Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT M.D., f/k/a M.M., Appellant, v. T.T., Appellee. No. 2D22-2335 July 21, 2023 Appeal from the Circuit Court for Manatee County; Teri Kaklis Dees, Judge. Shanna Hourhian of Shanna Hourhian Law, PLLC, Bradenton, for Appellant. Ama N. Appiah of Law Office of Ama N. Appiah, P.A., St. Petersburg, for Appellee. VILLANTI, Judge. M.D. (the Mother) challenges the trial court's June 21, 2022, order denying her motion to vacate its May 5, 2022, order denying the Mother's motion to retroactively reinstate child support. For the reasons discussed herein, we reverse. The Mother alleges that T.T. (the Father) persuaded her to sign a stipulated settlement in which she agreed to waive child support by providing false information about his employment and income. Because of this, the Mother moved to retroactively reinstate child support and also requested an income deduction order. Following an evidentiary hearing, a magistrate recommended denying the Mother's motion. The trial court adopted the magistrate's report and recommendations and denied the Mother's motion to reinstate child support and for an income deduction order. I. The parties, who were never married, share a minor child who was born in 2014. In May 2018, the Father filed a paternity lawsuit in the Manatee County circuit court. In August 2018, the parties entered into a mediated settlement agreement (the Agreement), which provided the Father with a graduated timesharing with the child over a five-month period. By the end of the graduated period, the parties were to have equal timesharing with the child, with the child spending one week at a time at each parent's house. The Agreement provided that at the end of the graduated period, the Father would pay $379.19 monthly in child support. Specifically, the Father was to pay $910 per month beginning on August 10, 2018, and that amount would be reduced to $379.17 monthly beginning on December 10, 2018, to account for the Father's increased timesharing. Also per the Agreement, the Father would pay the child support payments directly to the Mother, and the Mother would be entitled to an income deduction order if the payment was more than ten days late. In July 2019, the Father filed a Supplemental Petition to Modify Parental Responsibility, Visitation, or Parenting Plan/Timesharing Schedule and Other Relief. Therein, the Father requested sole parental responsibility, majority timesharing, a downward modification of his child support obligation, and equal payment of the child's medical 2 expenses and extracurricular activities. The Father unilaterally ceased paying child support in September 2019. In November 2019, the Mother sought discovery of the Father's financial information, but the Father never completed the discovery requests. Instead, the parties entered into a Stipulation to Modify Mediated Paternity Settlement and Parenting Plan (the Stipulation), in which the parties agreed to waive child support payments based upon the Father's purported change in financial conditions due to a change in his employment. The Stipulation was ratified and the order entered on April 1, 2020. In August 2021, the Mother filed her motion to reinstate child support and for retroactive child support. She alleged that she had entered into the Stipulation because she felt pressured and coerced by the Father. The matter was referred to the same magistrate, and a hearing was held in December 2021. In his report, the magistrate stated that while the Mother reported feeling manipulated and pressured into executing the Stipulation, he was "hesitant to accept the accuracy" of her explanation because she filed her motion after the Father refused to allow her to relocate outside of the state. The magistrate noted that while Florida law prohibits a parent from waiving child support on the child's behalf, the portion of the Stipulation pertaining to the waiver could be deemed void without invalidating the entire agreement. Additionally, although the Mother alleged the Father's contributions of nearly $36,000 to his retirement account in a single year supported her claim that he had under-reported his income as a self-employed handyman, the magistrate disagreed. Despite noting that the source of the funds deposited in the retirement account during 2022 was "unclear," the magistrate suggested that there might be a "perfectly reasonable explanation" for this. For example, the magistrate 3 speculated, based on the gross income minus expenses that the Father had reported in his financial affidavit for 2021, he theoretically could have had a surplus at the end of 2021 exceeding the amount he contributed to his retirement account in 2022. However, the Father provided no evidence to support the magistrate's hypothetical example. The magistrate also found that the Mother was voluntarily unemployed because, although she claimed she was unable to find a job in her chosen field of cosmetology, she was still capable of finding employment that would allow her to earn income comparable to the time period when she worked as a restaurant server. The magistrate recommended that the Mother's request to reinstate child support be denied as moot, as the "[t]he parties' prior attempt to abate the [child support] by stipulation was invalid, and void. Accordingly, [the Father's] child support obligation was never abated, and there is no need to reinstate that obligation because [it] remains in full force and effect." The magistrate found the Father's monthly support obligation to be $379.17, as it was previously ordered, and his arrearage for the period of October 1, 2019, through December 31, 2021, to be $9,691.23. The Father was to pay an additional $75.73 per month until the arrearage amount is satisfied. The trial court approved and adopted the magistrate's report and recommendations on January 5, 2022. In April 2022, the Mother filed a motion for contempt and enforcement and/or for an income deduction order. She alleged that the Father was obligated to pay $455 total per month (the $379 monthly support and the $75.73 arrearage amount) but that he instead made two payments (January 1 and February 1) of $431.99 