IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR. Case No. 0X DR xxxx N

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1 IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR LEE COUNTY, FLORIDA CIVIL ACTION D. S., vs. F. S., Former wife & respondent, Former husband & petitioner, Case No. 0X DR xxxx N ORDER GRANTING FORMER HUSBAND S MOTION FOR POST JUDGMENT TEMPORARY RELIEF This matter having come before e court on e former husband s motion for post judgment temporary relief filed Date omitted / 2014, it is ordered: 1. Findings The faer filed a supplemental petition to modify on Date omitted /2014. Pursuant to at petition, he filed e motion for temporary relief on 7/18/2014. The parties have two daughters, now ages 17 and 15. There is no doubt at e allegations of e motion concerning facts omitted. The faer reports at because of what happened facts omitted e children are afraid to live at e moer s house, ey are uncomfortable ere, and ey do not want to live ere. He also believes e moer has harder discipline an he does and is is anoer reason ey do not want to live wi her. The moer agrees at she is more strict an e faer and she also believes is is a reason ey do not want to live wi her. The children have not telephoned e moer or oerwise made any contact wi her since 6/7/2014 when ey came to live at e faer s house. The moer testified at before 6/2014 e children were routinely leaving her home at night surreptitiously. She said ey were leaving my house at night rough e bedroom window, and she was upset about is. She said ey would not obey her, so on 6/7/2014 she took em to e faer s house and asked him to keep em. She was concerned at ey were not safe at night when ey were out of her house and she did not know ey were gone or where ey went. She was upset because ey were disobeying her. They have been living wi e faer full time since en. Now she wants em to come back to live wi her pursuant to e final time-sharing order previously entered. She did not abandon e children on 6/7/2014 when she took em to e faer s house, as e faer alleged in his motion. She took em to a safe place where she knew ey would be taken care of. This is not abandonment. This was e responsible ing to do when she felt at she could not keep em at her house. From e fact at e children were routinely absconding from e moer s house at night e court infers at ey do not want to be ere or at ey are uncomfortable being ere. If ey liked her house and were happy living ere, ey would stay ere. So, from e evidence today ere is no doubt at e children do not want to live at e moer s house. DCF reported to e parents at e moer s home is now low risk for facts omitted. Regarding child support, e moer said at if e children do not want to live wi her, en she does not believe she should have to pay child support. The moer is a customer service representative working for omitted. She earns $1,

2 gross per mon. She pays $336 a mon for her own heal insurance according to her financial affidavit. She pays no premium for e children s heal insurance. The faer is a sales representative for a omitted company. He earns $3,200 gross per mon. He pays $120 per mon for his heal insurance according to his financial affidavit. He pays no premium for e children s heal insurance coverage. 2. Ruling 2.1 The faer s motion is granted The faer s motion for temporary relief is granted. The court finds at an emergency exists concerning e children and e emergency justifies a temporary modification of e existing, final time-sharing order. The court has jurisdiction to temporarily modify a time-sharing order in a final judgment if: (1) ere are allegations and proof of facts at amount to a substantial change in circumstances since e final judgment; (2) e temporary modification is in e best interests of e children; and (3) e circumstances of e case amount to an emergency so at e final time-sharing schedule must be amended temporarily pending a trial on a supplemental petition to modify e final judgment. In order to obtain a temporary custody modification, e moving party must satisfy a two part test by establishing rough competent, substantial evidence at (1) ere has been a substantial or material change in circumstances and (2) e modification is in e best interest of e child... Bon v. Rivera, 10 So.3d 193, 195 (Fla. 4 DCA 2009). See also Wade v. Hirshmann, 903 So.2d 928 (Fla. 2005). To comply wi due process, before a party may bring proof on an issue at a hearing, e party raising e issue must make allegations so at e oer party has prior notice at e issue will be raised and an opportunity challenge and be heard on e issue. See, e.g., Walls v. Sebastian, 914 So.2d 1110 (Fla. 4 DCA 2005); Todaro v. Todaro, 704 So.2d 138 (Fla. 4 DCA 1997). In is context, at is, a request to modify a time-sharing order in a final judgment, e party requesting e change must file a supplemental petition as well as a motion for temporary relief. The faer has filed such a pleading and such a motion, so e moer has notice of e relief requested. See, e.g., Braswell v. Braswell, 935 So.2d 604, 606 (Fla. 3d DCA 2006), in which e court said: It appears at e faer s motion was merely a post-judgment attempt to modify custody by way of an emergency motion.... Florida law unequivocally requires at dissolution judgment modifications assert any change of circumstances in a petition. See, e.g., 61.13(3)(2010): (3)... A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified wiout a showing of a substantial, material, and unanticipated change in circumstances and a determination at e modification is in e best interests of e child.... (Emphasis supplied.) This statute, which is a restatement of e principle in Wade, supra, applies to post judgment temporary motions to modify as well as post judgment supplemental petitions to modify. Here, e faer s supplemental petition and his motion for temporary relief allege a substantial change in circumstances and a change at is in e best interests of e children. They also allege facts at amount to an emergency. These allegations were proven at is hearing. A substantial change in 2

