FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D18-915

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JENNIFER TISDALE, Former Wife,

Appellant,

v.

STEPHEN TISDALE, Former 

Husband,

Appellee.

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On appeal from the Circuit Court for Escambia County.

Darlene F. Dickey, Judge.

February 15, 2019

JAY, J.

Jennifer Tisdale, the former wife, seeks reversal of portions of

the trial court’s “Order on Former Husband’s Amended Verified 

Petition for Modification of Child Support and the Former Wife’s 

Counter-Petition for Modification of Child Support.”∗ For the 

 ∗ “[O]rders entered in modification proceedings have all of the 

aspects of final judgments” and, therefore, are “appealable as 

plenary appeals.” Roshkind v. Roshkind, 717 So. 2d 544, 544-45

(Fla. 4th DCA 1997); accord Bucsit v. Bucsit, 229 So. 3d 430, 431 

n.1 (Fla. 1st DCA 2017).
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reasons that follow, we reverse on Points I and III, but affirm Point 

II without further discussion.

I

On September 1, 2015, the parties entered into a marital 

settlement agreement (“MSA”). Under the terms of the MSA, it 

was agreed that Stephen Tisdale, former husband, was to pay 

$6500 per month in child support to the former wife, as calculated 

under the Child Support Guidelines. The guidelines worksheet 

was attached to the MSA. It attributed to the former husband a 

monthly gross income of $68,000, equating to an annual salary of

$816,000, not including additional annual income the former 

husband received from his other business interests. The worksheet

attributed zero income to the former wife. Due to the former wife’s 

lack of income, the $1200 in monthly private school tuition the 

former wife would have been obligated to pay under the MSA was

also included in the worksheet and applied to the former husband’s

support obligation on a dollar per dollar basis. Later, at the former 

wife’s entreaty, the former husband agreed to execute an

addendum to the MSA whereby the children would attend public 

school and the former husband’s child support obligation would 

commensurately be reduced by $1200, to $5300 per month. The 

addendum was executed on July 1, 2016.

For reasons not made known in the record, the Final 

Judgment of Dissolution of Marriage was not entered until August 

26, 2016, nearly a year after the MSA. Nonetheless, it incorporated 

both the MSA and the addendum.

Three months later, on November 29, 2016, the former 

husband filed his Verified Petition for Modification of Child 

Support. In it, he asserted that his income had precipitously 

plunged since his child support obligation had been agreed upon 

by the parties in September 2015. He later filed an amended 

petition in May 2017. In turn, the former wife filed her CounterPetition for Modification of Child Support in July, in which she 

alleged that the former husband’s income had, in fact, 

dramatically increased in the eight months since he first filed his 

petition for modification.
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It was revealed at the ensuing hearing that at the time the 

parties executed the MSA in September 2015, the former 

husband’s gross annual income—made up of commission 

payments from his employment and profits from his other 

businesses—topped one million dollars; $1,009,556.79 to be exact. 

But 2016 proved to be a bad year for the construction industry. 

Because the former husband’s employment—from which he 

received his commissions—was directly related to the construction 

trade, his 2016 commission income was likewise impacted, 

dwindling to $464,448.78. His total annual income for 2016, which

included the profits from his other businesses, amounted to only 

$677,266. 

Both parties acknowledged that because the former husband’s 

“salary” from his regular employment was entirely commissionbased, it would ebb and flow from month to month, and from year 

to year. Thus, by May 2017, the former husband’s income showed 

a marked recovery, with projected year-end earnings just short of 

a million dollars. Yet, for purposes of establishing his claim for a 

retroactive reduction in child support, the former husband 

calculated his monthly income from the date he filed his petition 

in November 2016 until May 2017, using both his commissions and 

his other sources of income to arrive at the “reduced” monthly 

income of $29,377.02 during the applicable time frame.

Worthy of note is the former wife’s testimony that, on 

September 1, 2016, when the former husband presented her with 

the first installment of the lump sum payment upon which they 

had agreed in the MSA, he advised her to “be thrifty” because he 

planned to take her back to court “to lower his child support.” For 

his part, the former husband acknowledged he had told the former 

wife his commission checks would not keep coming in and she 

would be wise to curtail her spending. Specifically, he stressed, “I 

can’t continue to pay at a million dollar mark when you’re not 

making the million dollars.”

