NICOLE S. MILLER, N/K/A NICOLE CARLSON-ABNEY, APPELLANT,
v.
DARREN MILLER, APPELLEE
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The court held that the trial court erred in failing to make specific findings regarding the allocation of travel expenses for child visitation and in failing to adequately consider the retroactivity of child support modification.
[1] Child support guidelines contemplate that travel expenses for visitation are childrearing expenses that should be shared by parents in accordance with their financial mea…
[2] A trial court must make findings to support its allocation of visitation travel expenses, including the number of visits contemplated and the reasonable costs entailed.
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Join FLexlaw to unlock all legal intelligenceFollowing dissolution, the former wife sought modification of child support. The trial court reduced the former husband's child support obligation to …
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BENTON, J.
The former wife appeals an order entered in post-dissolution modification proceedings insofar as the order denies her request that the former husband be ordered to pay her attorney’s fees, insofar as the order awards child support in an amount reduced by what she contends is an excessive allowance for travel expenses the former husband may expect to incur in visiting the parties’ children, and insofar as the order fails to award increased child support retroactive to the filing of her petition. We affirm the trial court’s decision not to award attorney’s fees, but we reverse the rest of that portion of the order challenged on appeal, and remand with directions that the trial court reconsider the treatment of the travel expense issue, including the question of retroactivity, after making appropriate findings.
On the basis of the former husband’s child support guidelines worksheet, the trial court concluded that the former husband was responsible for seventy-five per cent of the parties’ child support expenses and that the former wife was responsible for twenty-five per cent, not counting travel expenses. The trial court then ruled that the former husband
should receive financial consideration in the cost of the great distance he has to travel to be with his sons, [and] reduced his child support obligation accordingly, ($1,277.00-$422.00 = $850.00 [sic] per month). Further, $422.00 per month is not 100% of the Father’s travel expenses based on the number of visits, considering the miles traveled, food and lodging for the children and other expenses....
The former wife contends that, in reducing monthly child support by $427.00 (five dollars more than the order acknowledged), the trial court allocated to her at least eighty-two per cent of the transportation expenses it anticipated the former husband would incur in visiting the children. While this contention is not without record support, it is not clear from the record, in the absence of findings, what amount of travel expenses the trial court anticipated or how the amount was arrived at.
We remand for findings as to the number of visits contemplated and the amount of travel expenses such visitation will reasonably entail, and in order that the trial court can allocate visitation travel expenses in the same guidelines ratio as governed allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation “is needed to achieve an equitable result.” § 61.30(11)(k), Fla. Stat. (1997). See Coons v. Coons, 765 So. 2d 167, 174 (Fla. 1st DCA 2000) (“As ‘[t]he expense of transporting the minor child for visitation is a childrearing expense like any other,’ such expenses ‘should be shared by the parents in accordance with their financial means’ according to section 61.30, Florida Statutes (1997). See [Drakulich v. Drakulich, 705 So. 2d 665, 667 (Fla. 3d DCA 1998)]; Willey v. Willey, 683 So. 2d 647 (Fla. 4th DCA 1996).”).
On remand, after the court has revisited the amount of child support, it should also reconsider the question of making child support retroactive to the date the former wife filed her counterpetition seeking an increase in child support. “When child support is modified, retroactivity is the rule rather than the exception.” Levi v. Levi, 780 So. 2d 261, 263 (Fla. 3d DCA 2001) (citing Nierenberg v. Nierenberg, 758 So. 2d 1179, 1180 (Fla. 4th DCA 2000)). The trial court’s stated rationale for declining to order retroactive child support lacks any basis in the court’s findings, and does not explain why a monthly amount already (perhaps excessively) reduced to allow for the former husband’s travel expenses is appropriately set off against his travel expenses a second time, retroactively.
The decision whether to make a child support award retroactive to the date of filing the petition is a matter within the trial court’s discretion. Pelton v. Pel-ton, 617 So. 2d 714 (Fla. 1st DCA 1992); Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992); Barrs v. Barrs, 590 So. 2d 980 (Fla. 1st DCA 1991). Nevertheless, “[i]t is an abuse of discretion, ... to fail to award support from the date of the petition for modification where the need for the support and the ability of the former spouse to pay existed at the time the modification petition was filed.” Anderson, 609 So. 2d at 89; Davis v. Davis, 581 So. 2d 1005 (Fla. 1st DCA 1991); Friedman v. Friedman, 307 So. 2d 926, 927 (Fla. 3d DCA 1975).
