IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED J.N.S. , Appellant ,

v. Case No. 5D 15

- 2926
A.M.A. , Appellee

.

___________ _____________________/ Opinion filed June 24, 2016 Appeal from the Circuit Court for Brevard County , Tonya B. Rainwater , Judge. J.N.S., Palm Bay, pro se. No Appearance for Appellee. COHEN , J. J.N.S. ( “ Mother ” ) appeals the trial court’s final judgment establishing paternity and child support, and adopting a parenting plan

. B oth parties appeared pro se belo w and A.M.A. ( “ Father ” ) did not file a brief in this appeal. The trial court’ s final order directed roughly equal time

- sharing and joint deci sion

- making responsibility between the two parents and e stablish ed ch ild

- support obligations for each

. Mother raises m ore than a dozen points on appeal, including the trial court’s failure to consider Father’s history of domestic violence when evaluating the best interests of the children and various issues related to the amount of child support. We review a trial court’s order establishing a parenting plan for an abuse of discretion. Schwieterman v. Schwieterman , 114 So. 3d 984, 987 (Fla. 5th DCA 2012)

.2 Our review in this case is s ignificantly hampered by the lack of a tr ial tr anscript. See Applegate v. Barnett Bank of Tallahassee , 377 So. 2d 1150, 1152 (Fla. 1979) (explaining why the lack of a trial transcript is often fatal to an appeal). W e do , nonethe less, have the exhibits entered into evidence at trial , including the police report from a 2006 altercation between the parties , a lo n g with the findings of fact from the final judgment. 1 The 2006 incident occurred outside the Melbourne Mall and was describ ed by three indepen dent witnesses . The witnesses recounted seeing Father chase Mother around the m all parking lot with a machete. As Mother tried to leave in her car , Father used the machete to break a window , pulled her out , then forced her into his vehicle and drove off

. When a responding police officer stopped Father’s vehicle , Father denied t here was anyone else in the car; yet o nce ba ckup arrived, Mother was found lying down on the floor in the back of the truck cab with the seat fol ded up , covered in glass f rom the shattered window and visibly injured

. Father ultimately pleaded nolo contendere to di sorderly conduct and was sentenced to twelve months of probation and ordered to attend an anger management course. 2 Mother argues on appe al that the trial court’s order failed to state , as required by statute, that the court considered evidence of domestic violence. See § 61.13(3)(m), Fla. Stat. (2012) (requiring the court to acknowledge in writing that evidence of domestic

1 Though Mother claims in her brief that the tri a l court excluded police reports reflecting Father’s histo ry of domestic violence , the 2006 report , at least, was entered into evidence and incl uded in the record

. While the police report constituted hearsay, it was admitted into evidence, we assume either without objection or under a recognized exception

.
2 The final judgment also indicates that Father was arre sted for domestic violence in 2011. We have no information about the factual circumstances or ultimate result of that arrest. Additionally, Mother presented a list, not admitted into evide nce, of other offenses that included a 2012 arrest for an aggravated assault related to domestic violence

. W e do not know whether there was testimony to support that allegation.3 abuse was considered when determining the best interests of the children). Yet the final judgment, in quoting from the 2006 police report and acknowledging the other arrests and testimony , show s that the trial court at least consider ed these incidents but found that i t

wa s “ unable t o conclude that any domestic violence actually took place.” Because she has failed to identify a ny a dditional record evidence that was unacknowledged in the tri a l court’s final order, Mother has failed to show that the court fail ed to comply with its obligations under section 61.13(3)(m) to consider evidence of domestic violence.
Mother also argues that the trial court erred in determining the best interests of the children

. Despite our misgivings about some of the trial court’s findings

— especially its remarkable finding that no domestic violence occurred despite the police report of the 2006 incident

— we are compelled to affirm the time

- sharing arrangement ordered by the trial court because we have no transcript from which to dete rmine that the decision constituted an abuse of discretion

. 3 The trial court properly considered all of the statutory criteria relating to time

- sharing and made findings of fact related to each factor

. See § 61.13(3)(a )

- ( t), Fla. Stat. (listing factors to consider when determining the best interests of the children). Notably, the trial court found that both parents have been involved in the children’s education and are capable of providing for their developmental needs. While the evidence of domestic violen ce is disturbing, the main incident occurred ten years
ago — before the birth of the parties ’ child ren — and according to the final judgment, Father has been involved in the child ren ’s li ves , and the trial court believed he should continue
to play an active ro le in the ir future

. 4

3 See Applegate , 377 So. 2d at 1 152 (“ In appellate proceedings the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error .”).

