Bachman v. Mclinn

• Decision Date: 10 June 2011
• Docket Number: No. 2D10–2325.,2D10–2325.
• Citation: 65 So.3d 71
• Parties: Katy BACHMAN, Appellant,v.Michael McLINN, Appellee.
• Court: Florida District Court of Appeals

65 So.3d 71

Katy BACHMAN, Appellant,

v.Michael McLINN, Appellee.

No. 2D10–2325.

District Court of Appeal of Florida, Second District.

June 10, 2011.

William McGrew of Law Firm of Sam R. Assini, LLC, Cape Coral, for Appellant.Renee Binns of Binns Family Law Associates, P.A., Fort Myers, for Appellee.CASANUEVA, Chief Judge.

Katy Bachman (the Mother) appeals the supplemental final judgment that granted Michael McLinn's (the Father's) supplemental petition for modification of the prior final judgment of dissolution of their marriage and denied her supplemental counterpetition for modification. The modifications related primarily to child custody and child support. The Mother raises five issues on appeal. We reverse.

FACTS

After twenty-five years, the parties' marriage was dissolved by a final judgment entered on December 30, 2005. The final judgment incorporated a mediated marital settlement agreement (MSA) that designated the Mother as the primary residential parent of the parties' eight-year-old only child. The MSA provided a routine visitation schedule for the Father. The MSA also included a stipulated amount for the Father's income despite the fact that his income was in flux at that time.

When certain bills remained unpaid, the Mother moved for contempt asserting that the Father had failed to pay his share of the child's uncovered medical expenses as the MSA required. A subsequent magistrate's report concluded that the Father paid the overdue expenses only after the Mother had initiated enforcement proceedings and recommended that the Father reimburse the Mother her filing fees. Shortly thereafter, in early 2007, the Father filed a supplemental petition seeking to modify the terms of the dissolution judgment and its incorporated MSA.

Generally, the Father sought “relief consistent with this Supplemental Petition and such other and further relief as to this court shall seem proper.” One of his pleaded primary claims was that a substantial, material, and unanticipated change in circumstances had occurred since the original custody determination. Thus, he sought a change in the designation of the primary residential parent, claiming that it was in the best interest of the child that the child reside primarily with him or, in the alternative, a downward modification of his child support obligation. His supplemental petition, in seeking to demonstrate the substantial, material, and unanticipated change in circumstances, listed several occasions detailing when the Mother had declined to accede to some of the Father's demands.

Trial began in January 2010. At trial, however, the Father's claims differed from what he had pleaded in his supplemental petition. At trial he sought to modify the child support amounts to reflect what he had paid during previous years. He also testified to wanting more time with his child and to be part of shared parenting.

At the close of the Father's case, the Mother unsuccessfully moved for a directed verdict contending that the Father's evidence failed to establish that a substantial, material, and unanticipated change in circumstances had taken place to warrant a change from her to him as the primary residential parent. Over the Mother's objection, the trial court also granted the Father's motion to amend the pleadings to conform to the evidence.

PRIMARY RESIDENTIAL PARENT VERSUS TIME SHARING

The legislature of our state amended section 61.13, Florida Statutes (2008), effective October 1, 2008. Lombard v. Lombard, 997 So.2d 1188, 1190 n. 1 (Fla. 2d DCA 2008). Among the various amendments were those removing statutory references to “custody,” “primary residence,” “primary residential parent,” and “visitation”; substituted were terms such as “parenting plan,” which includes “time sharing.” Cobo v. Sierralta, 13 So.3d 493, 501 n. 4 (Fla. 3d DCA 2009). Thus, section 61.13(2)(c)(1) now directs that “[t]here is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.”

The supplemental final judgment is couched in language of “time sharing,” i.e., the language of section 61.13 as amended in 2008. The Father concedes that the trial court was erroneously asked to and did apply the newly amended statute in reaching its ultimate conclusions. This was error because the parties' case must be decided under the prior version of the statute.

A factually similar case is Hahn v. Hahn, 42 So.3d 945 (Fla. 4th DCA 2010). There, in 2005, the trial court entered a final judgment dissolving the parties' marriage that incorporated an MSA. In 2007, each parent filed a supplemental petition seeking modification of visitation and time sharing. Applying the 2008 amendments to section 61.13, the trial court removed Mrs. Hahn's designation as the primary residential parent, ordered a fifty-fifty time sharing plan for the parties with their children, and reduced Mr. Hahn's child support obligation.

On appeal, Mrs. Hahn contended that the retroactive application of section 61.13 as amended in 2008 was improper. The Fourth District agreed, saying: “A statute is not operative as law until the date at which it takes effect [,] and it operates prospectively unless the intent that it operate retrospectively is clearly expressed.” Id. at 947 (quoting Imperial Point Colonnades Condo., Inc. v. Freedom Props. Int'l, Inc., 349 So.2d 1194, 1195 (Fla. 4th DCA 1977)). This is particularly true because there are instances where retrospective operation of the law would act to impair or destroy existing rights. Id. (citing Horn v. Fla. Dep't of Revenue ex rel. Abel, 752 So.2d 687, 688 (Fla. 3d DCA 2000)). The Fourth District concluded that the application of the statute “clearly impaired the former wife's existing rights over her children.” Id.

We reach the same conclusion. Here, the Mother's rights were set forth in a contract that utilized then-existing statutory law. The retrospective application of the new statute would impair those rights. We agree, too, with the Fourth District's conclusion that the legislature did not intend the retroactive application to child custody judgments which became final before the effective date of the legislation.

We observe that the trial court did not have the benefit of Hahn because it issued after the instant proceedings had concluded. The primary residential custody of the parties' child as outlined in the MSA shall be returned to the Mother im...