate petition for termination of Mother's parental rights to M.B. shortly after her removal. As to M.B., the Department alleged, pursuant to section 39.806(1)(c), Florida Statutes (2018), that Mother's continued conduct "threatens the child's life, safety, well-being, or health irrespective of the provision of services."

Of significance to our decision are the grounds on which the trial court based its judgment, but that the Department did not allege. It did not allege chronic abuse of a controlled substance pursuant to section 39.806(1)(j). Nor did it allege the presence of drugs in M.B.'s system at the time of birth in conjunction with a prior finding of harm to a sibling because of exposure to drugs, pursuant to section 39.806(1)(k). We also note that the Department did not allege that the parental rights of a sibling had been involuntarily terminated pursuant to section 39.806(1)(i).

In affirming the termination of parental rights as to A.B., we determined that clear and convincing evidence supported the trial court's ruling that the termination of Mother's parental rights was in A.B.'s manifest best interest and was the least restrictive means for protecting A.B.

Likewise, as to M.B., we conclude that clear and convincing evidence supports the trial court's factual findings. However, the trial court failed to analyze those findings of fact in light of the only ground the Department pled in its petition.

It is axiomatic that terminating parental rights on a ground not pled constitutes a denial of the procedural due process rights of notice and a fair hearing. See D.W.Q. v. A.B., 200 So.3d 87, 88 (Fla. 5th DCA 2015) ; see also Z.M. v. Dep't of Child. & Fam. Servs., 981 So.2d 1267, 1268 (Fla. 1st DCA 2008) (reversing order terminating parental rights on ground not alleged in petition when court suggested for first time after petitioner's case in chief that unpled ground supported termination). A court may not deprive a parent of a fundamental liberty interest in his or her offspring without an opportunity to assess and rebut the alleged reasons for termination. See C.R. v. Dep't of Child. & Fams., 225 So.3d 393, 394 (Fla. 5th DCA 2017) (reiterating that termination of parental rights should not be done on a "gotcha" basis).

We express no opinion whether the evidence presented supported termination of parental rights under section 39.806(1)(c) or whether other grounds were tried by consent. We remand for consideration of those issues and for entry of an amended final judgment, if appropriate.

REVERSED and REMANDED.

COHEN, GROSSHANS, and SASSO, JJ., concur.

      In a separate appeal, Mother appealed the final order terminating her parental rights to M.B.'s older sibling, A.B. This Court affirmed that termination. S.H. v. Dep't of Child. & Fams. , No. 5D18-3555, 263 So.3d 306, 2019 WL 638123 (Fla. 5th DCA Feb. 14, 2019). S.B., the father of both children, has not appealed the termination of his parental rights in either case.

      The Department could not allege section 39.806(1)(i) as a ground for termination because at the time it filed the petition, Mother's parental rights to A.B. were not terminated.


text:
    Lashay Alexander SMITH, Jr., DOC #S24878, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-2268
    District Court of Appeal of Florida, Second District.
    Opinion filed February 8, 2019
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Blain A. Goff, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

As Lashay Smith argues and the State concedes, the trial court's amended order of revocation of Smith's probation still deviates from the court's oral pronouncement at the revocation hearing concerning the conditions of probation that it found Smith to have violated. Accordingly, although we affirm the revocation of Smith's probation, we remand for the entry of a second amended order of revocation that fully conforms to the trial court's oral pronouncement at the revocation hearing.

Affirmed; remanded with directions.

SILBERMAN, BLACK, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    Mohammed N. ALI, Appellant, v. WELLS FARGO BANK, N.A., etc., Appellee.
    Case No. 5D15-2796
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 15, 2019
    Michael P. Fuino, of Weidner Law, P.A., St. Petersburg, for Appellant.
    Kimberly S. Mello, Laura J. Bassini and Vitaliy Kats, of Greenberg Traurig, P.A., Tampa, for Appellee.
   PER CURIAM.