The former wife testified she had recently graduated from dog 

grooming school and was hoping to open her own business. She 

explained that she chose that vocation because it would enable her 

to create her own schedule in order to accommodate the needs of 

one of the parties’ minor sons who was being treated for severe 
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anxiety and ADHD. The former wife agreed with former husband’s 

counsel that it would be “a fair thing to say that [she] could earn 

$10 an hour doing that type of work.” At that amount, the former 

wife also agreed she could earn a minimum of $1300 per month, 

working six hours a day, five days a week, in order to be with her 

special-needs child when the school day ended.

Following the hearing, in its final order on the parties’

respective petitions, the trial court referenced the former 

husband’s testimony that his income had decreased since the entry 

of the MSA and the August 26, 2016 Final Judgment of Dissolution 

of Marriage. But it went on to reference his additional testimony 

that he “knew the decreases were coming . . . and told the Former 

Wife that she needed to be careful with her spending due to his 

decreasing income, and he warned her that he may need to ask for 

modification.” The court found that “[t]he Former Husband said 

this was not meant as a threat, and he told her this as a courtesy.” 

The court acknowledged the former wife’s testimony that the 

former husband had told her on September 1—a week after the 

August 2016 final judgment—that he was taking her back to court, 

and encapsulated the former wife’s testimony that she had never 

been privy to the parties’ accounts during the marriage—as the 

former husband had controlled the finances and the bills—and was 

unaware that the former husband was making a million dollars a 

year.

The trial court next discussed the structure of the former 

husband’s salary as being 100% commission-based and that his 

earnings were expected to fluctuate. It then found:

The Former Husband’s explanation for telling the Former 

Wife on September 1, 2016 that he planned to take her 

back to Court for modification was that he was seeing and 

experiencing a decrease in his income immediately (5 

days) after the final judgment was entered. However, his 

testimony was that his income started decreasing in 2015

and continued throughout 2016.

The Former Husband was aware the company’s 

business transactions were declining over a period of time 

after the MSA was signed and before the Final Judgment 

was entered. Accepting the Former Husband’s testimony 
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regarding his decline in income as well as the Former 

Wife’s testimony that their conversation occurred on 

September 1, 2016 supports the Court’s conclusion that 

the Husband knew about his decreasing income before the 

Final Judgment on August 26, 2016.

(Emphasis added.) 

Significantly, the trial court stated it had considered “the line 

of cases” argued at the hearing by the former husband’s attorney, 

which stood for the proposition—as noted by the court—that “a one 

year period of time of decreased income” meets the requirement of 

a permanent change. But in the next breath, the trial court found 

that “[t]he Former Husband did not experience a full year of 

substantially lowered income.” However, later in its order, after 

acknowledging that the former husband’s income “is back to the 

level it was prior to the Final Judgment,” the trial court declared:

The Former Husband argues that the substantial change 

in income between the Final Judgment and June 2017 

warrants a retroactive decrease in child support for the 

six months from filing the petition for modification 

through June 2017, notwithstanding the lack of a 

permanent change in income. The Court finds this is 

appropriate and will grant the decrease in child support 

from November 29, 2016 to May 31, 2017. The Husband 

shall receive credit for the overpayment made during this 

six month period.

(Emphasis added.)

Accordingly, the trial court granted the former husband’s 

Amended Verified Petition for Modification of Child Support to the 

extent that his child support obligation “between November 29, 

2016 and May 31, 2017 is decreased from the $5,300 in the Final 

Judgment to $3,372 (Exhibit 1) leaving him with an over-payment 

of $11,568.00 for this period.” In line with the former husband’s 

suggestion during the hearing, the trial court ordered that he “pay 

a reasonable amount of the Former Wife’s attorney’s fees and 

costs,” which amount would be credited by the over-payment of 

child support in the amount of $11,568.00.
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Addressing the former wife’s counter-petition, the trial court

concluded that she had the ability to work full-time. It therefore

imputed minimum wage earnings as income to her for the purpose 

of recalculating the former husband’s child support obligation. It 

then granted her petition by prospectively increasing child support

based on the guidelines worksheet, which reflected the increase in

the former husband’s current earnings and the imputation of 

income to the former wife, amounting to $1440. The court found 

those factors altered the former husband’s child support obligation

by increasing it to $5,347 per month for both children, and $3,512 

when the oldest child was no longer eligible for child support. For 

purposes of calculating the current child support on the guidelines 

worksheet, the trial court considered the former husband’s reduced 

health and dental care premiums for the children, which totaled

$346. However, the guidelines worksheet attached to the final

order actually utilized the higher health and dental premium costs

of $440, an amount both parties agreed the former husband was 

no longer obligated to pay.

