Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT T.T.L., Appellant, v. F.A.L., Appellee. No. 2D22-1750 July 26, 2023 Appeal from the Circuit Court for Hillsborough County; Wesley D. Tibbals, Judge. Brandon Rotbart of Law Office of Brandon A. Rotbart, P.A., North Miami, for Appellant. No appearance for Appellee. KELLY, Judge. In this paternity action, the mother challenges the final order that determines the father's child support obligation to be less than half the amount recommended by the child support guidelines and that denies her motion for attorney's fees. We reverse the trial court's determination of child support as the trial court's reasons for the deviation are legally insufficient. We also reverse the denial of attorney's fees to the mother. The mother, T.T.L., filed a petition to determine paternity. She requested child support and "such other relief as may be appropriate." The mother was unrepresented by counsel at the time. The father, F.A.L., filed a pro se answer to the petition but did not file a counterpetition. DNA test results confirmed F.A.L.'s paternity, and the trial court rendered a final judgment finding that F.A.L. is the legal and biological father of the child. The mother's financial affidavit showed that she received a modest income from her job as a "customer care specialist." She reported that the child's monthly needs were approximately $700. The father is in the entertainment business and has various sources of income. However, during the proceedings he was evasive when questioned about his income and gave contradictory testimony regarding his financial status, which the trial court found to be less than credible. The court noted in the final judgment that "the Father has not been forthcoming with his financial discovery and has failed to comply with numerous orders compelling the same." Although the father appeared at the first hearing, he did not appear at the final hearing. The father's inappropriate conduct resulted in the trial court striking his pleadings. Some evidence of the father's income was obtained by subpoena to the father's bank. However, the trial court noted that "the Father's actual income is most likely more than what is contained in this one Wells Fargo account." Based on the father's bank account information, the court calculated the father's net monthly income to be $74,317 and his monthly child support obligation under the guidelines to be $4,627.81. The trial court acknowledged that its determination of the father's income was a conservative estimate based on scant evidence; nonetheless, the court reduced the father's monthly child support 2 obligation to $2,110. The court also found that the mother was not entitled to attorney's fees because she did not plead for fees in her original petition. The mother challenged the child support determination and the denial of fees in a motion for rehearing, which the trial court denied without comment. Child Support The trial court found that a deviation from the guideline amount was necessary to achieve an equitable result. The court stated that "due to the totality of the evidence presented, ordering payment of the guideline amount would be inappropriate . . . in light of the demonstrated, actual needs of the child." The court also stated that it had considered that "the child has only seen and interacted with the Father on three or fewer occasions" and "the Mother has been able to meet the child's needs (absent daycare expenses for a period of time)." The trial court cited section 61.30(11)(a)(11), Florida Statutes (2021), which allows a court to adjust the child support amount as "needed to achieve an equitable result." The court also relied on Miller v. Schou, 616 So. 2d 436, 439 (Fla. 1993) ("The child is only entitled to share in the good fortune of his parent consistent with an appropriate lifestyle."), Finley v. Scott, 707 So. 2d 1112, 1116 (Fla. 1998) (noting that the child support guidelines allow for "an equitable adjustment of the minimum child support obligation based upon the facts and circumstances of a particular case"), and Ferraro v. Ferraro, 971 So. 2d 826, 828 (Fla. 3d DCA 2008) (holding that, even though the child support guidelines obligated the father to pay a higher amount than he was currently paying, the mother's petition for more child support was properly denied where the children's needs were being met by the amount the father was 3 currently paying). These cases do not support the guidelines reduction ordered here. In Finley, 707 So. 2d at 1116, the court explained that the child support schedule in section 61.30(6) is "clearly rebuttable." However, if the trial court decides to vary more than five percent from the guidelines, the trial court must explain in writing or announce a specific finding on the record why the payment of the guideline amount would be "unjust or inappropriate." Id. at 1117. Here, the trial court's written findings are legally insufficient bases for departing from the guidelines. The father's choice not to participate in the child's life does not support a reduction in his child support obligation. See Dep't of Revenue v. B.J.M., 127 So. 3d 859, 861 (Fla. 2d DCA 2013) (holding that the trial court could not deviate downward from the child support guidelines based on the father's decision not to pursue parenting time because the child did not know him). Nor does the mother's ability to provide the child with her basic needs excuse the father from supporting the child. See Smith v. Smith, 474 So. 2d 1212, 1213 (Fla. 2d DCA 1985) ("The child's residence with his mother does not mean that the father must do no more than provide a survival level of support."). The trial court based the award on the mother's financial affidavit estimating the child's expenses. In doing so, the court failed to consider that expenditures for the child's needs were limited by the mother's modest income. As the supreme court stated in Miller: As a practical matter, it is impossible to believe that any court would award the same amount of child support where the paying parent is a multimillionaire as it would where the paying parent makes a modest living. While technically the child's basic survival needs would be the same in each case, the determination of "need" in awarding child support takes into account more than just the basic necessities of survival. 4 616 So. 2d at 438. Further, the trial court departed from the statutory guidelines even though the father did not appear at the final hearing and made no request for a reduction in child support. The court's ruling not only excuses the father's failure to engage in the paternity proceedings, but it also rewards the father for his lack of candor about his income. In Hicks v. Hicks, 948 So. 2d 63, 64-65 (Fla. 5th DCA 2007), the court held that the father's failure to fully and completely disclose financial information for the purpose of determining child support justified the trial court's imposition of an upward deviation from the child support guidelines. Here, the trial court did the opposite. It declined to impute income to the father as requested by the mother, and it sua sponte reduced the father's support obligation. Attorney's Fees The trial court denied the mother's request for attorney's fees on the ground that she did not include a plea for fees in her petition to establish paternity. The trial court overlooked the fact that the mother was unrepresented by counsel when she filed her petition and was not entitled to fees at that time. Thereafter, the issue of attorney's fees was raised or addressed numerous times in filings, orders, and at an evidentiary hearing. Thus, the father was aware that the mother sought attorney's fees and never objected to the failure to plead attorney's fees and costs in an amended petition. "Where a party has notice that an opponent claims entitlement to attorney's fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney's fees." 5 Stockman v. Downs, 573 So. 2d 835, 838 (Fla. 1991); see also Fla. Fam. L. R. P. 12.190(b) ("When issues not raised by the pleadings are tried by express or implied consent of the parties, they will be treated in all respects as if they had been raised in the pleadings."); Smith v. Smith, 273 So. 3d 1168, 1170-1171 (Fla. 1st DCA 2019) (noting that an issue may be tried by implied consent unless the opposing party objects). Accordingly, we reverse and remand for the trial court to reconsider the amount of the father's child support obligation and to determine a reasonable amount of the mother's attorney's fees and costs. Reversed and remanded with directions. KHOUZAM and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 6