DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

PEDRO SUAREZ,

Appellant,

v.

CANDICE MURPHY SUAREZ,

Appellee.

No. 4D18-1148

[November 13, 2019]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Dale C. Cohen, Judge; L.T. Case No. FMCE12-002163.

Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, 

for appellant.

Owei Z. Belleh of The Belleh Law Group, P.L.L.C., Fort Lauderdale, for 

appellee.

MAY, J.

The former husband appeals an order terminating alimony, recalculating child support, and modifying time-sharing. He argues the trial 

court erred in: (1) terminating alimony because the evidence did not 

support that decision and the court did not make the statutorily-required 

findings; (2) applying the gross-up method to calculate child support; and

(3) modifying time-sharing. We agree in part and reverse in part. We 

remand the case to the trial court for further proceedings consistent with 

this opinion.

The former husband and wife entered into a marital settlement 

agreement (“MSA”). The MSA divided the former couple’s major assets and 

created a schedule for the former wife’s alimony payments to the former 

husband. The MSA provided for each parent to spend equal amounts of 

time with the children; the former wife agreed to pay nearly all childcare 

expenses. 

After the former husband refused to follow a provision regarding the 

division of assets, the former wife moved to have him held in contempt. 
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The former husband responded by moving to have the former wife held in 

contempt for failing to pay alimony, child support, and follow the MSA

regarding assets. The former wife then moved to modify alimony, child 

support, and the timesharing agreement. 

In support of the modification, the former wife testified that a decline 

in her title business resulted in decreased income, causing her to downsize 

from seven employees to one. The title company relied on short sales. The 

former wife claimed rising property values caused a decrease in the 

number of short sales and a 75% reduction in earnings from each sale. 

She testified that her major client, responsible for about 85% of the title 

company’s business, opened its own title division and stopped using her 

company’s services. She claimed her efforts to maintain the business were 

also hindered by marketing regulations implemented shortly before the 

MSA, and trade regulations implemented shortly after. Her marketing 

efforts were limited to hosting luncheons and teaching a class. 

The impact of the title business’ decline and the collapse of another 

business was substantiated by the former wife’s tax returns and income 

estimates. She testified her title business’ annual income declined almost 

60%. This caused a significant decline in her annual income. The former 

wife admitted this decline did not include personal expenses she ran 

through her title business.

Although the MSA provided for equal timesharing, that never occurred. 

The former wife testified the former husband’s work schedule caused the 

children to spend almost 90% of their time with her. The former husband 

further disrupted the time-sharing arrangement when he had an

altercation with his son, resulting in the former wife filing an ex parte 

motion for full custody of the children. 

 

The couple later amended the timesharing agreement to allow the 

daughter to spend time with her father. Even that time became limited 

due to the father’s work schedule and the daughter’s activities.

 

The MSA assigned the former wife full financial responsibility for the 

children’s expenses, except for medical, camp, and extracurricular 

expenses the couple would split. She collected and sent the former 

husband receipts for extracurricular activities and made him aware of 

medical costs, but he failed to pay his share of those costs. The former 

wife admitted she did not get the former husband’s permission before 

committing to extracurricular activities, but claimed that he failed to 

review the suggested activities and did not object to them. 

 
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The trial court found the 75% decline in the former wife’s business 

resulted from the loss of her biggest client, the decline in market value of 

short sales, and the change in business regulations. These factors created

a substantial, material, permanent, and involuntary change in 

circumstances meriting termination of the former wife’s alimony 

obligation. 

The trial court modified timesharing to reflect the couple’s actual 

practice, which consisted of the daughter spending 30% of her time with 

the former husband. It ordered reunification therapy between the former 

husband and the son. It imposed a child-support obligation on the former

husband to make up for changes in the former wife’s income and the 

modified timesharing. The trial court denied the former husband’s 

motions to hold the former wife in contempt.

The former husband now appeals.

The Alimony Issue

We have a mixed standard of review of the order modifying alimony. 

Bauchman v. Bauchman, 253 So. 3d 1143, 1146 (Fla. 4th DCA 2018). “The 

trial court’s legal conclusions are reviewed de novo.” Id. “The trial court’s 

factual findings are reviewed for abuse of discretion and should be affirmed 

if supported by competent, substantial evidence.” Id.

The former husband argues the trial court erred in terminating the 

former wife’s alimony obligation because: (1) the court’s finding of a 

substantial, material, unanticipated, involuntary, and permanent change 

in circumstances is not supported by competent, substantial evidence; (2) 

the court failed to make the findings required by section 61.08(2), Florida 

Statutes (2018); and (3) the court failed to rule on the former wife’s unpaid 

alimony obligation.

The former wife responds the trial court correctly adhered to the 

statutory requirements of section 61.14, Florida Statutes (2018), and 

competent and substantial evidence supported the court’s finding that the 

former wife’s change in circumstances were substantial and material, 

unanticipated, and involuntary. 