We affirm the final judgment in all respects except for the attorney's fee award. Because Wells Fargo failed to present any competent, substantial evidence to support the number of hours spent on the case, the hourly rate, or the total fee, we reverse that portion of the final judgment awarding attorney's fees. See Michel v. Bank of N.Y. Mellon, 191 So.3d 981, 984 (Fla. 2d DCA 2016) ; see also B & H Miracle, LLC v. Wells Fargo Bank, N.A., 227 So.3d 238, 239 (Fla. 1st DCA 2017) ; Freiman v. Nat'l City Mortg. Co., 183 So.3d 1111, 1112 (Fla. 4th DCA 2015) ; Warner v. Warner, 692 So.2d 266, 268 (Fla. 5th DCA 1997).

AFFIRMED, in part; and REVERSED, in part.

BERGER, LAMBERT and EDWARDS, JJ., concur.

      We decline Wells Fargo's invitation to remand for further proceedings. The cases cited by Wells Fargo in support of remand are distinguishable where, unlike here, the party seeking attorney's fees presented some evidence to support the fees awarded and had filed attorney's fees affidavits prior to trial that substantiated the fees. See Black Point Assets, Inc. v. Ventures Tr. 2013-I-H-R by MCM Capital Partners, LLC, 236 So.3d 1134, 1137 (Fla. 2d DCA 2018) ; Henderson v. OneWest Bank, FSB, 217 So.3d 209, 210 (Fla. 1st DCA 2017) ; Colson v. State Farm Bank, F.S.B., 183 So.3d 1038, 1040 (Fla. 2d DCA 2015) ; Diwakar v. Montecito Palm Beach Condo. Ass'n, 143 So.3d 958, 961 (Fla. 4th DCA 2014) ; Morton v. Heathcock, 913 So.2d 662, 670 (Fla. 3d DCA 2005) ; Rodriguez v. Campbell, 720 So.2d 266, 267-68 (Fla. 4th DCA 1998).


text:
    Thomas Benjamin BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0518
    District Court of Appeal of Florida, First District.
    February 15, 2019
    Thomas Benjamin Brown, pro se, Appellant.
    Ashley B. Moody, Attorney General, Tallahassee, for Appellee.
   Per Curiam.

Thomas Benjamin Brown ("Brown") appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. For the reasons set forth below, we affirm.

In 2002, following a negotiated plea, Brown was convicted of sexual battery and sentenced to seven years in prison, to be followed by five years on sex offender probation. In 2013, he admitted violating his probation and was sentenced to twenty-five years in prison, to be followed by five years on probation, which this Court affirmed in a prior appeal. Brown now files the instant appeal after raising three claims in a postconviction motion.

All claims raised by Brown relate to the fact that when he was released from prison in 2009 to start his probation, he was transferred to the Florida Civil Commitment Center, a secure facility under the jurisdiction of the Department of Children and Families. He alleges he never agreed to that "enhancement" of his probationary sentence. In ground one, he alleges the trial court lacked jurisdiction to revoke his probation because his placement in the secure Civil Commitment Center was illegal. In ground two, he argues his placement in the civil commitment center violated his double jeopardy rights because it constitutes an "enhancement" of his probationary term after it was imposed. In ground three, Brown alleges counsel was ineffective for failing to raise those issues and for allowing him to enter a plea to violating his probation when his probation had not yet begun (as he remained confined).

