Child Support Modification Reversed by Fifth District Court of Appeal

Parents frequently seek to modify the child support obligation after the final dissolution decree. A change in circumstances of either part may call for a review and adjustment of the child support obligations. While this type of request is not uncommon, courts in Florida will generally require that certain criteria be met before approving such a change. Financial statements that show changes in finances may be requested by the court before a hearing on the issue

In a recent case, a father, Warren Foley, appealed a post-dissolution order denying his request to modify his child support obligation.

The parties’ marriage was dissolved in 2006. The trial court granted the mother, Gina Foley, primary custody of their son.

On appeal, Warren argued that the trial court erred in denying his request to modify his child support obligation. He specifically claimed that the trial court’s ruling was erroneous because it incorrectly stated that no financial affidavits were admitted into evidence during the modification hearing, and the court failed to recognize that the issue was tried by consent. An issue is tried by consent when both parties don’t object to the introduction of evidence on the issue.

In 2014, the father filed a petition seeking to modify the parties’ time-sharing arrangement. Along with the petition, the father filed a financial affidavit which, in pertinent part, stated that “this case involves the establishment or modification of child support.”

In response, Gina filed a pro se “Counter Supplemental Petition of Modification of Child Support.” That petition also sought modification of the parties’ time-sharing arrangement. In addition, she filed a financial affidavit that stated that the case involved “the establishment or modification of child support.”

During the modification hearing, Warren’s attorney stated: “I’ve prepared child support guidelines based on every other weekend with mom. We keep the same holiday schedule as has been previously ordered by the [c]ourt. The child support needs to be recalculated.”

Both parents provided their financial affidavits, and the trial court admitted them into evidence. In addition, Warren gave the judge a child support guideline document that had been prepared by his attorney.

The court modified the parent’s time-sharing arrangement and stated that child support “will be modified based upon a new child support guidelines worksheet to be prepared by [the father’s counsel].” However, after closer inspection, the trial court entered an order stating that the court lacked the “authority to modify child support where the matter was not plead or tried by consent and where no financial affidavits were submitted.”

Clearly the dots didn’t connect here, and Judge William D. Palmer of the Fifth District Court of Appeal reversed the order regarding child support. Contrary to the trial court’s ruling, Judge Palmer noted that the financial affidavits were admitted into evidence during the modification hearing. Further, the record demonstrated that both parties were on actual notice that child support modification was at issue in the trail proceedings.

The trial court’s order on child support was reversed, and the case was remanded for the trial court to consider the father’s child support modification request. Foley v. Foley, Case No. 5D16-1710 (Fla. 5th DCA March 3, 2017).

Parents may experience a change of circumstances that justifies the modification of an earlier child support order. One of the most frequently seen reasons for a modification is an increase or a decrease in parental income. A change in the income of either parent can impact child support, so you should contact an experienced family law attorney if you need to discuss a modification. DeVoe Law Firm can help you modify your child support, abate child support, and terminate child support in eligible cases. Call our law firm for a free consultation.