3 circumstances has occurred and a time-sharing schedule in which e children reside at his house full time is in eir best interests. The emergency in e circumstances of is case is at e children are not staying at e moer s house. They are routinely absconding from her house wiout her permission or knowledge. There is no evidence at ey are not staying as ey should at e faer s house since 6/7/2014 or oerwise not living by his rules. In Smi v. Crider, 932 So.2d 393 (Fla. 2d DCA 2006) e second district held: Generally a court may not modify a final judgment of dissolution of marriage on a temporary basis pending a final hearing on a petition for modification unless ere is an actual, demonstrated emergency. (Citation omitted.) This rule is founded upon e principles of res judicata arising from e entry of a final judgment and upon e due process concerns raised by altering e rights of e parties affected by e judgment. Id. at 398. For e foregoing reasons, e faer s motion is granted temporarily pending furer temporary hearings or trial on e merits of his supplemental petition. 2.2 Temporary time-sharing schedule Temporarily, e children shall reside 100% of e overnights at e faer s house pending furer order of e court. The court has considered all of e factors in 61.13(3)(a) - (t) in making is temporary order. The children shall make such time-sharing wi e moer as e parties may agree from time to time. The court has not heard from e children concerning eir preferences in a time-sharing schedule. The preferences of children of is age under ese circumstances is a significant consideration in fashioning a time-sharing schedule for ese children. See 61.13(3)(i). This temporary order is based on e evidence at is hearing on e faer s motion for temporary relief. 2.3 Temporary parental responsibility order Temporarily, e faer is granted sole parental responsibility for e children. The court finds e parents are now unable to communicate and make joint parenting decisions concerning e children and is is not in e children s best interests. One parents needs legal auority to make parenting decisions. 2.4 Temporary suspension of existing child support order Temporarily, any child support order entered in is case or any oer case at requires e faer to pay child support to e moer is hereby suspended pending furer order in is case effective 6/1/2014. The children have been living wi e faer full time since June Any income deduction order requiring any employer of e faer to deduct child support from his wages or salary or oer compensation is also canceled as of 6/1/2014. Any sums received by e depository from e faer or on his account from any employer after is date or before is date if still in e control of e depository shall be returned to e payor of e funds. order. 2.5 Temporary child support order Temporarily, e court enters e following child support 2.6 Fla. Stat (1) provides: Each parent has a fundamental obligation to support his or her minor or legally dependent child. 3

4 2.7 Child support calculation The court s child support calculation is attached as Exhibit A. As required by 61.30, e calculation is based on e following findings of fact: (1) e child spending 365 days each year, or 100% of e year, wi e faer and zero overnights wi e moer; (2) $1, gross income per mon for e moer; (3) $3,200 gross income per mon for e faer; (4) wi e faer paying $120 for his heal insurance per mon; (5) e moer paying $336 for her heal insurance per mon; (6) e children s heal insurance costing $0 per mon; (7) being paid by neier parent; (8) e parties have a reasonable employment day care expense of $0; (9) e parent wi whom e children live most of e time under e time sharing schedule ordered qualifying for e dependent's exemption for e children and qualifying for e Earned Income Tax Credit; (10) e net income of each party as determined by 61.30(3), obtained by subtracting allowable deductions from gross income. Allowable deductions include: (a) Federal, state and local income tax deductions, adjusted for actual filing status and allowable dependents and income tax liabilities. 1. The actual filing status of e moer is: Single. The allowable dependents of e moer is: The actual filing status of e faer is: Head of Household. The allowable dependents of e faer is: The income tax liabilities of e parties is shown on Schedule A. (b) Federal insurance contributions or self employment tax is shown on Schedule A. (c) Mandatory union dues. (d) Mandatory retirement payments. (e) Heal insurance payments, excluding payments for coverage of e minor children. (f) Court-ordered support for oer children which is actually paid. (g) Spousal support paid pursuant to a court order from a previous marriage or e marriage before e court. Resulting in net monly income of $1, for e moer and $2, for e faer; all of which e court hereby finds and orders. 2.8 Dependent s exemption order (1) Regarding e dependent s exemption, at is time e court finds at under e attached time-sharing schedule e children reside wi e faer for 365 days out of e year and wi e moer e balance of e year, so e children are wi e faer most of e days out of each calendar 4