The supreme court has held that involuntary commitment for sexual predators is a civil commitment, not a punishment. See State v. Harris , 881 So.2d 1079, 1083 (Fla. 2004). As such, a plea agreement for incarceration followed by probation is not violated when a defendant is civilly committed after his release from incarceration. Id. The supreme court specifically rejected the argument raised by Brown that by civilly committing him, the State was adding a term to probation (i.e., requiring him to complete "residential" sex offender treatment). Id. Additionally, because the involuntary commitment of sexual predators is a civil proceeding, not a criminal sentence or punishment, the appellant's civil commitment does not violate double jeopardy as it does not represent an improper increase in his sentence after it has been imposed. See Westerheide v. State , 831 So.2d 93, 99-104 (Fla. 2002). Finally, contrary to his assertions, Brown was on probation while in the secure facility. This Court has noted, "a period of probation shall commence immediately upon the release of the defendant from incarceration." Walker v. State , 604 So.2d 913, 914 (Fla. 1st DCA 1992) (internal quotation and citation omitted). Because the civil commitment is not a sentence or incarceration, his probation started immediately upon the expiration of his seven-year incarcerative sentence and his transfer to the civil commitment facility.

The conclusion that probation starts as soon as a defendant is released to a civil commitment is further supported by section 948.012(6), Florida Statutes. In 2014, the subsection was amended to indicate probation or supervision was to be tolled while a defendant was civilly committed. That section is effective for defendants whose "sentences of probation or community control begin[s] on or after October 1, 2014." § 947-012(6), Fla. Stat. (2014). Here, Brown began his probation in 2009. Thus, prior to 2014, defendants were on probation as soon as they were released to civil commitment under the jurisdiction of the Department of Children and Families. Accordingly, the trial court had jurisdiction to revoke his probation.

AFFIRMED .

B.L. Thomas, C.J., and M.K. Thomas, J., concur;

Rowe, J., concurs in result only.


author: Wolf, J.

text:
    Marcel MICKLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-0423
    District Court of Appeal of Florida, First District.
    February 15, 2019
    Marcel Mickles, pro se, Appellant.
    Ashley B. Moody, Attorney General, and Daniel Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Wolf, J.

Appellant challenges the denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of the first two grounds raised in his motion without comment. As to the third ground, appellant argues counsel was ineffective for failing to object when the trial court imposed a sentence that exceeded the terms of his plea agreement. We agree and reverse and remand.

Appellant was charged with 4 counts: possession of a firearm by a convicted felon (count 1); possession of a controlled substance with the intent to sell, manufacture, or deliver (count 2); possession of a concealed weapon by a convicted felon (count 3); and altering the serial number from a firearm (count 4). He entered a plea of nolo contendere pursuant to a plea agreement. For counts 1 and 2, his written plea agreement stated, "plea straight up State agrees to cap of 10 years FSP." For count 3, he entered a "plea straight up" to the lesser-included offense of carrying a concealed firearm, and for count 4 he also pled "straight up." During the plea colloquy, the trial court explained to appellant: "Any legal sentence would be allowed with a cap; that is would be no more than 10 years state prison, but anything from that and below that would be in the discretion of the court." Appellant affirmed that was his understanding of the agreement. However, appellant was sentenced to 8 years in prison followed by 5 years' probation for counts 1 and 2, as well as 5 years in prison for counts 3 and 4.

The postconviction court found the term "FSP" clearly referred to "Florida State Prison." It reasoned that both the written plea agreement and the colloquy confirmed that the sentencing cap only applied to any incarcerate portion of the sentence and not probation. Thus, the court summarily denied this claim.

When a plea agreement places a cap on the term of incarceration, " 'the trial court must apprise the defendant that the period of incarceration specified in the plea agreement will be followed by a period of probation, if such is the court's intent.' " Echeverria v. State , 949 So.2d 331, 334 (Fla. 1st DCA 2007) (quoting Eggers v. State , 624 So.2d 336, 337-38 (Fla. 1st DCA 1993) ). Doing so is part of the trial court's obligation to determine the voluntariness of the plea under Florida Rule of Criminal Procedure 3.172(c)(7), which requires advising the defendant of the complete terms of the plea agreement. Id.

