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. 5D15-2926
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. Both parties appeared pro se below 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 decision-making responsibility between the two
parents and established child-support obligations for each. Mother raises more 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).
Our review in this case is significantly hampered by the lack of a trial transcript.
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). We do,
nonetheless, have the exhibits entered into evidence at trial, including the police report
from a 2006 altercation between the parties, along with the findings of fact from the final
judgment. 1 The 2006 incident occurred outside the Melbourne Mall and was described by
three independent witnesses. The witnesses recounted seeing Father chase Mother
around the mall 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 there
was anyone else in the car; yet once backup arrived, Mother was found lying down on the
floor in the back of the truck cab with the seat folded up, covered in glass from the
shattered window and visibly injured. Father ultimately pleaded nolo contendere to
disorderly conduct and was sentenced to twelve months of probation and ordered to
attend an anger management course. 2
Mother argues on appeal 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 trial court excluded police reports
reflecting Father’s history of domestic violence, the 2006 report, at least, was entered into
evidence and included 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 arrested 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 evidence, of other offenses
that included a 2012 arrest for an aggravated assault related to domestic violence. We
do not know whether there was testimony to support that allegation.
2
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, shows that the trial court at least considered these incidents but found that it
was “unable to conclude that any domestic violence actually took place.” Because she
has failed to identify any additional record evidence that was unacknowledged in the trial
court’s final order, Mother has failed to show that the court failed 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 determine 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 violence is disturbing, the main incident occurred ten years
ago—before the birth of the parties’ children—and according to the final judgment, Father
has been involved in the children’s lives, and the trial court believed he should continue
to play an active role in their future. 4
3 See Applegate, 377 So. 2d at 1152 (“In appellate proceedings the decision of a
trial court has the presumption of correctness and the burden is on the appellant to
demonstrate error.”).
4Likewise, while the final judgment found that Father had been involuntarily
committed to state custody under the Baker Act “once or twice in the past,” Father’s last
3
In addition, Mother has not always fulfilled her duty to facilitate the relationship
between Father and the children. Prior to the filing of the paternity action, the parties had
worked out an informal time-sharing arrangement. Despite 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 participate in making decisions
for the parties’ children. Text messages entered into evidence also showed a reticence
on Mother’s part to involve Father in the raising of the children, although 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, we cannot say that the
trial court abused its discretion in determining that equal time-sharing is in the best
interests 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
guidelines. 5 The trial court refused to deduct Mother’s mandatory retirement benefits from
her gross income. Section 61.30(3), Florida Statutes (2012), lists the expenses that
parents 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.
5We 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).
4
mandatory.” Yet it is undisputed that Mother is a teacher employed by the 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) (upholding, 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 findings 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 remand for further findings as to
Father’s probable and potential future earnings. 7
AFFIRMED IN PART; REVERSED IN PART; and REMANDED.
LAWSON, C.J., and BERGER, J., concur.
6 Mother brought this issue to the trial court’s attention in her motion for rehearing
and even 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.
5