5 year. (2) Therefore, under e Internal Revenue Code, e faer is entitled to e dependent s exemption for e children on e federal income tax return Monly current minimum child support amount Therefore, as shown on Exhibit A attached, e monly amount of e current minimum child support due from e moer to e faer is $423, plus a collection fee of $5.25 or 4% wi each payment but not less an $1.25, whichever is less Retroactive child support The court orders at child support was payable from 6/1/2014, because ere is no competent, substantial evidence at justifies e nonpayment of child support since at date Retroactive Child Support Order The total amount of e retroactive child support owed is reflected in e case history for is case maintained by e depository after ese child support orders are entered by e clerk or D.O.R. The retroactive shall be paid at e rate of $40 per mon, which amount is included in e sum paid below Current Support and Retroactive Amount Per Mon Therefore, e moer shall pay to e faer e total of: (1) current child support per mon, $423; (2) an retroactive payment per mon, $40 until e retroactive support is paid in full and when it is paid, en is retroactive payment stops; and (3) collection fee of $5.25 or 4% wi each payment but not less an $1.25, whichever is less, if required by law. All payments shall be paid to e Department of Revenue in Tallahassee, as provided below. The court hereby reserves jurisdiction to modify e interval for which support is payable to weekly, biweekly, bimonly or any oer interval at any time hereafter upon motion by eier party or e court s own motion First Payment Due Date The first payment of child support is due 6/1/2014 and on a like day of each mon ereafter Termination of child support; schedule of e amount of child support Pursuant to 61.13(1)(a)1., assuming at no supplemental petition alleging a substantial change in circumstances is filed and taken to trial after is date or at no agreement between e parties is reached modifying e child support after is date, e child support ordered here shall terminate on e 18 birday of e older child, so e last support payment under is order is due on 3/1/2015, subject to proceedings under (2) or 61.13(1)(a)2., as provided below. The court s child support calculation for e remaining child is attached as Exhibit B. At e time of is order, as required by 61.13(1)(a)1.,b., e amount of child support at will be owed for e child remaining after e first child s 18 birday is $271 beginning 4/1/2015 and e 5

6 last payment will be 12/1/2016, which is e mon in which e next child turns 18, unless at amount is changed by a final judgment after e date of is order after a trial on a supplemental petition to modify e child support or it is changed by e agreement of e parties after is date, subject to proceedings for relief allowed by (2), as provided below. The court makes no finding at (2) or 61.13(1)(a)2. applies in is case because ere was no competent, substantial evidence in e record at is statute will apply to ese children or any of em as ey turn 18 years old and ere is no agreement between e parties at it will apply. This finding is wiout prejudice to eier party to have e court determine wheer is statute does apply at any time hereafter by a motion. Therefore, e court reserves jurisdiction over is child support order in order to determine wheer is statute applies to one or more of e children Income Deduction Order As required by F.S , a separate Income Deduction Order ("IDO") shall be signed by e judge assigned to is case at directs e payor's employer and any future employer to deduct e child support due under is order from any income due to e payor and to forward it to e depository, e Florida Support Disbursement Unit. The form of e IDO must comply wi e form required by e United States Office of Management and Budget. That agency calls an "Income Deduction Order" an "Income Wiholding Order" or IWO, but eier name refers to e same ing: an order to take e child support out of e payor s pay to e extent allowed by law. The IDO or IWO form shall be prepared by e payee or e payor and sent to e undersigned judge for signing and filing. The undersigned judge will not prepare e form of IDO or IWO. Delivering a copy of e IDO or IWO to e payor s employer is e responsibility of e payee and e payor. The court hereby orders e payor to give a copy of e IDO or IWO to his or her employer immediately upon receiving a copy of it, and if e payor does not do so en e payee must give a copy of it to e payor s employer. It is not e responsibility of e undersigned judge to find e payor s employer from time to time and deliver a copy of e IDO or IWO to at employer Place of Payment Child support shall be paid by check or money order payable to and sent to e Florida Support Disbursement Unit, P.O. Box 8500, Tallahassee, FL The payor must write on each check (1) e case number of is case and also e words (2) "Lee County case Addresses and Social Security numbers As required by 61.13(8)(a), F.S., wiin 30 days of is order bo parties are ordered to write to e State Case Registry, P.O. Box 8500, Tallahassee, FL and advise at agency of is Case Number in Lee County, Florida, and eir current names, addresses, social security numbers, telephone numbers, driver s license numbers, and eir employer s name, address, and telephone number, as ese presently exist and as ey change in e future. A copy of any letter wi at information sent to e State Case Registry must also be delivered or mailed to e Clerk of e Court, Lee County, Florida, 1700 Monroe Street, Fort Myers, FL Heal Insurance (A) Heal Insurance The court finds e heal insurance e parties have on e children is reasonable and affordable to e parties. This coverage shall not be canceled and shall be maintained on e children as long as possible or until e parties agree oerwise. The parties shall promptly provide each oer wi cards or oer proof of e coverage when ese are made available by e insurer. (B) Uncovered Medical Bills The parties shall be responsible for any uncovered reasonable and necessary medical bills of e children incurred since e separation date in an amount 6

