Skilled Family Law Counsel

Modification During Pendency of Appeal in Florida

Trial Court has jurisdiction over a petition for modification during the pendency of an appeal. “Both the Third and Fourth Districts have held that the trial court has jurisdiction over a petition for prospective downward modification of alimony and/or child support even while the appeal of an initial award of alimony and child support is pending because “‘[t]he granting of modification relief prospectively would have no effect on the order being appealed.’” Atlas v. Atlas, 708 So. 2d 296, 298 (Fla. 4th DCA 1998) (quoting Merian v. Merhige, 690 So. 2d 678, 681 (Fla. 3d DCA 1997) ) (emphasis added).” Cooper v. Cooper

Failure to Exercise Visitation in Florida

Failure to exercise time-sharing results in an adjustment of child support. “We previously held that application of section 61.30(11(b) is mandatory. Seiberlich v. Wolf, 859 So. 2d 570, 571 (Fla. 5th DCA 2003). Florida law mandates a reduction in child support whenever the non-custodial parent spends a “substantial amount of time” with the child. § 61.3O(1)(a), Fla. Stat. (2006). It seems intuitive that, conversely, the failure to spend time with a child mandates forfeiture of the right to a reduction in child support. The Legislature has specifically provided that a parent’s failure to exercise court-ordered or agreed-upon time-sharing, not caused by the other parent, resulting in the adjustment of child support “shall be deemed a substantial change of circumstances….” § 61.30(11)(c), Fla. Stat. (2001). That modification is “retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation. Id.” Buhler v. Buhler

Date on Which the Child Support Award Modification Takes Place in Florida

Child Support Award Modification – Date on Which the Modification Takes Place in Florida

When the court makes an allocated award for each child, the modification is retroactive to the date the child reaches majority, and pre-dates the filing of the modification petition. “Furthermore, when the issue is arrearages, the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines. See, e.g., State, Dep’t of Revenue ex rel Ortega v. Ortega, 948 So. 2d 855,857 (Fla. 3d DCA 2007) (explaining that, in the McClung decision, the court was ‘careful to distinguish those authorities that refused to retroactively modify an unallocated support award from the case then before us involving what we determined to be an allocated award…’). Gilbert v. Cole.

Modification of Child Support in Jupiter, FL

Modification of child support in Florida was recently explained in Arquette v. Rutter.  In Arquette v. Rutter the Florida Court of Appeal stated: “This court recently explained the circumstances, under the UIFSA, in which a Florida court may modify a child support order issued in another state: [A]s is the case here, when not all of the parties reside in Florida, a Florida court may only modify the order under one of the following circumstances: 1. After notice and hearing the tribunal finds that a. the child, individual obligee, and obligor do not reside in the issuing state; b. the petitioner seeks modification and is not a Florida resident; and c. the Florida tribunal has personal jurisdiction over the respondent. 2. The tribunal finds that it has personal jurisdiction over an individual party or the child and that all of the individual parties have filed a consent in the issuing tribunal to the Florida tribunal’s modifying the support order and assuming continuing exclusive jurisdiction over it.

Trissler v. Trissler, 987 So. 2d 209, 211-12 (Fla. 5th DCA 2008) (citing § 88.6111(1), Fla. Stat.). “The FFCCSOA is virtually identical to the UIFSA.” Id. at 210.

Here, neither the parents nor the child live in California. California has, therefore, lost continuing, exclusive jurisdiction under the FFCCSOA.See PuIkkinenv.Pulkkinen, l27 So.3d 738, 743 (Fla. 1st DCA 2013). “[California’s] loss of continuing, exclusive jurisdiction, however, does not automatically confer jurisdiction on a Florida court to modify [California’s] child support order.” Id. at 743-44 (citing Bowman v. Bowman, 917 N.Y.S.2d 379 (N.Y. App. Div. 2011)). Father is a resident of Florida and, therefore, may not petition to modify the child support order under section 88.6111.”

How to Win a Modification of Child Custody and Visitation Case in Florida

A Modification of Child Custody and Visitation case was recently decided by the Florida Court of Appeal in a case captioned Romeo v. Romeo. In this case, the former husband and former wife were divorced in 2007. The Final Judgment dissolving their marriage contained an agreed upon time-sharing schedule for their minor children. The former husband filed a Supplemental Petition for Modification of Time-sharing. After a hearing, the trial court granted the former husband’s request for a modification of the parties’ time-sharing schedule for their minor children. The trial court awarded additional time-sharing to the former husband, and altered the parties’ holiday time-sharing schedule. The lower court also lowered the amount of the Husband’s child support.

In the case captioned Romeo v. Romeo, the Florida Court of Appeal reversed the trial court’s ruling. The Appellate Court ruled that in order to award a custody modification, a trial court must find that there has been a material, substantial, and unanticipated change of circumstances.

In the modification of custody case at bar, the trial court failed to include this finding in its Supplemental Final Judgment. Additionally, the former husband argued that the former wife agreed to a change in the parties’ time-sharing arrangement by allowing the former husband to spend time-sharing with their children on alternate Sundays. The Florida Court of Appeal stated that consent by a parent to permit the other parent to spend extra time-sharing with their children does not create a basis for a modification of time-sharing.

Date on Which the Child Support Award Modification Takes Place in Florida

Child Support Award Modification – Date on Which the Modification Takes Place in Florida

When the court makes an allocated award for each child, the modification is retroactive to the date the child reaches majority, and pre-dates the filing of the modification petition. “Furthermore, when the issue is arrearages, the obligor is entitled to a retroactive reduction pre-dating a modification petition, consistent with the statutory child support guidelines. See, e.g., State, Dep’t of Revenue ex rel Ortega v. Ortega, 948 So. 2d 855,857 (Fla. 3d DCA 2007) (explaining that, in the McClung decision, the court was ‘careful to distinguish those authorities that refused to retroactively modify an unallocated support award from the case then before us involving what we determined to be an allocated award…’). Gilbert v. Cole.