DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ELIZABETH CHAMBERLAIN,
Appellant,
v.
JOHN DOUGLAS EISINGER,
Appellee.
No. 4D12-4457
[February 11, 2015]
Appeal and cross-appeal from the Circuit Court for the Nineteenth
Judicial Circuit, Indian River County; Paul B. Kanarek, Judge; L.T. Case
No. 31-2010-DR-073492.
A. Julia Graves, Vero Beach, for appellant.
John Douglas Eisinger, Vero Beach, pro se.
GILLESPIE, KENNETH L., Associate Judge.
Appellant, Elizabeth Chamberlain (“Mother”), appeals the trial court’s
order modifying timesharing, and ordering child support and alimony.
Appellee, John Douglas Eisinger (“Father”), cross-appeals on the issues
relating to his child support and alimony obligations. We affirm the
modification of timesharing; reverse the calculation of the Mother’s child
support arrears and remand for further consideration; and remand to the
trial court to make the requisite findings relating to the issue of imputation
of income pertaining to the Father.
I. FACTS
In July 2007, a final judgment of divorce was entered in Maryland,
where the parties were residing at the time. The parties have four minor
children—two girls and two boys. Under the terms of the parties’
agreement, the Mother was given legal and physical custody of the four
minor children and the Father was required to pay $1,200 per month as
child support. The parties were ordered by the court to work with a
parenting coordinator to help set a visitation schedule. The Father agreed
to pay $2,000 per month in alimony until January 28, 2008, when the
alimony payments would increase to $2,300 per month. The alimony was
set for a term of ten years. After entry of the final judgment, the Father
moved to Florida while the Mother and children remained in Maryland.
In March 2010, the Maryland court found the Father in contempt for
failure to pay alimony and found that he had not once made an alimony
payment. Facing incarceration, the Father paid the alimony purge of
$8,000 and a child support payment of $1,200.
In August 2008, the parties entered a Consent Order in Maryland and
agreed that the Father would have primary physical custody and joint legal
custody of the older daughter, with the Mother having visitation. In
December 2009, the parties entered another Consent Order in Maryland,
this time giving the Mother sole legal and physical custody of the younger
daughter and the two sons and the Father sole legal and physical custody
of the older daughter. While no specific visitation plan was incorporated,
the parties were instructed to “discuss and arrange such visitation.” No
modification of child support occurred at that time.
In July 2010, while the Father was enjoying summer timesharing with
the four children in Florida, the Mother, unbeknownst to the Father or the
children, moved to Florida. That same month, the Maryland court entered
a new visitation order specifying dates and times for visitation. However,
the order was based on the older daughter living with the Father in Florida
and the three younger children remaining with the Mother in Maryland.
In August 2010, the Father filed a Supplemental Petition to Modify
Parenting Plan/Time Sharing Schedule and Other Relief in Florida, and
requested full custody of the parties’ four children. The Father also filed
an Emergency Motion requesting that the Mother have supervised
timesharing and that she be evaluated by a psychologist. The parties
subsequently stipulated that Dr. Edwards, a psychologist, would evaluate
the children and the parents and make a recommendation concerning
timesharing. Around the same time, the court entered a stipulated order
granting the Father’s emergency motion for timesharing which provided:
(1) on a temporary basis, the younger daughter would reside with the
Father and the Mother’s timesharing with her would be pursuant to Dr.
Edwards’ recommendation; (2) the two boys would have equal timesharing
with the Mother and Father; (3) Dr. Edwards would prepare a parenting
plan evaluation and expedite his recommendation regarding the younger
daughter; (4) both Mother and Father would submit to a psychological
evaluation; (5) each parent would have daily phone contact with the boys;
and (6) the minor children and the parents would attend
therapy/counseling.
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In March 2011, the Father filed an Amended Supplemental Petition for
Modification of the Parenting Plan/Timesharing Schedule, and
Modification of Alimony. A four-day trial was held in which the court
addressed the Father’s petition as well as the Mother’s Motion for
Contempt for failure to return personal property and for enforcement of
past due alimony and child support. At trial, both the Mother and Father
presented testimony and witnesses in an attempt to demonstrate the other
parent was to blame for any problems that arose with regard to the
children. As noted by the court, the parents clearly demonstrated an
inability to co-parent their children. The evidence presented at trial also
highlighted the contentious relationship between the Mother and her three
oldest children.