Here, the trial court failed to apprise appellant of its intent to impose a probationary period in addition to the term of incarceration specified in the plea agreement. Because appellant did not move to withdraw his plea, this claim could not have been reached on direct appeal and was properly raised through a rule 3.850 motion. Eggers , 624 So.2d at 337. Thus, we reverse and remand for the trial court either to resentence appellant within the agreed-upon range or to afford him the opportunity to withdraw his plea. See Eggers , 624 So.2d at 337.

AFFIRMED in part, REVERSED and REMANDED in part.

Makar and M.K. Thomas, JJ., concur.


author: SLEET, Judge.

text:
    Donald J. CULVER, DOC #H01314, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-5541
    District Court of Appeal of Florida, Second District.
    Opinion filed February 15, 2019
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Ashley Brooke Moody, Attorney General, Tallahassee, and Katie Lynn Salemi-Ashby, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Donald J. Culver challenges the trial court's summary denial of his motion to withdraw plea after sentencing following the revocation of his probation. Because Culver alleged a facially sufficient claim that his plea was involuntary due to counsel's misrepresentations, we reverse and remand for a hearing pursuant to Sheppard v. State, 17 So.3d 275 (Fla. 2009).

In 1995 Culver was convicted by a jury of one count of incest and two counts of familial-authority sexual battery. After he completed the incarcerative portion of his sentence but while still on probation, the State filed an affidavit of violation in February 2015. On October 10, 2016, Culver entered into a plea agreement by which he would admit the charged violation. At the plea hearing, both defense counsel and Culver informed the trial court that they believed Culver was entitled to credit pursuant to Tripp v. State, 622 So.2d 941, 942 (Fla. 1993), in which the Florida Supreme Court "h[e]ld that if a trial court imposes a term of probation on one offense consecutive to a sentence of incarceration on another offense, credit for time served on the first offense must be awarded on the sentence imposed after revocation of probation on the second offense." The trial court orally sentenced Culver to concurrent terms of twenty-seven years' imprisonment "with credit for all time served." Culver's written sentence indicated that he received credit for "625 days' time served between the date of arrest as a violator following release from prison to the date of resentencing."

On November 1, 2016, Culver filed a motion to withdraw his plea pursuant to Florida Rule of Criminal Procedure 3.170(l ). In the motion, as to the issue of Tripp credit, Culver alleged the following:

Defendant entered a negotiated plea to [twenty-seven] years F.S.P. as a result of 'deception' of defense counsel allowing the perception of defendant that the plea being accepted would result to that of a 'time served' sentence after application of credits and terms as provided by the State, and defendant would GO HOME!

He further alleged that he "was not afforded any written terms only assurance of defense counsel that terms were acceptable and would be presented to court for recording," that he "perceived that the calculations and credits used by State would result in a 'time served sentence' as assured by defense counsel in negotiations," and that he "would not have agreed to plea if known that terms and credits were being omitted from the written record and sentence would not result in 'time served' [sentence]." Culver also alleged a scoresheet error by stating that "[t]he State is without jurisdiction to combine results of (2) separate guideline applications which results only in a vindictive and harsher punishment to the defendant. Questions and answers of sentences are required to be resolved in favor of a defendant."

The court summarily denied the motion "to the extent that the defendant's plea shall stand." However, the court noted that "[i]t appears that the Department of Corrections may not have applied the defendant's previously earned credit," and it ordered that "[t]he Department of Corrections shall apply Tripp credit to the Defendant's sentence if it has not already done so."

On appeal, Culver argues that the trial court erred in denying his motion to withdraw his plea because it was facially sufficient and raised a valid conflict between Culver and trial counsel and that therefore, it should have conducted a hearing pursuant to Sheppard, 17 So.3d 275. We agree.