each and one (March 1) payment of $256.02. The Mother's counsel sent correspondence to the Father on March 1 requesting the remaining $245.00. The Mother 4 alleged that the Father instructed her to pick up the check from his doorstep and sent her a text message that read: "Low life your I can't afford to pay for my kid check [sic] is under my mat." The Mother further alleged that she had requested that the Father stipulate to the entry of an income deduction order but that the Father had refused. In her motion, the Mother requested that the trial court enter an income deduction order for future support payments to ensure timely payments and to prevent the Father from "harass[ing], disparag[ing], and demean[ing]" her. The Mother cited a provision in the Agreement entitling her to an income deduction order if the child support payment was more than ten days late. The Mother also requested attorney's fees pursuant to a prevailing party provision in the Agreement. The same magistrate held a hearing on the motion for contempt on May 4, 2022. The Father testified that he thought he was paying the correct amounts when he made the January and February payments of $431.99 but that he had deducted an amount he believed was the Mother's responsibility for the child's tutoring from the March payment. He testified that he has the ability to make the child support payments electronically but that he and the Mother had not actually discussed doing so. The Mother testified that she had the ability to receive the payments electronically but preferred the income deduction order because the Father could still avoid making payments if she agreed to electronic payment. The magistrate found that (1) the Father's testimony that he believed the two payments of $431.99 were the correct amount due was credible and the Father did not accurately read the prior order with the correct monthly support amount; (2) the Father, upon receiving the request from the Mother's counsel to pay the missing support amounts 5 for January through March, made those payments by March 7, 2022, thereby falling within the ten-day deadline of the parties' Agreement pertaining to entitlement to the income deduction order; (3) therefore, the Mother was not entitled to an income deduction order pursuant to the Agreement; (4) the court was not "obligated" to enter an income deduction order pursuant to section 61.1301(a)(1), Florida Statutes (2022), because its order was not one "establishing, enforcing, or modifying" child support; (5) the magistrate was not convinced an income deduction order would resolve the acrimony between the parties and the Mother should just accept the Father's "offer" to pay the monthly support via electronic transfer; (6) despite an earlier court order that the Father should pay the support on the first of each month, the parties had not established a due date, and because the Father testified that he typically paid within the first ten days of each month and as long as the payment was made "monthly," the Father was complying with the Agreement and trial court's order; and (7) the Father was the "prevailing party" with regard to entitlement to attorney's fees in the Agreement. The trial court approved and ratified the magistrate's report in its May 5, 2022, order. In her subsequent motion to vacate the trial court's May 5, 2022, order, the Mother alleged that the Father denied several requests to stipulate to the income deduction order and that he never offered to pay child support via Zelle until he testified at the May 4, 2022, hearing. She also noted that the magistrate's report was silent as to the alleged $250 deficiency for the March 2022 payment. The trial court denied the Mother's motion on June 21, 2022. The order denying the motion provided no explanation but stated that the trial court reviewed a transcript of the May 4, 2022, hearing. 6 II. The Mother contends that the magistrate erred in concluding that the Father was not delinquent in his support payments, which would entitle her to an income deduction order under section 61.1301(1)(a), and also in concluding that the trial court did not have authority to enter the income deduction order because its prior order did not "establish, enforce, or modify" the Father's child support obligation. This matter involves the interpretation of a statute, which is subject to de novo review. See Lab. Corp. of Am. v. Davis, 339 So. 3d 318, 323 (Fla. 2022). Additionally, "[a] trial court's decision to accept or reject a magistrate's conclusions is also reviewed for an 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)). Section 61.1301(1)(a) provides that a trial court shall enter an income deduction order "[u]pon the entry of an order establishing, enforcing, or modifying an obligation for alimony, for child support, or for alimony and child support." Section 61.1301(1)(c) further provides: "The income deduction order is effective immediately unless the court upon good cause shown finds that the income deduction order shall be effective upon a delinquency in an amount specified by the court but not to exceed 1 month's payment. . . ." "While the 'statute is mandatory,' the parties [are] free to contract otherwise." Johnson v. Johnson, 47 Fla. L. Weekly D2243 (Fla. 5th DCA Nov. 4, 2022) (quoting Seith v. Seith, 337 So. 3d 21, 26 (Fla. 4th DCA 2022)). If the parties agree and if the trial court determines it is in the best interests of the child, child support payments may be made directly between the parties. See § 61.13(1)(d)2, Fla. Stat (2022). 