At trial, the Father presented the testimony of Ms. Pierce and Dr.
Edwards. Ms. Pierce, a parent of one of the girls on the youngest
daughter’s lacrosse team, recounted several confrontations that occurred
between the Mother and younger daughter at a lacrosse tournament in
September 2010.
Dr. Edwards performed an expedited evaluation on the younger
daughter, and conducted interviews of the children, the Mother, the
Father, the Father’s new wife, and several witnesses of the incident
between the younger daughter and the Mother at the lacrosse tournament.
As a result of his evaluation, Dr. Edwards testified that the two daughters
displayed a history of remarkable stress and emotional turmoil as a result
of their relationship with the Mother. In that regard, Dr. Edwards
recommended that the younger daughter remain with the Father and have
visitation with the Mother one day a week. Additionally, Dr. Edwards
noted that over the course of the litigation and conflict between his
parents, the older son continues to be negatively impacted and perceives
the Mother as the one to blame.
To refute Dr. Edwards’ testimony, the Mother presented the testimony
of Dr. Phil Heller, a clinical forensic psychologist, who testified that he
reviewed Dr. Edwards’ parenting plan evaluation and found several
deficiencies. Notably, Dr. Heller never met with the children in this case.
The trial court found Dr. Edwards’ testimony and reports reliable and
supported by the facts, and discredited Dr. Heller’s testimony explaining,
“[u]nfortunately, contested proceedings force the parties to seek to lay the
blame for the family problems on the other party. In this case, there is
plenty of blame to go around.”
The trial court found there was a substantial change in circumstances
since the entry of the final judgment and granted the Father’s Amended
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Supplemental Petition for Modification of Timesharing. In doing so, the
court granted the Father majority timesharing with the two daughters, and
ordered them to attend counseling with the Mother. The court granted the
Father majority timesharing with the older son, with timesharing with the
Mother on alternate weekends. The younger son was to have timesharing
with the Mother on Monday and Tuesday, and with the Father on
Wednesday and Thursday, and would alternate weekends.
As a result of the change in timesharing, the trial court ordered the
Mother to pay the Father $533 per month in child support. The
modification in child support was deemed retroactive to October 1, 2010.
The court found that as of December 1, 2012, the Mother was in arrears
in child support in the amount of $14,688.00. Because the Father had
alimony arrears due to the Mother, the trial court reduced her child
support arrears from monies owed by the Father which resulted in the
Mother’s child support arrears being zero.
The court denied the Father’s Supplemental Petition for Modification of
Alimony finding there had not been a substantial reduction in the Father’s
income since the final judgment in Maryland. As of November 30, 2012,
the Father owed the Mother $140,100 in alimony arrears. After credits for
child support arrears from the Mother and past due medical
reimbursements, the Father was found to be in alimony arrears of
$120,163.12. This appeal followed.
II. ANALYSIS
Modification of Timesharing
“[A] trial court’s order changing custody enjoys a presumption of
correctness on appellate review and will not be disturbed absent a showing
of abuse of discretion.” Sanchez v. Hernandez, 45 So. 3d 57, 62 (Fla. 4th
DCA 2010) (citing Wade v. Hirschman, 903 So. 2d 928, 935 (Fla. 2005)).
To modify an order of custody, “the movant must show both that the
circumstances have substantially, materially changed since the original
custody determination and that the child’s best interests justify changing
custody.” Id. at 61; see Wade, 903 So. 2d at 931–32 n.9; Cooper v. Gress,
854 So. 2d 262, 265 (Fla. 1st DCA 2003). The change cannot have been
contemplated by the parties. Id.
Demonstrating to the court that there has been a sufficient substantial
change in circumstances places an “extraordinary burden” on the party
seeking to modify the custody order. Sanchez, 45 So. 3d at 61–62. See
Shaw v. Nelson, 4 So. 3d 740, 742 (Fla. 1st DCA 2009). This high burden
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is intended to “preclude parties to a dissolution from continually
disrupting the lives of children by initiating repeated custody disputes.”