4 Likewise, while the final judgment found that Father had been involuntarily committed to state custody under the Baker A ct “once or twice in the past,” Father’s last4 In addition, Mother has not always fulfilled her dut y to facilitate the relationship between Father and the children. Prior to the filing of the paternity action, the parties had worked out an in formal time

- sharing arrangement. D espite the agreement and subsequent court order, the trial court found that, “Mother has clearly discouraged the establishment and maintenance of a relationship between the children and Father.” The final judgment found Mother resisted allowing Father to p articipate in making decisions for the parties ’ children. Text messages entered into evidence also showed a reticence

on M other’s part to involve F ather in the raising of the children , a lthough Mother justifies her reticence by pointing to Father’s history of domestic violence and mental health issues

. Given these opposing findings and the inadequate record, w e cannot say that the trial court abused its discretion in determining that equal time

- sharing is in the best interest s of the children. See Bryant v. Bryant , 882 So. 2d 1066, 1066 (Fla. 5th DCA 2004) (“[I]n the absence of an adequate record on appeal, a judgment that is not fundamentally erroneous must be affirmed .”). We do find error , though, in the trial court’s application of the child

- support guide lines. 5 The trial court refused to deduct Mother’s mandatory retirement benefits from her gross income. Section 61.30(3), Florida Statutes (2012), list s the expenses that parent s may deduct from their gross income to determine their net income, including “mandatory retirement payments.” § 61.30(3)(d), Fla. Stat. According to the trial court, “Mother presented no evidence that [her retirement benefit] payments are, in fact,

commitment was a number of years before the birth of either child , and we do not believe it was an abuse of discretion to determine that Father was now capable of caring for the children

.
5 We review de novo a trial court’s application of the child

- support guidelines to undisputed facts. State , Dep’t of Revenue v. Price , 182 So. 3d 782, 782 (Fla. 1st DCA 2015)

.5 mandatory.” Yet i t is undisputed that Mother is a teacher employed by t he Brevard County school system ; therefore, these payments are mandatory by law. § 121.011(h), Fla. Stat. (2016) (requiring retirement payments for employees of the State of Florida as of 2011);

see Scott v. Williams , 107 So. 3d 379, 389

- 90 (Fla. 2013) (uphol ding , as constitutional, mandatory contributions by state employees to the retirement system ). 6 Additionally, the court failed to make sufficient findings related to Father’s income. The trial court’s order credits Father , as a truck driver at his family business, with a gross income of $1200 per month

— less than minimum wage, assuming full

- time work. The order does not make the required finding s on Father’s potential earning ability or address whether he is voluntarily underemployed. See Aguirre v. Aguirre , 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008)

. We reverse the trial court’s support award and remand for further proceedings to determine Mother’s net income. We also r emand for further findings as to Father’s probable and potential future earnings. 7
AFFIRM ED IN PART; REVERSED IN PART; and REMANDED. LAWSON, C.J., an d BERGER , J., concur.

6 Mother brought this issue to the trial court’s attention in her motion for rehearing and eve n alluded to the Florida Supreme Court ’s decision in Scott , albeit without a citation. Even if no evidence were presented on this point, the fact that Mother brought the statutory requirement to the trial court’s attention is sufficient to require reversal since the court is required to take judicial notice of public statutory law. § 90.201(1), Fla. Stat. (2016).

7 Mother’s remaining arguments either lack merit or cannot be substantiated without a transcript.