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
WARREN FOLEY,
Appellant,
v. Case No. 5D16-1710
GINA MARIE FOLEY,
Appellee.
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Opinion filed March 3, 2017
Appeal from the Circuit Court
for Orange County,
Mike Murphy, Judge.
Gary S. Israel, of Gary Israel, P.A., Orlando,
for Appellant.
Andrew J. Chmelir, of Jacobson, Chmelir &
Ferwerda, Winter Springs, for Appellee.
PALMER, J.
Warren Foley (the father) appeals two post-dissolution orders, one denying his
request to modify his child support obligation and the other denying his request for an
award of attorney's fees. We affirm the order regarding attorney's fees without discussion,
but we reverse the order regarding child support.
The father argues that the trial court reversibly erred in denying his request to
modify his child support obligation. Specifically, he asserts that the trial court's ruling was
erroneous because (1) the trial court incorrectly stated that no financial affidavits were
admitted into evidence during the modification hearing, and (2) the court failed to
recognize that the issue was tried by consent. We agree.
In 2006, the parties’ marriage was dissolved and, among other things, Gina Foley
(the mother) was granted primary custody of their son. In 2014, the father filed a petition
seeking to modify the parties' time-sharing arrangement. Along with the petition, the father
filed a financial affidavit which, in pertinent part, stated that "this case involves the
establishment or modification of child support." In response, the mother filed a pro se
"Counter Supplemental Petition of Modification of Child Support," which also sought
modification of the parties' time-sharing arrangement. She also filed a financial affidavit
that stated that "this case involves the establishment or modification of child support."
Thereafter, during the modification hearing, counsel for the father stated:
I've prepared child support guidelines based on every other
weekend with mom. We keep the same holiday schedule as
has been previously ordered by the [c]ourt. The child support
needs to be recalculated.
Both parents identified their financial affidavits, and the trial court admitted them into
evidence. The father also identified a child support guideline document which had been
prepared by his counsel.
The court entered an order that modified the parent's time-sharing arrangement
and stated that child support "will be modified based upon a new child support guidelines
worksheet to be prepared by [the father's counsel]." However, upon subsequent review,
the trial court entered an order stating that the court lacked the "authority to modify child
support where the matter was not plead or tried by consent and where no financial
affidavits were submitted." Contrary to the trial court's ruling, the financial affidavits were
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admitted into evidence during the modification hearing, and the record demonstrates that
both parties were on actual notice that child support modification was at issue in the
proceedings below. Accordingly, the trial court's order on child support is reversed, and
this matter is remanded for the trial court to consider the father's child support modification
request.
AFFIRMED in part; REVERSED in part; REMANDED.
SAWAYA and ORFINGER, JJ., concur.
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