Pedersen v. Pedersen, 752 So. 2d 89, 91 (Fla. 1st DCA 2000). While there
is certainly a high burden, it “should not preclude legitimate review in the
best interests of the child where there have been significant changes
affecting the well being of the child, especially when the change of
circumstances has occurred over a substantial period of time.” Id.
When modifying a parenting and timesharing plan, the primary
consideration is the best interest of the children. § 61.13(3), Fla. Stat.
(2012); see Knipe v. Knipe, 840 So. 2d 335, 339-40 (Fla. 4th DCA 2003).
Courts must evaluate all relevant statutory factors affecting the welfare
and interests of the child. See § 61.13(3), Fla. Stat. (2012).
On appeal, the Mother argues the trial court erred in finding a
substantial and material change in circumstances warranting
modification of the timesharing arrangement.
After careful review of the record, we hold that the trial court did not
err in concluding there was a substantial change in circumstances
warranting modification of timesharing. The trial court considered
evidence relevant to each of the statutory factors before finding there had
been a substantial change in circumstances and that modification was in
the best interest of the children.
The court found the Father displayed an ability to consider and act on
the children’s needs, whereas the Mother had considerable difficulty in
this respect. The trial court found that “[t]he mother’s inability to act on
or consider the needs of her children has caused substantial problems in
her relationship with her two oldest children and is causing problems with
her oldest son.” Moreover, the trial court took into account the daughter’s
desire to live with the Father, and noted that the sons were too young to
express a reasonable preference. While finding that both parents were
“fit”, the court found that the “mother has demonstrated that as her
children enter their teenage years she has great difficulty in meeting her
children’s needs.” Also, the trial court considered the fact that the children
had been spending the majority of their time with the Father and were all
thriving in school and sports.
The record is replete with factors which support a material change in
circumstances to modify the time sharing and that such modification was
in the best interest of the children. The trial court’s decision will not be
disturbed.
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The Mother also argues that by ordering therapy for her and her two
daughters and giving the Father sole custody of the daughters, the trial
court has effectively undermined her reunification efforts. As such, the
Mother argues that giving the Father sole responsibility to ensure his
daughters will attend therapy sessions was an abuse of discretion.
“[A] custodial parent has an affirmative obligation to encourage and
nurture the relationship between the child and the noncustodial parent.”
Schutz v. Schutz, 581 So. 2d 1290, 1292 (Fla. 1991). See Schutz v. Schutz,
522 So. 2d 874, 875 (Fla. 3d DCA 1988); Gardner v. Gardner, 494 So. 2d
500, 502 (Fla. 4th DCA 1986); In re Adoption of Braithwaite, 409 So. 2d
1178, 1180 (Fla. 5th DCA 1982). This entails “encouraging the child to
interact with the noncustodial parent, taking good faith measures to
ensure that the child visit and otherwise have frequent and continuing
contact with the noncustodial parent and refraining from doing anything
likely to undermine the relationship naturally fostered by such
interaction.” Id.
We hold on this record that the Mother failed to provide any evidence
that the Father has or intends to thwart the reunification efforts between
the Mother and her daughters. In fact, the trial court found that the
Mother was the one who made disparaging comments to the children
about the Father. Because the Mother failed to provide evidence to
support her argument, we affirm.
Child Support
“The standard of review for a child support award is abuse of
discretion.” McKenna v. McKenna, 31 So. 3d 890, 891 (Fla. 4th DCA 2010)
(citing Karimi v. Karimi, 867 So. 2d 471, 473 (Fla. 5th DCA 2004)).
On this issue, the Mother argues the trial court incorrectly included
unpaid alimony to decrease the Father’s income and increase her income
in the calculation of child support. The trial court found that the
modification of child support was retroactive to October 1, 2010, when the
Mother and Father entered into an agreed order placing the older daughter
with the Father and requiring equal timesharing for the sons. In
calculating the retroactive child support, the trial court included the
$2,300 in alimony the Mother was to receive, as income to her. However,
as the Mother correctly points out, the record reveals that the Father had
not consistently paid alimony during that time frame. In fact, as of
November 30, 2012, the trial court found the Father owed the Mother
$140,000 in past due alimony.