Pitts v. Pitts, 626 So. 2d 278, 282 (Fla. 1st DCA 1993). Accord Davies v. Turner, 802 So. 2d 1195, 1196 (Fla. 1st DCA 2002); Bardin v. State, Dep’t of Revenue, 720 So. 2d 609, 611 (Fla. 1st DCA 1998); Beal v. Beal, 666 So. 2d 1054, 1054 (Fla. 1st DCA 1996) (requiring award where “the child’s need and the [father’s ability to pay existed at the time of the filing of the petition for dissolution”); Campbell v. Campbell, 635 So. 2d 44, 46 (Fla. 1st DCA 1994) (same where “the child’s increased need for support and the former husband’s ability to pay the increased child support existed at the time the former wife’s petition for modification was filed.”); Reeves v. Reeves, 586 So. 2d 1345, 1346 (Fla. 1st DCA 1991) (same); Davis v. Davis, 581 So. 2d 1005, 1005 (Fla. 1st DCA 1991) (same).
Affirmed in part, reversed in part, and remanded.
BOOTH and Van NORTWICK, JJ„ concur.
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Hindle v. Fuith, 33 So. 3d 782 (Fla. 5th DCA 2010)…in Florida, thereby, incurring substantial travel expenses to effectuate his visitation. The expense of visiting the child in Florida from the father’s residence in the United Kingdom is a childrearing expense like any other. See Miller v. Miller, 826 So. 2d 480 (Fla. 1st DCA 2002); Drakulich v. Drakulich, 705 So. 2d 665, 667 (Fla. 3d DCA 1998). Child support guidelines provide that transportation expenses, [*787] like other childrearing costs, should be shared by the parents in accordance with their financ…
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Christ v. Christ, 854 So. 2d 244 (Fla. 1st DCA 2003)…at 650. Mr. Christ, whose move overseas is work-related, argues the trial court abused its discretion in limiting Mrs. Christ’s equal contribution to visitation expenses only to that period when he lived in the nation’s capital. In Miller v. Miller, 826 So. 2d 480, 481 (Fla. 1st DCA 2002), where the issue of visitation travel expenses arose in modification proceedings, we recognized the general rule that such expenses (like other childrearing expenses) should be allocated between the parties “in the same guid…
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Mayfield v. Mayfield, 103 So. 3d 968 (Fla. 1st DCA 2012)…on by failing to make the increased child support award retroactive to the date the supplemental petition for modification was filed. We agree. “When child support is modified, retroactivity is the rule rather than the exception.” Miller v. Miller, 826 So. 2d 480, 481 (Fla. 1st DCA 2002) (quoting Levi v. Levi 780 So. 2d 261, 263 (Fla. 3d DCA 2001)). “It is an abuse of discretion ... to fail to award support from the date of the petition for modification where the need for the support and the ability of the f…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (20 total)
- Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992)
- Tish Bardin v. State, 720 So. 2d 609 (Fla. 1st DCA 1998)
- Pelton v. Pelton, 617 So. 2d 714 (Fla. 1st DCA 1992)
- Pitts v. Richmond B. Pitts, 626 So. 2d 278 (Fla. 1st DCA 1993)
- Monteze Barrs v. Barrs, 590 So. 2d 980 (Fla. 1st DCA 1991)
- Dushan Drakulich v. Branka Drakulich, 705 So. 2d 665 (Fla. 3d DCA 1998)
- Friedman v. Laurence Friedman, 307 So. 2d 926 (Fla. 3d DCA 1975)
- Levi v. Levi, 780 So. 2d 261 (Fla. 3d DCA 2001)
- In the Interest of B.L.B. and J.D.H., 635 So. 2d 44 (Fla. 1st DCA 1994)
- Montadas v. Dade Scrap Iron & Metal, Inc., 666 So. 2d 1054 (Fla. 3d DCA 1996)