Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT EMILY A. HARRINGTON, f/n/a EMILY A. KEMP, Appellant, v. JOHN KEMP, Appellee. No. 2D22-1257 August 25, 2023 Appeal from the Circuit Court for Hillsborough County; Denise A. Pomponio, Judge. George A. Vaka of Vaka Law Group, Tampa, for Appellant. Kim A. Maxwell and Michael L. Lundy of Older Lundy Koch & Martino, Tampa, for Appellee. CASANUEVA, Judge. Emily A. Harrington (the Former Wife) appeals an order dismissing her child support modification petition based on John Kemp's (the Former Husband's) ore tenus motion for involuntary dismissal. The petition alleged that a substantial change in the parties' incomes warranted a modification of the child support provision in the final judgment. However, after conducting an evidentiary hearing solely on the needs of the children, the trial court dismissed the Former Wife's petition due to her failure to demonstrate a substantial change in the needs of the children. The Former Wife argues that the trial court erred in dismissing the petition where the substantial change in circumstance alleged in the petition was not considered. We agree. The alleged basis for modification was a change to the parties' incomes, not a change in the needs of the children. Therefore, because the trial court dismissed the petition after concluding that the Former Wife did not prove a substantial change in the needs of the children and did not address the change and disparity in the parties' incomes, we reverse and remand for further proceedings. Background The parties were married in 2004 and had two children together. After ten years, the marriage was dissolved by a final judgment entered on October 5, 2015. The final judgment incorporated the parties' marital settlement agreement and parenting plan. In the marital settlement agreement, the parties agreed that because they would exercise equal timesharing and had comparable incomes at the time of the agreement, neither party would be obligated to pay the other child support. However, in 2018, the Former Wife filed a second amended supplemental petition for modification alleging that her income drastically declined since the final judgment such that she could no longer afford the children's needs, whereas the Former Husband was earning considerably more.1 The Former Wife requested that the trial court modify the final 1 Prior to dissolution, the Former Husband's financial affidavit indicated a monthly net income of $6,294.00, which increased to $36,322.00 before the hearing on the Former Wife's petition for 2 judgment to require the Former Husband to pay child support in accordance with the guidelines provided in section 61.30, Florida Statutes (2018). Thereafter, the Former Husband filed an updated motion for summary judgment. The trial court denied the updated motion and ordered the issue of the children's needs be bifurcated from the remaining issues. During the hearing on the children's needs, the Former Wife provided the trial court with a detailed list of their needs and whether those needs were currently being met. Some of the listed needs included rent and utilities, new beds, desks and other furniture, a piano and piano lessons, keepsake trunks, dog toys, luggage, manicures, lip gloss, holiday decorations, equestrian lessons, summer vacations, Disney passes, and long weekend trips. The Former Wife estimated that the children's needs totaled over two hundred thousand dollars per year. However, the trial court did not permit any evidence on the Former Wife's ability to meet these alleged needs to be heard. When the Former Wife's counsel questioned the Former Husband about his increased income and the Former Wife's decreased income, the trial court sustained the Former Husband's relevancy objections because the parties were present "on the issue of needs." The trial court also sustained several other objections to questions concerning the Former Husband's lifestyle and standard of living. And at the conclusion of the hearing, the Former Husband moved for an involuntary dismissal of the supplemental petition due to a lack of evidence establishing a substantial change in the needs of the children. The trial court granted the motion. The written order which followed stated that the evidence at the hearing modification. The Former Wife's monthly net income prior to dissolution was $3,557.00 and had since decreased to $971.00. 3 pertained only to what [the Former Wife] believes are the current needs of the children. She presented no evidence whatsoever of how these current needs are any different than what the children's needs were when child support was established in the order she seeks to modify. Therefore, the Former Wife failed to satisfy her burden to prove that there has been a substantial change in the needs of the children. The trial court made no findings as it relates to the change and disparity in the parties' incomes. Instead, the trial court found that because the Former Husband was willing to pay and had historically paid for many of the children's needs, there was no need for a modification of child support. In doing so, however, the trial court never reached the basis of the modification petition and thereby failed to conduct the proper procedure to determine what, if any, child support the Former Wife was entitled to receive pursuant to the guidelines. Analysis "The standard of review governing a trial court's decision to deny modification of child support is abuse of discretion." Funderburk v. Ricenbaw, 357 So. 3d 188, 191 (Fla. 2d DCA 2023) (quoting Kozell v. Kozell, 142 So. 3d 891, 893 (Fla. 4th DCA 2014)). We review the trial court's application of the law de novo. A.G.W. v. C.L.C., 355 So. 3d 1062, 1065 (Fla. 2d DCA 2023). In order to establish a need for modification, a petitioner is required to demonstrate that "(1) there has been a substantial change in circumstances, (2) the change was not contemplated at the time of the final judgment of dissolution, and (3) the change is sufficient, material, permanent, and involuntary." Tanner v. Tanner, 330 So. 3d 567, 568 (Fla. 2d DCA 2021) (quoting Dogoda v. Dogoda, 233 So. 3d 484, 486 (Fla. 2d DCA 2017)). And as it pertains to the instant case, the Former Wife 4 alleged that the substantial change in circumstance was a decrease in her income and an increase in the Former Husband's income, such that the parties were no longer equally able to support their children. The Florida Supreme Court has held that a substantial increase in the ability of one party to pay is itself sufficient to justify a modification of child support. Miller v. Schou, 616 So. 2d 436, 437-38 (Fla. 1993). Similarly, a decrease in the Former Wife's income is such a change that would require a recalculation of support. Thus, the present status of the petition alleges a substantial change in circumstance that, if either allegation is proven, would warrant a modification. However, the trial court declined to hear evidence on the parties' change in income and rejected the Former Wife's attempts to introduce evidence on the parties' standards of living or lifestyles during the hearing. As a result, the trial court erroneously dismissed the Former Wife's petition without hearing or addressing the basis for it.2 2 That is not to say that the children's needs would never become relevant during the proceedings. Once a substantial change in circumstances has been established, the trial court must look to the parents' combined net income to determine the minimum child support needed. § 61.30(6). If the combined net income is over $10,000.00, the minimum support is calculated by looking to the guideline schedule in section 61.30(6) plus the provided percentages—based on the number of children the parties have—multiplied by the amount of income over $10,000.00. § 61.30(6)(b). Where one parent is considerably wealthy, the amount of child support authorized by the guidelines may far exceed the children's needs. And while a child is entitled to live at the level enjoyed by the parent, a child is "only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle," and "Florida's trial courts are fully capable of making the determination of an appropriate amount of support in these cases." Ferraro v. Ferraro, 971 So. 2d 826, 828 (Fla. 3d DCA 2007) (quoting Miller, 616 So. 2d at 439). 5 Conclusion We are not called on at this time to decide whether it would be an abuse of discretion if, after hearing the evidence on the issue alleged in the petition, the trial court determined an increase in child support was not appropriate. We hold only that before determining whether a modification of child support would be supported under the circumstances, the court must first hear evidence on the issue alleged, confer with the statutory guidelines, and make the necessary findings. We reverse and remand for further proceedings. Reversed and remanded. NORTHCUTT, J., and CASE, JAMES R., ASSOCIATE SENIOR JUDGE, Concur. Opinion subject to revision prior to official publication. 6