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Accordingly, the trial court erred in factoring in the Father’s payment
of alimony each month where he failed to make payments. Because of this
error, this Court remands to the trial court for a determination of the
amount of alimony the Father paid between October 1, 2010, and the entry
of final judgment to determine the offset to the Mother’s retroactive child
support obligation. See Marlowe v. Marlowe, 123 So. 3d 1194, 1196 (Fla.
1st DCA 2013) (retroactive child support calculations erroneous where
child support worksheets reflect that former husband paid alimony every
month, thereby increasing former wife’s income and decreasing former
husband’s, where former husband had not paid alimony consistently); see
also Swor v. Swor, 56 So. 3d 825, 826 (Fla. 2d DCA 2011) (where former
husband failed to pay alimony, “it was error to include the sums due for
this time period in the calculation that was the basis for the amount of
retroactive child support awarded in the final judgment”).
This Court has considered the Mother’s other argument concerning
child support and affirms without comment.
Father’s Cross-Appeal (Alimony)
In his cross-appeal, the Father argues the trial court erred in denying
his request to modify alimony. He argues the trial court incorrectly
imputed the Mother’s income by failing to include the benefits she received
through her employment. The trial court’s order specifically took into
account benefits the Mother received from her employer. Accordingly, the
Father’s claim is without merit.
Additionally, the Father asserts the trial court erred by imputing
income to him. The Father contends the trial court erred in finding he had
an annual income of $75,6001.
In concluding that the Father has a yearly income of at least $73,000,
it appears the trial court relied on a combination of evidence: (1) the Father
and his current wife bought a $635,000 home in 2010; (2) they have a 30-
foot boat which the Husband asserted had been repossessed; (3) the
mortgage on the property is $1,900 per month and at the time of trial, the
mortgage was current; (4) the Father does not have a checking or savings
account in his name due to an IRS lien and operates only with cash; (5)
the father admitted that his former father-in-law has allowed him to charge
items on his American Express totaling more than $100,000; and (6) the
1The Father incorrectly states the trial court found he had an income of at least
$75,600, where the final judgment reflects the trial court found he had an income
of at least $73,000 per year.
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Father has repaid all of the money except for $17,000 which he continues
to make payments on.
However, the Father testified he makes $12 per hour and worked
between 60 and 80 hours per week at the bait shop he and his current
wife owned. In the final judgment, the trial court incorrectly stated the
Father testified he made $20 per hour.
Notwithstanding the fact that the Father obviously had other sources
of income, the trial court’s final judgment does not state the specific factors
the trial court considered in calculating the Father’s income, only stating
that number was determined “[b]ased on all of the evidence presented.”
This Court, on this record, acknowledges that there was certainly
evidence suggesting that the Father was not being entirely truthful
regarding his finances; “[w]hen imputing income, the trial court must set
forth factual findings concerning the probable and potential earnings level,
source of imputed and actual income, and adjustments to income.” Alon
v. Alon, 665 So. 2d 1110, 1111 (Fla. 4th DCA 1996) (citing Jones v. Jones,
636 So. 2d 867, 868 (Fla. 4th DCA 1994)); see also Bimonte v. Martin-
Bimonte, 679 So. 2d 18, 19 (Fla. 4th DCA 1996) (error to impute income to
husband without setting forth factual findings to support imputation).
In Alon, we held the trial court’s imputation of income, without
providing the source of the imputed income, was error. 665 So. 2d at
1111. In remanding, this Court noted that “[t]he trial court obviously felt
appellant had resources, but did not delineate them as the basis for the
imputed income.” Id. This was error. The same error occurred here. The
trial court in this case clearly felt that the Father had resources, but failed
to make the requisite findings as to how the $73,000 figure was derived.
Notably, this Court commends the trial court’s diligence in deciphering
the issues, digesting the extensive history associated with this case, and
the patience displayed in refereeing such a contentious contest below.
Affirmed in Part; Reversed in Part and Remanded.
DAMOORGIAN, C.J., and STEVENSON, J., concur.
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Not final until disposition of timely filed motion for rehearing.
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