II

On appeal, the former wife’s principal argument is that the 

trial court erred by granting the former husband’s petition and 

retroactively modifying his child support obligation from the date 

he filed his petition in November 2016 until June 2017. She asserts 

that the “change in circumstances” regarding the former husband’s 

salary was neither unanticipated nor permanent. 

In Wood v. Wood, 162 So. 3d 133 (Fla. 1st DCA 2014), we 

reiterated the standard applicable to a petition for modification of 

child support:

“A party moving for modification of child support has the 

burden of proving the following factors: (1) 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, 

involuntary, and permanent in nature. Maher v. Maher, 

96 So. 3d 1022, 1022 (Fla. 4th DCA 2012). ‘When the 

original child support amount is based on an agreement 

by the parties, as here, there is a heavier burden on the 

party seeking a downward modification.’ Id.”
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Id. at 135 (quoting Kozell v. Kozell, 142 So. 3d 891, 894 (Fla. 4th 

DCA 2014)); see generally Pimm v. Pimm, 601 So. 2d 534, 536 (Fla. 

1992)). We review a trial court’s decision to modify child support

for an abuse of discretion. Id. Under the singular circumstances of 

the instant case, we find the trial court abused its discretion. 

Initially, we disagree with the former husband’s view that the 

facts of the present case established the change in his income was 

permanent. While the cases on which he primarily relies—Dogoda 

v. Dogoda, 233 So. 3d 484 (Fla. 2d DCA 2017), and Freeman v. 

Freeman, 615 So. 2d 225 (Fla. 5th DCA 1993)—could, when read 

together, support the idea that “permanent” may in some factual 

contexts be interpreted to mean one year or more, if one begins 

counting from the date the parties executed the MSA, we find that 

this case does not fit within that factual framework.

The former wife rightly points out that certain of the trial 

court’s findings wholly contradict the former husband’s argument, 

as well as its conclusion that the former husband proved his case 

for retroactive modification. First, in its final order, the trial court 

expressly found that although it had considered the case law we 

have just cited, the former husband “did not experience a full year 

of substantially lowered income.” Second, the trial court chose the 

date of the final dissolution judgment—instead of the date the 

parties executed the MSA—in determining the length of the 

changed circumstances, thereby implicitly rejecting the former 

husband’s position advanced below. Furthermore, the trial court 

found that the former husband’s testimony revealed that his 

income started decreasing in 2015 and continued throughout 2016, 

and that he “knew about his decreasing income before the Final 

Judgment on August 26, 2016.” 

We conclude that those findings are irreconcilable with the 

standards for supporting a downward modification of child support 

through proof of an unanticipated, and permanent change in 

circumstances. Thus, we hold the trial court abused its discretion 

in granting the former husband’s petition for a retroactive 

modification.

As the former wife also argues, the trial court additionally

erred in utilizing the incorrect sum of combined health and dental 

premiums the former husband was then currently paying in 
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calculating his child support obligation in line with the former 

wife’s counter-petition for modification. During the former 

husband’s testimony, he agreed that his combined health and 

dental insurance premiums for coverage of the minor children 

decreased from $440 per month to $307.75 per month. 

Nevertheless, the trial court used the higher monthly amount of 

$440 on the guidelines worksheet in computing the new child 

support obligation. The former husband essentially concedes this 

error in his Answer Brief, but seeks to justify the difference under 

section 61.30, Florida Statutes. We hold, however, that the five 

percent variance permitted by section 61.30 is inapplicable in this 

instance, since there was nothing in the record that even hints at 

any intent on the trial court’s part to utilize the greater amount so 

as “to order payment of child support in an amount which varies 

more than 5 percent from such guideline amount . . . .” § 

61.30(1)(a), Fla. Stat. Accordingly, on remand, the trial court is 

instructed to recalculate child support using the lower premium 

amount as reflected in the parties’ testimony.

III

To summarize, we reverse the final order to the extent it 

grants a retroactive modification of the former husband’s child 

support obligation and utilizes the incorrect sum of insurance 

premiums in calculating child support under the guidelines. In all 

other respects, the final order is affirmed.

AFFIRMED, in part, REVERSED, in part, and REMANDED for 

further proceedings consistent with this opinion. 

RAY and KELSEY, 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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Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.

Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for 

Appellee.