FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.130 from the Circuit Court for
Hillsborough County; Lisa D. Campbell, Judge.
Burton Williams, of N. Burton Williams, P.A., Lithia, for
Dale Gabbard, of The Law Office of W. Dale Gabbard, Esquire,
P.A., Tampa, for Appellee.
Mirabella, the husband, appeals the circuit court's
nonfinal order regarding temporary child support. He argues
that the circuit court lacked jurisdiction to modify the
wife's child support obligation and arrearages
established in a final administrative support order. The
husband also contends that the circuit court erred in
imputing income to him. We affirm the order with respect to
the husband's imputation of income. However, we reverse
and remand the order retroactively modifying the wife's
child support obligation and arrearages.
parties were married in New York on April 18, 1998. They have
three minor children. The parties agreed for the husband to
give up his employment of sixteen years in New York, cash in
his retirement plan worth approximately $60, 000, and move to
Florida, where the wife accepted a job offer. Since the
parties moved to Florida, the husband has remained unemployed
and currently lives with the minor children. On June 2, 2016,
the husband filed a petition for dissolution of marriage.
the wife's alleged failure to pay adequate child support,
the husband applied for food stamps. On December 9, 2016, the
Florida Department of Revenue, Child Support Program (the
Department) filed a notice of proceeding to establish an
administrative support order. See §
409.2563(4), Fla. Stat. (2016). On February 28, 2017, a final
administrative support order was entered establishing the
wife's child support obligation. The Department found the
wife's actual net monthly income was $4238.98, and the
husband's imputed net monthly income was $1160.54. The
Department found that the wife's monthly share of child
support was $1598.96 and that the wife owed eleven
months' worth of retroactive support for a total of $16,
388.56 ($319.79 per month). The wife was ordered to pay
$1918.75 per month in child support.
September 21, 2017, the wife filed a motion to adjust
temporary child support based on alleged inaccuracies in the
final administrative support order and changes in temporary
time-sharing and income. The wife asked the circuit court to
retroactively modify the child support to the date of the
filing of the petition for dissolution of marriage, June 2,
2016. She claimed that the final administrative support order
did not consider her correct income, her payments for the
cost of health insurance, the husband's earning ability,
and the time-sharing schedule being exercised by the parties.
She also asserted that child support should be recalculated
to include time-sharing overnights with the minor children.
April 11, 2018, the wife filed a motion to modify the
temporary emergency order regarding time-sharing. The order
established that the wife would have time-sharing every other
weekend from 6:00 p.m. on Friday until 6:00 p.m. on Tuesday
beginning on July 14, 2017. In the motion, the wife asked the
circuit court to enter an order granting equal time-sharing.
On June 13, 2018, the circuit court entered an order on the
wife's motion regarding temporary time-sharing and child
support (the June Order) and made the following relevant
3. The Court further finds that temporary child support
shall be recalculated based upon the changes in the
overnights time-sharing schedule. The parties shall each
submit proposed temporary child support calculations using
Wife's testimony at the final hearing regarding her
income and her financial affidavit. . . . [The wife] offered
proof that [the husband] was offered employment paying $15.00
per hour. [The husband] testified he declined the offer
because the job would have required him to work the night
shift and he could not do that as the only parent in the home
with three minor children. For purposes of temporary child
support, income is computed [sic] to Father at $15.00 per
hour for a 40-hour work week.
4. [The husband] offered proof that the current support
arrearage under the Administrative Final Judgment is $20,
452.93. Changes to support awarded in the administrative
proceeding, if any changes are required by a change in
overnights, shall have a prospective application only.
5. [The wife] argues the Court has authority to retroactively
change the administrative support order. [The husband] argues
this Court lacks jurisdiction to retroactively change the
administrative support award. The Court reserves ruling on
this issue and shall address it at a subsequent hearing.
(Emphasis added.) The circuit court subsequently entered the
following order on September 21, 2018 ...