‘“In considering [alimony] modification, the court can and should take 

into consideration all factors and contrast the total circumstances at the 

time of the original order with all the current circumstances.”’ Wilson v. 

Wilson, 37 So. 3d 877, 880 (Fla. 2d DCA 2010) (citation omitted). To 

modify alimony, the movant must show:
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1) a substantial change of circumstances;

2) that the change was not contemplated at the time of the 

final judgment; and 

3) that the change is sufficient, material, involuntary, and 

permanent in nature.

Mendes v. Mendes, 947 So. 2d 450, 452 (Fla. 4th DCA 2006). 

“[M]odification may not be based upon factors affecting income known to 

the parties at the time a final judgment is entered.” Id. 

In Mendes, the trial court denied the husband’s motion for modification 

because his change in income was anticipated due to the mercurial nature 

of the real estate market. Id. We affirmed the order denying modification,

but noted the court’s reliance on the husband’s knowledge of possible 

fluctuations in his industry affecting his income was “misplaced.” Id. 

Although the court knew the husband’s income could fluctuate, “the 

character of the actual change and consequences to income” were not 

known beforehand. Id. 

Here, the trial court correctly found the former wife had a substantial 

change in income to warrant modification. Like Mendes, the former wife 

worked in the real estate industry. However, it was not a mere fluctuation 

in the industry, but an unanticipated substantial decline in income due to 

the loss of a major client, changed regulations, and the fluctuation in the 

market. Those changes were involuntary and permanent. See Wilson, 37 

So. 3d at 882. And despite best efforts, the former wife was unable to 

return to the income she previously enjoyed. We see no error in the court’s 

findings, which were supported by competent, substantial evidence.

Despite the evidence supporting the trial court’s decision to terminate 

the former wife’s alimony obligation, the trial court was required to make 

statutorily required findings, pursuant to section 61.08(2), Florida 

Statutes. Once a party moving for alimony modification provides 

substantial, permanent, and unanticipated change in circumstances, “a 

trial court must consider and make specific factual findings for each of 

[the] factors [within section 61.08(2)] . . . .” Addie v. Coale, 179 So. 3d 

534, 536 (Fla. 4th DCA 2015).

Section 61.08(2) enumerates the factors to be considered:

(a) The standard of living established during the marriage.
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(b) The duration of the marriage.

(c) The age and the physical and emotional condition of each 

party.

(d) The financial resources of each party, including the 

nonmarital and the marital assets and liabilities 

distributed to each.

(e) The earning capacities, educational levels, vocational 

skills, and employability of the parties and, when 

applicable, the time necessary for either party to acquire 

sufficient education or training to enable such party to find 

appropriate employment.

(f) The contribution of each party to the marriage, including, 

but not limited to, services rendered in homemaking, child 

care, education, and career building of the other party.

(g) The responsibilities each party will have with regard to any 

minor children they have in common.

(h) The tax treatment and consequences to both parties of any 

alimony award, including the designation of all or a portion 

of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including 

income available to either party through investments of 

any asset held by that party.

(j) Any other factor necessary to do equity and justice between 

the parties.

§ 61.08(2)(a)-(j), Fla. Stat. (2018). 

“The failure to provide these required findings may . . . constitute 

reversible error.” Geoghegan v. Geoghegan, 969 So. 2d 482, 485 (Fla. 5th 

DCA 2007). However, courts will not reverse where the record contains 

competent, substantial evidence to support the need and ability to pay 

alimony. McCann v. Crumblish-McCann, 21 So. 3d 170, 171 (Fla. 2d DCA 

2009).

The trial court orally found:
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The circumstances which has caused [the former wife’s 

company] to drastically lose income are, in fact, permanent. .

. . . And these changes are involuntary as the former wife has 

no control over the fees that the business collects. 

The record is barren of any other consideration of the factors enumerated 

in section 61.08(2). The court only addressed whether the former wife’s 

change in circumstances were substantial, unanticipated, and material. 

The trial court further failed to address: (1) whether the former wife had 

an ability to pay; and (2) whether the former husband had any need for 

any amount of alimony payments. Henry v. Henry, 191 So. 3d 995, 998 

(Fla. 4th DCA 2016) (“Awards of retroactive alimony must be based on 

need and ability to pay.”). These lack of findings require us to reverse.