Rule 3.170(l ) provides: "A defendant who pleads guilty or nolo contendere ... may file a motion to withdraw the plea within thirty days after rendition of the sentence, but only upon the grounds specified in Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)(a)-(e)." The rule lists as grounds for plea withdrawal "an involuntary plea" and "a sentencing error." Fla. R. App. P. 9.140(b)(2)(A)(ii)(c), (d). These rules also apply to admissions of probation violations as well. See Sheppard, 17 So.3d at 277-78. "[W]hen a defendant files a facially sufficient motion to withdraw a plea, the trial court must either afford the defendant an evidentiary hearing or accept the defendant's allegations in the motion as true except to the extent that they are conclusively refuted by the record." Boule v. State, 884 So.2d 1023, 1024 (Fla. 2d DCA 2004) (alteration in original) (quoting Iaconetti v. State, 869 So.2d 695, 699 (Fla. 2d DCA 2004) ).

[W]hen a represented defendant files a pro se rule 3.170(l ) motion based on allegations giving rise to an adversarial relationship such as counsel's misadvice, misrepresentation , or coercion that led to the entry of the plea ... the trial court should hold a limited hearing at which the defendant, defense counsel, and the State are present. If it appears to the trial court that an adversarial relationship between counsel and the defendant has arisen and the defendant's allegations are not conclusively refuted by the record, the court should either permit counsel to withdraw or discharge counsel and appoint conflict-free counsel to represent the defendant.

Sheppard, 17 So.3d at 287 (emphasis added) (footnote omitted).

Here, Culver has alleged a facially sufficient claim that counsel misrepresented to him the effect of his plea deal and that his plea was therefore involuntary. Additionally, he alleged a facially sufficient claim of sentencing error with regard to the scoresheet. And neither claim is conclusively refuted by the record. Accordingly, he was entitled to an evidentiary hearing on these claims. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) ("Garcia's allegation that he was misled by his court-appointed attorney into entering the plea can be construed as a challenge to the voluntariness of the plea. Thus, Garcia's motion was facially sufficient to warrant a hearing." (citation omitted) ).

Furthermore, although the trial court's order directs the Department of Corrections to apply Tripp credit to Culver's sentence, this does not resolve Culver's allegation that counsel misrepresented to him that based on the combination of credits due to him, entering a plea for twenty-seven years' prison would result in a "time served" sentence by which he would not serve any new prison time. This claim alleged an adversarial relationship between Culver and defense counsel and therefore entitled Culver to a limited hearing as described in Sheppard to determine if it was necessary to appoint conflict-free counsel to represent Culver on his motion to withdraw plea. See Sheppard, 17 So.3d at 287 ; see also Garcia, 846 So.2d at 661 ("Once it became clear that Garcia and his counsel had adversarial positions concerning what actually happened while counsel was advising Garcia concerning the plea, Garcia was entitled to conflict-free counsel."). Accordingly, we reverse and remand for the trial court to conduct an evidentiary hearing on Culver's rule 3.170(l ) motion but only after it has conducted a Sheppard hearing to determine if Culver is entitled to conflict-free counsel.

We note that with regard to Culver's claim of scoresheet error, it appears that in summarily denying it the trial court misconstrued Culver's argument. The trial court addressed the claim by merely stating that "only one scoresheet was used" and attaching that scoresheet. But the fact that there was only one scoresheet in the record does not conclusively refute Culver's allegation that the State "combined" two "guideline applications" in calculating his one scoresheet. We therefore direct the trial court to address this claim at the evidentiary hearing on Culver's rule 3.170(l ) motion.

Reversed and remanded with instructions.

LaROSE, C.J., and VILLANTI, J., Concur.


author: Jay, J.

text:
    Jennifer TISDALE, Former Wife, Appellant, v. Stephen TISDALE, Former Husband, Appellee.
    No. 1D18-915
    District Court of Appeal of Florida, First District.
    February 15, 2019
    Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.
    Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for Appellee.
   Jay, J.

Jennifer Tisdale, the former wife, seeks reversal of portions of the trial court's "Order on Former Husband's Amended Verified Petition for Modification of Child Support and the Former Wife's Counter-Petition for Modification of Child Support." For the reasons that follow, we reverse on Points I and III, but affirm Point II without further discussion.

