FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-2771

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PATRICK SMITH,

Appellant,

v.

CAITLYN SMITH, n/k/a Caitlin

Cleveland,

Appellee.

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On appeal from the Circuit Court for Nassau County.

Robert M. Foster, Judge.

June 7, 2019

PER CURIAM.

Patrick Smith (the father) challenges an order requiring him 

to pay nearly $40,000 in retroactive child support to Caitlyn 

Cleveland (the mother). He also challenges the trial court’s related

attorney’s-fee order. We affirm. 

I.

The parties married, had two children, and later divorced. The 

consent final judgment of dissolution granted the mother majority 

timesharing and set the father’s child support at $1100 per month. 

This amount was a “substantial deviation” from the statutory 

guidelines, with the judgment explaining “[s]aid deviation is 

justified by the [father’s] payment for 100 percent of the 
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transportation costs for his visitation.” (The father lived in Florida; 

the final judgment authorized the mother to move out of state, 

where she had obtained employment.) 

In 2018, the mother filed a supplemental petition seeking a 

timesharing modification and a retroactive child-support 

adjustment. The petition alleged that the father failed to exercise 

most of his timesharing and therefore never utilized the 

transportation credit the final judgment anticipated. The father 

counter-petitioned, seeking majority timesharing.

While the petitions were pending, the mother filed a “Verified 

Motion to Suspend [Father’s] Summer Timesharing Pending 

Further Court Order and Request for Expedited Relief.” In the 

motion, the mother sought to modify the summer timesharing and 

to “establish a child support arrearage based on [the father’s] 

credit for transportation for visitation he did not exercise.” The 

court held an evidentiary hearing on the mother’s motion, during 

which the father acknowledged he had exercised only a fraction of 

his timesharing. Later in the hearing, the court said that some 

“financial adjustment” needed to be made based on the father’s 

lack of timesharing.

The court entered an order on the mother’s motion. The court 

found that, based on his lack of timesharing, the father had

underpaid his child support since the entry of the consent final 

judgment. The court used the father’s then-current financial 

affidavit to find that he had the ability to pay more child support. 

The court looked to the child-support guidelines to determine the 

amount the father would have paid had he not been given the 

credit for transportation costs. The court then entered a $39,612.30 

retroactive child-support award and ordered the father to pay that 

over time. The court also ordered the father to pay $3000 in 

attorney’s fees.

II.

The father now raises three issues. First, he argues that the 

court did not have authority to enter the retroactive child-support 

award because the court entered its order on the mother’s motion 

rather than her supplemental petition. Second, he argues that the 

court abused its discretion in entering the retroactive award. And 
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third, he argues that the court abused its discretion by awarding 

attorney’s fees. 

A.

As to his first issue, the father correctly notes that the Florida 

Family Law Rules of Procedure require that a request to modify a 

final judgment be initiated through a supplemental petition rather 

than a motion. See Fla. Fam. L. R. P. 12.110(h); see also Thomas v. 

Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) (“A court 

cannot modify a judgment unless the issue of modification is 

properly presented to it by appropriate pleadings and each party 

is given an opportunity to respond and a hearing had with the 

necessary proof adduced.”). But here, the retroactive adjustment 

was raised in the mother’s petition. The father was on notice that 

the issue was before the court, and to the extent he now argues 

that only the motion and not the petition was noticed for the 

hearing, he has not preserved that argument for appeal. Cf. Bryan 

v. Bryan, 765 So. 2d 829, 831 (Fla. 1st DCA 2000) (concluding that 

issue not raised in petition was nonetheless tried by consent); 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.”). 

B.

The father’s second argument fails too. The court did not 

abuse its discretion in establishing the retroactive award. Before a 

court can modify child support, it must first find a substantial 

change in the circumstances. See Van Looven v. Van Looven, 100 

So. 3d 148, 149 (Fla. 1st DCA 2012). In this case, section 61.30, 

Florida Statutes, supports the conclusion that there was a 

substantial change in circumstances:

A parent’s failure to regularly exercise the time-sharing 

schedule set forth in the parenting plan, a court-ordered 

time-sharing schedule, or a time-sharing arrangement 

exercised by agreement of the parties not caused by the 

other parent which resulted in the adjustment of the 

amount of child support pursuant to subparagraph (a)10 

or paragraph (b) shall be deemed a substantial change of 
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circumstances for purposes of modifying the child support 

award. 

§ 61.30(11)(c), Fla. Stat. This section governs here. The final 

judgment provided for a deviation from the guidelines pursuant to 

subparagraph (a)10., and the court held that the father failed to 

regularly exercise his child support. Thus, the court did not need

to make a further, explicit finding that there had been a 

substantial change in circumstances. 

Next, the court needed to determine a starting date for the 

retroactive child-support obligation. The father correctly notes

that modifications are generally retroactive to the date of the 

supplemental petition. See Miles v. Champlin, 805 So. 2d 1085, 

1087 (Fla. 1st DCA 2002). But section 61.30(11)(c) provides an 

exception to that general rule, allowing retroactivity “to the date 

the noncustodial parent first failed to regularly exercise the courtordered or agreed time-sharing schedule.” In this case, the court 

determined that the father never regularly exercised his 

timesharing. The parties’ testimony supported this determination. 

Finally, the court properly utilized the child-support 

guidelines to calculate how much the father would have paid 

without considering transportation costs. The court also found that 

the father had the ability to pay that amount based on his current 

financial affidavit. We find no abuse of discretion. 

C.

Last, we affirm as to the attorney’s fees because the asserted 

error was not raised through a rehearing motion. “[W]here an error 

by the court appears for the first time on the face of a final order, 

a party must alert the court of the error via a motion for rehearing 

or some other appropriate motion in order to preserve it for 

appeal.” Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 

2014). 

AFFIRMED.

ROBERTS, KELSEY, and WINSOR, JJ., concur.
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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John M. Merrett, Jacksonville, for Appellant.

Chanda L. Rogers of Faltemier Rogers, PLLC, Fernandina Beach,

for Appellee.