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holding that the trial court abused its discretion by including a conditional timesharing provision that would come into play if one of the parties relocated
Summary of this case from Jennings v. FredesOpinion
No. 1D20-680
05-11-2021
Joshua Adam AMIOT, Appellant, v. Ashley Nicole OLMSTEAD, Appellee.
Jennifer L. Sweeting and Jerry L. Rumph, Jr., of Sweeting & Rumph, P.A., Tallahassee, for Appellant. Shannon L. Novey, Christin F. Gonzalez, Jerome M. Novey, and Jasmine Summer Henry of Novey+Gonzalez, Tallahassee, for Appellee.
Jennifer L. Sweeting and Jerry L. Rumph, Jr., of Sweeting & Rumph, P.A., Tallahassee, for Appellant.
Shannon L. Novey, Christin F. Gonzalez, Jerome M. Novey, and Jasmine Summer Henry of Novey+Gonzalez, Tallahassee, for Appellee.
Rowe, J.
Joshua Adam Amiot appeals a final order denying a petition filed by his former wife, Ashley Nicole Olmstead, to relocate to California with the parties’ minor child, but granting her motion to modify timesharing. Amiot does not challenge the portion of the order denying Olmstead's relocation petition. But he argues that the trial court abused its discretion by 1) making a prospective determination of the child's best interests in the timesharing order; 2) denying Amiot's motion for attorney's fees and costs; 3) allowing grandparents to exercise timesharing when either parent could not exercise their timesharing rights; and 4) awarding child support. We affirm the second and third issues without further comment. We also affirm the fourth issue as explained below. But we reverse the trial court's ruling on timesharing.
We first address the timesharing order. For the most part, Amiot does not quarrel with the timesharing plan set out in the order. But he argues that the trial court improperly included a conditional provision for timesharing should Olmstead relocate her residence again near Bay County. We review the trial court's ruling for an abuse of discretion. Raulerson v. Wright , 60 So. 3d 487, 489 (Fla. 1st DCA 2011).
The final judgment dissolving the parties’ marriage was rendered in 2018. The judgment adopted a marital settlement agreement (MSA) that established equal timesharing. But soon after the final judgment was rendered, Olmstead received military orders to transfer to California. She petitioned the trial court under section 61.13001, Florida Statutes (2018), for approval to relocate with the child.
After a three-day evidentiary hearing, the trial court denied the petition. But the court modified the timesharing plan provided under the final judgment. The trial court ordered a long-distance parenting plan that gave the parties roughly equal timesharing during the child's preschool years. When the child entered first grade, the trial court's order provided that Amiot would have majority timesharing. But the trial court also added a conditional provision that would come into play should Olmstead relocate again in the future and establish a principal residence within sixty miles of Bay County. In that circumstance, the trial court ordered that the parties would return to the timesharing plan they agreed to under the MSA. This was an abuse of discretion because the trial court could not prospectively determine the child's best interest based on a future and undetermined relocation by the mother.
The record on appeal does not include the transcript from the final hearing.
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Section 61.13001(3), Florida Statutes (2018) requires that, unless the parents of a minor child agree, when a parent seeks to relocate with the child, the relocating parent must petition the circuit court for approval. Id . " ‘Relocation’ means a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing." § 61.13001(1)(e), Fla. Stat. (2018). This means that—absent an agreement—a parent seeking to relocate her principal residence more than fifty miles from her current residence must petition for relocation. See Arthur v. Arthur , 54 So. 3d 454, 459 (Fla. 2010).
And when the trial court considers a petition for relocation, it must determine the child's best interests at the time of the final hearing . Id. Our supreme court has explained:
[A] trial court is not equipped with a "crystal ball" that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a "present-based" analysis.
Id.
The trial court's conditional award of timesharing based on the mother's potential relocation in the future was not a present-based determination of the child's best interests. More importantly, the court's prospective award of timesharing contravenes the statutory requirement for a parent to file a relocation petition when relocating her principal place of residence to a new residence more than fifty miles away from the old residence. We thus reverse the trial court's order and remand with instructions to strike the conditional provision from its order.
We next address the trial court's ruling on child support. We review that decision for an abuse of discretion. Brown v. Brown , 180 So. 3d 1070, 1072 (Fla. 1st DCA 2015). After the court awarded roughly equal timesharing and ordered that Olmstead bear the expense of flying the child to and from California, it made two determinations on child support. The court did not award child support from 2020 through 2022. But beginning in 2023, the trial court ordered that the parties pay child support based on the child support guidelines and the parties’ income and timesharing that year. The trial court did not attach a child support guidelines worksheet to support its award. And it made no findings to explain the child support award.
Under section 61.13(1)(a), Florida Statutes (2018), "the court may at any time order either or both parents who owe a duty of support to a child to pay support to the other parent." The child support order must provide, among other things, "[a] schedule, based on the record existing at the time of the order, stating the amount of the monthly child support obligation for all the minor children at the time of the order," and "[t]he month, day, and year that the reduction or termination of child support becomes effective." § 61.13(1)(a) 1.b, 1.c., Fla. Stat. And under section 61.30(1)(a), Florida Statutes (2018):
The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.
Here, the trial court did not specify what findings it made, or whether it departed from the guideline amount. Even so, the lack of a transcript of the final hearing impedes our review of the trial court's order. See Shaw v. Nelson , 4 So. 3d 740, 744 (Fla. 1st DCA 2009) (affirming trial court's child support determination when hearing transcript provided competent, substantial evidence to support that determination). Amiot's failure to provide a transcript of that hearing defeats our ability to review the factual or legal basis for the trial court's ruling on child support. See McGee v. McGee , 264 So. 3d 1087, 1089 (Fla. 1st DCA 2019) ("[W]ithout 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."). Because Amiot has not shown "reversible error [ ] apparent from the face of the order on appeal," we affirm the trial court's order on child support. See Klette v. Klette , 785 So. 2d 562, 563 (Fla. 1st DCA 2001).
AFFIRMED in part, REVERSED in part, and REMANDED .
Roberts and Tanenbaum, JJ., concur.