I

On September 1, 2015, the parties entered into a marital settlement agreement ("MSA"). Under the terms of the MSA, it was agreed that Stephen Tisdale, former husband, was to pay $ 6500 per month in child support to the former wife, as calculated under the Child Support Guidelines. The guidelines worksheet was attached to the MSA. It attributed to the former husband a monthly gross income of $ 68,000, equating to an annual salary of $ 816,000, not including additional annual income the former husband received from his other business interests. The worksheet attributed zero income to the former wife. Due to the former wife's lack of income, the $ 1200 in monthly private school tuition the former wife would have been obligated to pay under the MSA was also included in the worksheet and applied to the former husband's support obligation on a dollar per dollar basis. Later, at the former wife's entreaty, the former husband agreed to execute an addendum to the MSA whereby the children would attend public school and the former husband's child support obligation would commensurately be reduced by $ 1200, to $ 5300 per month. The addendum was executed on July 1, 2016.

For reasons not made known in the record, the Final Judgment of Dissolution of Marriage was not entered until August 26, 2016, nearly a year after the MSA. Nonetheless, it incorporated both the MSA and the addendum.

Three months later, on November 29, 2016, the former husband filed his Verified Petition for Modification of Child Support. In it, he asserted that his income had precipitously plunged since his child support obligation had been agreed upon by the parties in September 2015. He later filed an amended petition in May 2017. In turn, the former wife filed her Counter-Petition for Modification of Child Support in July, in which she alleged that the former husband's income had, in fact, dramatically increased in the eight months since he first filed his petition for modification.

It was revealed at the ensuing hearing that at the time the parties executed the MSA in September 2015, the former husband's gross annual income-made up of commission payments from his employment and profits from his other businesses-topped one million dollars; $ 1,009,556.79 to be exact. But 2016 proved to be a bad year for the construction industry. Because the former husband's employment-from which he received his commissions-was directly related to the construction trade, his 2016 commission income was likewise impacted, dwindling to $ 464,448.78. His total annual income for 2016, which included the profits from his other businesses, amounted to only $ 677,266.

Both parties acknowledged that because the former husband's "salary" from his regular employment was entirely commission-based, it would ebb and flow from month to month, and from year to year. Thus, by May 2017, the former husband's income showed a marked recovery, with projected year-end earnings just short of a million dollars. Yet, for purposes of establishing his claim for a retroactive reduction in child support, the former husband calculated his monthly income from the date he filed his petition in November 2016 until May 2017, using both his commissions and his other sources of income to arrive at the "reduced" monthly income of $ 29,377.02 during the applicable time frame.

Worthy of note is the former wife's testimony that, on September 1, 2016, when the former husband presented her with the first installment of the lump sum payment upon which they had agreed in the MSA, he advised her to "be thrifty" because he planned to take her back to court "to lower his child support." For his part, the former husband acknowledged he had told the former wife his commission checks would not keep coming in and she would be wise to curtail her spending. Specifically, he stressed, "I can't continue to pay at a million dollar mark when you're not making the million dollars."

The former wife testified she had recently graduated from dog grooming school and was hoping to open her own business. She explained that she chose that vocation because it would enable her to create her own schedule in order to accommodate the needs of one of the parties' minor sons who was being treated for severe anxiety and ADHD. The former wife agreed with former husband's counsel that it would be "a fair thing to say that [she] could earn $ 10 an hour doing that type of work." At that amount, the former wife also agreed she could earn a minimum of $ 1300 per month, working six hours a day, five days a week, in order to be with her special-needs child when the school day ended.