7 equal to e ratio of eir net incomes reflected on Exhibit A attached (1)(b); Forrest v. Ron, 821 So.2d 1163 (Fla. 3d DCA 2002); Morrow v. Frommer, 913 So.2d 1195 (Fla. 4 DCA 2005); Salazar v. Salazar, 976 So.2d 1155 (Fla. 4 DCA 2008). The ratio of eir net incomes now is: Faer 68% and Moer 32%. After support is not owed for e first, e ratio will be: Faer 67% and Moer 33%. "Medical bills" includes counseling, psychological, psychiatric, orodontic, dental, optical, prescription, physician, hospital and oer medical expenses. If eier parent pays for any such treatment or bill, ey shall be reimbursed for any amount paid beyond eir share of it by e oer parent. They shall be reimbursed only for treatments at are reasonable and necessary. (C) Prompt Request and Prompt Payment If eier parent incurs or has incurred a medical bill on e children, he or she shall send a copy of it to e oer parent wi a cover note asking for payment of e parent s share of e bill. He or she must keep a copy of e bill and e note asking for payment. Upon receipt of such correspondence, e parent receiving it shall promptly reimburse e oer parent for e parent s share of e bill to e oer parent, or he or she shall promptly send a written objection or explanation to e oer parent explaining why e payment is not being made. Each item on e list shall (1) state e name of e medical provider, (2) e date e treatment happened, (3) what e bill was for, (4) e amount of e bill, and (5) wheer it has been paid in full or in part. The parents shall reimburse e oer only by check or money order and shall keep all cancelled checks or money order receipts. (D) Record Keeping During e minority of e children, each parent must maintain a chronological, serial list of all uncovered medical bills ey incur until e children are 18, if he or she expects to be reimbursed for such medical bills, along wi copies of each bill on e list, which bill copies shall be attached to e list wi a staple in e same order as e items on e list. The list of bills shall be in chronological order and must be serially numbered on e list, at is, "1", 2", 3", and so on until e children are 18. The same number must be written on each copy of e bills attached to e list so at each copy of an attached bill matches e correct item on e list. Each item on e list shall (1) state e name of e medical provider, (2) e date e treatment happened, (3) what e bill was for, (4) e amount of e bill, and (5) wheer it has been paid in full or in part. The parents shall reimburse e oer only by check or money order and shall keep all cancelled checks or money order receipts. (E) Enforcement; Mediation If eier parent hereafter seeks enforcement of is order for reimbursement, ey shall first seek mediation wi a mediator provided by court administration. They shall bring ree copies of e list and each numbered bill for which ey seek reimbursement to e mediation for use in e mediation. If mediation is unsuccessful and eier parent ereafter files a motion to enforce reimbursement of medical bills on e child, he or she must bring ree copies of list and each numbered bill for which ey seek reimbursement to e hearing on e motion. The parent claiming payment for a disputed item must bring ree copies of his or her proof of payment, such as cancelled checks, money order receipts, or receipts from insurance companies for payments, to mediation and any hearing. 7

8 Done and ordered in Fort Myers, Lee County, Florida, is Copies provided to: R. Thomas Corbin, Circuit Judge 8