In addition, the trial court consolidated the issues of alimony and 

contempt, declaring “contempt is still on the table with respect to 

nonpayment of alimony.” The trial court then declared, “we need to redo 

the math to see how much former [h]usband is owed for the month that 

he didn’t receive the alimony.” But, when the court issued its order

terminating the former wife’s alimony obligation effective upon the order 

date, it remained silent on the retroactive alimony owed to the former 

husband. These omissions also require us to reverse. See Vitro v. Vitro, 

122 So. 3d 382, 385 (Fla. 4th DCA 2012).

Timesharing

The former husband next argues the trial court abused its discretion 

when it modified the timesharing agreement because there was insufficient 

evidence supporting a sufficient, material, permanent, involuntary change 

in the former wife’s circumstances and it failed to consider the best interest 

of the children. The former wife responds there was sufficient evidence of 

a material, permanent, and involuntary change in circumstances 

warranting the modification of timesharing. 

“[A] time-sharing determination can only be modified if there has been 

a ‘showing of a substantial, material, and unanticipated change in 

circumstances’ and a finding ‘that the modification is in the best interests 

of the child.”’ Korkmaz v. Korkmaz, 200 So. 3d 263, 265 (Fla. 1st DCA 

2016) (quoting § 61.13 (3), Fla. Stat.). 

 

A court cannot modify a timesharing schedule without a “determination 

that the modification is in the best interests of the child.” § 61.13 (3), Fla. 

Stat. (2018). Although the lower court “need not independently address 
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each of the listed factors” used to evaluate children’s best interest, “[it] 

must make a finding that the timesharing schedule is in the best interest 

of the children.” Davis v. Davis, 245 So. 3d 810, 812 (Fla. 4th DCA 2018). 

Here, the trial court failed to make the requisite finding of whether the 

timesharing change would be in the best interest of the children. The court 

noted the limited time (30%) the former husband spent with the children 

and that he was estranged from his son. The court ordered reunification 

therapy and joint counseling sessions. But, the trial court fell short of

finding whether the 30% timesharing was in the best interest of both 

children. Within the trial court’s oral pronouncement, it briefly mentioned 

the issue between the former husband and son, but that was the extent of 

the discussion. As we held in Davis, we must reverse because of this 

omission.

Child Support

The former husband argues there was insufficient evidence to modify 

the child support agreement and the trial court improperly applied the 

gross-up calculation method. The former wife responds the evidence 

established a substantial, material, permanent, and involuntary change in 

circumstances to support the child support modification.

We review child support modification orders for an abuse of discretion. 

Woolf v. Woolf, 901 So. 2d 905, 911 (Fla. 4th DCA 2005). “Where the 

essential findings necessary to calculate child support pursuant to the 

guidelines are missing from the record, the appellate court cannot properly 

perform its review function.” Johansson v. Johansson, 270 So. 3d 426, 

427–28 (Fla. 4th DCA 2019).

Section 61.30, which governs retroactive child support, provides: 

(b) Whenever a particular parenting plan, a court-ordered 

time-sharing schedule, or a time-sharing arrangement 

exercised by agreement of the parties provides that each child 

spend a substantial amount of time with each parent, the 

court shall adjust any award of child support, as follows:

1. In accordance with subsections (9) and (10), calculate the 

amount of support obligation apportioned to each parent 

without including day care and health insurance costs in the 

calculation and multiply the amount by 1.5.

2. Calculate the percentage of overnight stays the child spends 
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with each parent.

3. Multiply each parent’s support obligation as calculated in 

subparagraph (1) by the percentage of the other parent’s 

overnight stays with the child as calculated in subparagraph 

(2).

4. The difference between the amounts calculated in 

subparagraph (3) shall be the monetary transfer necessary 

between the parents for the care of the child, subject to an 

adjustment for day care and health insurance expenses.

5. Pursuant to subsections (7) and (8), calculate the net 

amounts owed by each parent for the expenses incurred for 

day care and health insurance coverage for the child.

6. Adjust the support obligation owed by each parent 

pursuant to subparagraph (4) by crediting or debiting the 

amount calculated in subparagraph (5). This amount 

represents the child support which must be exchanged 

between the parents.

7. The court may deviate from the child support amount 

calculated pursuant to subparagraph (6) based upon the 

deviation factors in paragraph (a), as well as the obligee 

parent’s low income and ability to maintain the basic 

necessities of the home for the child, the likelihood that either 

parent will actually 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, and whether all of the children are 

exercising the same time-sharing schedule.

8. For purposes of adjusting any award of child support under 

this paragraph, “substantial amount of time” means that a 

parent exercises time-sharing at least 20 percent of the 

overnights of the year.

§ 61.30, Fla. Stat. (2018).

Here, the trial court used the gross-up method for both children despite 

its finding that the son was not spending any overnights with the former 

husband from March 2015 to December 2017. The court acknowledged 

the need to recalculate child support in light of that fact, but then 
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incorrectly used the gross-up method, which is available only if the child 

spends at least 20% of the overnights with the parent. We must therefore 

reverse the trial court’s child support determination.

For the reasons expressed above, we reverse and remand the case for 

further proceedings consistent with this opinion.

Reversed in part and Remanded.

TAYLOR and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.