Following the hearing, in its final order on the parties' respective petitions, the trial court referenced the former husband's testimony that his income had decreased since the entry of the MSA and the August 26, 2016 Final Judgment of Dissolution of Marriage. But it went on to reference his additional testimony that he "knew the decreases were coming ... and told the Former Wife that she needed to be careful with her spending due to his decreasing income, and he warned her that he may need to ask for modification." The court found that "[t]he Former Husband said this was not meant as a threat, and he told her this as a courtesy." The court acknowledged the former wife's testimony that the former husband had told her on September 1-a week after the August 2016 final judgment-that he was taking her back to court, and encapsulated the former wife's testimony that she had never been privy to the parties' accounts during the marriage-as the former husband had controlled the finances and the bills-and was unaware that the former husband was making a million dollars a year.

The trial court next discussed the structure of the former husband's salary as being 100% commission-based and that his earnings were expected to fluctuate. It then found:

The Former Husband's explanation for telling the Former Wife on September 1, 2016 that he planned to take her back to Court for modification was that he was seeing and experiencing a decrease in his income immediately (5 days) after the final judgment was entered. However, his testimony was that his income started decreasing in 2015 and continued throughout 2016.
The Former Husband was aware the company's business transactions were declining over a period of time after the MSA was signed and before the Final Judgment was entered. Accepting the Former Husband's testimony regarding his decline in income as well as the Former Wife's testimony that their conversation occurred on September 1, 2016 supports the Court's conclusion that the Husband knew about his decreasing income before the Final Judgment on August 26, 2016 .

(Emphasis added.)

Significantly, the trial court stated it had considered "the line of cases" argued at the hearing by the former husband's attorney, which stood for the proposition-as noted by the court-that "a one year period of time of decreased income" meets the requirement of a permanent change. But in the next breath, the trial court found that "[t]he Former Husband did not experience a full year of substantially lowered income." However, later in its order, after acknowledging that the former husband's income "is back to the level it was prior to the Final Judgment," the trial court declared:

The Former Husband argues that the substantial change in income between the Final Judgment and June 2017 warrants a retroactive decrease in child support for the six months from filing the petition for modification through June 2017, notwithstanding the lack of a permanent change in income. The Court finds this is appropriate and will grant the decrease in child support from November 29, 2016 to May 31, 2017. The Husband shall receive credit for the overpayment made during this six month period.

(Emphasis added.)

Accordingly, the trial court granted the former husband's Amended Verified Petition for Modification of Child Support to the extent that his child support obligation "between November 29, 2016 and May 31, 2017 is decreased from the $ 5,300 in the Final Judgment to $ 3,372 (Exhibit 1) leaving him with an over-payment of $ 11,568.00 for this period." In line with the former husband's suggestion during the hearing, the trial court ordered that he "pay a reasonable amount of the Former Wife's attorney's fees and costs," which amount would be credited by the over-payment of child support in the amount of $ 11,568.00.

Addressing the former wife's counter-petition, the trial court concluded that she had the ability to work full-time. It therefore imputed minimum wage earnings as income to her for the purpose of recalculating the former husband's child support obligation. It then granted her petition by prospectively increasing child support based on the guidelines worksheet, which reflected the increase in the former husband's current earnings and the imputation of income to the former wife, amounting to $ 1440. The court found those factors altered the former husband's child support obligation by increasing it to $ 5,347 per month for both children, and $ 3,512 when the oldest child was no longer eligible for child support. For purposes of calculating the current child support on the guidelines worksheet, the trial court considered the former husband's reduced health and dental care premiums for the children, which totaled $ 346. However, the guidelines worksheet attached to the final order actually utilized the higher health and dental premium costs of $ 440, an amount both parties agreed the former husband was no longer obligated to pay.

II

On appeal, the former wife's principal argument is that the trial court erred by granting the former husband's petition and retroactively modifying his child support obligation from the date he filed his petition in November 2016 until June 2017. She asserts that the "change in circumstances" regarding the former husband's salary was neither unanticipated nor permanent.