7 [T]o find good cause for a delayed order, the trial court must, at a minimum, make certain enumerated written findings explaining why 1) an immediate income deduction order would not be in the child's best interest, 2) that there is proof of timely payment, and 3) that the obligor has agreed to advise the agency and court depository of payor and health insurance changes or there is a signed agreement providing an alternative arrangement between the obligor and the obligee. Hinton v. Smith, 725 So. 2d 1154, 1159 (Fla. 2d DCA 1998). Here, the parties' Agreement provided that the Father would pay the support directly to the Mother and that if the Father is more than ten days late in making the payment, the Mother shall be entitled to an income deduction order. When the Mother sought reinstatement of the child support payments the Father undisputedly did not make for two years, the magistrate found that the provision in the 2020 stipulation in which the parties' waived child support from each other was invalid. The magistrate further declined to modify the amount of the Father's child support obligation, as the Mother had requested, based upon the finding that there was not a significant change in circumstances. Subsequently, in the May 4, 2022, report, the magistrate concluded that because it did not "establish, enforce, or modify" the Father's support obligation as contemplated in section 61.1301(1), the trial court was not obligated to enter the income deduction order. The magistrate also found that because the Mother did not inform the Father in January and February 2022 that his payments were less than the ordered amount, and because the Father immediately rectified the arrearage in March 2022 after the Mother's counsel requested the missing amounts, there was no delinquency that would trigger the Mother's entitlement to the income deduction order. This was error: if the child support 8 abatement never took effect and the Father's child support obligation remained in full effect in 2019 and 2020, as the magistrate previously found, then the Father was delinquent for more than two years. The fact that the Father was found to be nearly $10,000 in arrears further substantiates proof of the Father's delinquency. The entitlement to an income deduction order under the Agreement was triggered at that time. Furthermore, the magistrate's declaration that there might be a "perfectly reasonable explanation" for the Father's $36,000 contribution to his retirement account in a single year is not supported by the evidence. Hypothetical or speculative explanations do not satisfy the competent substantial evidence standard. See Sunderwirth v. Sunderwirth, 332 So. 3d 1087, 1090 (Fla. 2d DCA 2022) ("The competent substantial evidence standard 'is not satisfied by evidence which merely creates a suspicion or which gives equal support to inconsistent inferences.' 'Surmise, conjecture or speculation have been held not to be substantial evidence.' " (quoting Callwood v. Callwood, 221 So. 3d 1198, 1202 (Fla. 4th DCA 2017))). It is clear from the record that the magistrate provided to the Father a benefit of the doubt, as it were, that was not equally extended to the Mother.1 What is less clear is the magistrate's conclusion that his findings and report did not qualify as an "enforcement" of the Father's 1 For example, the magistrate found that the Mother had refused to accept the Father's offer to make payments by direct electronic transfer. But the Mother testified that this was never discussed, and although she stated she would accept the court's decision if it should order direct electronic transfers, she preferred an income deduction order because it would prevent the Father from manipulating the payment amount from month to month. 9 obligation to pay child support.2 In finding that the support obligation was never abated, however, the magistrate left no other possible conclusion than that the Father was delinquent in his payments because he undisputedly made none in two years. Furthermore, the delinquency exceeds the time specified (one month at most) in section 61.1301(1)(c). Thus, the Mother was entitled to an income deduction order under the Agreement and section 61.1301. The finding that the Father was not delinquent in his 2022 child support payments because there was not a specific "due date" is also unsupported by the record. Notwithstanding the fact that the December 2021 order specified that the Father was to make payments on the first of each month, the Father's own payment history indicates that he believed the first of each month to be the "due date," as his payments in 2022 were all on the first of each month. The magistrate did not elaborate whether the Mother is expected to wait for an entire month to pass before deeming a payment "late," but that would seem contrary to the purpose of child support, which arises from a parent's legal duty to provide for the daily needs of minor children. See § 61.13(1)(a); see also Carroll v. Carroll, 593 So. 2d 1131, 1133 (Fla. 2d DCA 1992) ("Both natural parents share a duty to support a minor child . . . ."); Evans v. Evans, 595 So. 2d 988, 990 (Fla. 1st DCA 1992) ("It is the very strong 2 The magistrate's report provides specific instructions and orders for the Father to pay monthly child support as well as the arrearages that accumulated over two years. Although the report itself may not qualify as a support order, the trial court's order approving the magistrate's report does. See § 61.046(21) (defining "support order" as "a judgment, decree, or order . . . issued by a court of competent jurisdiction . . . for the support and maintenance of a child which provides for monetary support, health care, arrearages, or past support"). 10 public policy of this state to require a parent to provide support for his or her children."). Finally, the finding that an income deduction order is unnecessary because the Father is self-employed and handles his own payroll is irrelevant to the determination of entitlement. These considerations are not mentioned in section 61.1301 as being grounds for determination of one's entitlement. The statute is clear that the default is that an income deduction order be entered upon the entry of an order establishing or modifying child support, unless the parties agree otherwise and good cause is shown via the trial court's findings. III. Based on the above, we reverse the trial court's June 21, 2022, order denying the Mother's motion to vacate its May 5, 2022, order and remand for vacation of same and for entry of an income deduction order for the Father's child support obligation. We also reverse the order awarding attorney's fees to the Father. Reversed and remanded with instructions. SLEET, C.J., and SILBERMAN, J., Concur. Opinion subject to revision prior to official publication. 11