In Wood v. Wood , 162 So.3d 133 (Fla. 1st DCA 2014), we reiterated the standard applicable to a petition for modification of child support:

"A party moving for modification of child support has the burden of proving the following factors: (1) a substantial change in circumstances; (2) the change was not contemplated at the time of the final judgment of dissolution; and (3) the change is sufficient, material, involuntary, and permanent in nature. Maher v. Maher , 96 So.3d 1022, 1022 (Fla. 4th DCA 2012). 'When the original child support amount is based on an agreement by the parties, as here, there is a heavier burden on the party seeking a downward modification.' Id. "

Id. at 135 (quoting Kozell v. Kozell , 142 So.3d 891, 894 (Fla. 4th DCA 2014) ); see generally Pimm v. Pimm , 601 So.2d 534, 536 (Fla. 1992) ). We review a trial court's decision to modify child support for an abuse of discretion. Id. Under the singular circumstances of the instant case, we find the trial court abused its discretion.

Initially, we disagree with the former husband's view that the facts of the present case established the change in his income was permanent. While the cases on which he primarily relies- Dogoda v. Dogoda , 233 So.3d 484 (Fla. 2d DCA 2017), and Freeman v. Freeman , 615 So.2d 225 (Fla. 5th DCA 1993) -could, when read together, support the idea that "permanent" may in some factual contexts be interpreted to mean one year or more, if one begins counting from the date the parties executed the MSA, we find that this case does not fit within that factual framework.

The former wife rightly points out that certain of the trial court's findings wholly contradict the former husband's argument, as well as its conclusion that the former husband proved his case for retroactive modification. First, in its final order, the trial court expressly found that although it had considered the case law we have just cited, the former husband "did not experience a full year of substantially lowered income." Second, the trial court chose the date of the final dissolution judgment-instead of the date the parties executed the MSA-in determining the length of the changed circumstances, thereby implicitly rejecting the former husband's position advanced below. Furthermore, the trial court found that the former husband's testimony revealed that his income started decreasing in 2015 and continued throughout 2016, and that he "knew about his decreasing income before the Final Judgment on August 26, 2016."

We conclude that those findings are irreconcilable with the standards for supporting a downward modification of child support through proof of an unanticipated, and permanent change in circumstances. Thus, we hold the trial court abused its discretion in granting the former husband's petition for a retroactive modification.

As the former wife also argues, the trial court additionally erred in utilizing the incorrect sum of combined health and dental premiums the former husband was then currently paying in calculating his child support obligation in line with the former wife's counter-petition for modification. During the former husband's testimony, he agreed that his combined health and dental insurance premiums for coverage of the minor children decreased from $ 440 per month to $ 307.75 per month. Nevertheless, the trial court used the higher monthly amount of $ 440 on the guidelines worksheet in computing the new child support obligation. The former husband essentially concedes this error in his Answer Brief, but seeks to justify the difference under section 61.30, Florida Statutes. We hold, however, that the five percent variance permitted by section 61.30 is inapplicable in this instance, since there was nothing in the record that even hints at any intent on the trial court's part to utilize the greater amount so as "to order payment of child support in an amount which varies more than 5 percent from such guideline amount ...." § 61.30(1)(a), Fla. Stat. Accordingly, on remand, the trial court is instructed to recalculate child support using the lower premium amount as reflected in the parties' testimony.

III

To summarize, we reverse the final order to the extent it grants a retroactive modification of the former husband's child support obligation and utilizes the incorrect sum of insurance premiums in calculating child support under the guidelines. In all other respects, the final order is affirmed.

AFFIRMED , in part, REVERSED , in part, and REMANDED for further proceedings consistent with this opinion.

Ray and Kelsey, JJ., concur.

      "[O]rders entered in modification proceedings have all of the aspects of final judgments" and, therefore, are "appealable as plenary appeals." Roshkind v. Roshkind , 717 So.2d 544, 544-45 (Fla. 4th DCA 1997) ; accord Bucsit v. Bucsit , 229 So.3d 430, 431 n.1 (Fla. 1st DCA 2017).