DELANA J. CAMPBELL, N/K/A DELANA J. STELLY, APPELLANT,
v.
WILLIAM E. CAMPBELL, APPELLEE

Fla. 1st DCA | 1994-01-14
No. 93-1779
SMITH and MICKLE, JJ., concur.
635 So. 2d 44 Florida District Court of Appeal, First District (1994)

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In this family law appeal, the former wife challenged a modification order concerning child support, relocation restrictions, and attorney fees in a divorce case. The First District Court of Appeal affirmed the increased child support award but reversed the relocation restriction and the denial of attorney fees, finding the trial court abused its discretion on those issues.


Holding

The court affirmed the increased child support award but reversed the relocation restriction as an abuse of discretion lacking a finding of changed circumstances. The court also reversed the denial of attorney fees, finding the trial court improperly considered the present husband's financial resources, and granted the former wife's motion for appellate attorney fees.


Headnotes

[1] A trial court abuses its discretion by modifying a final judgment regarding child relocation when it explicitly finds no change in circumstances has occurred since the en…

[2] Employer contributions to a profit sharing plan are not considered income for child support calculations when the employee owns no stock, the plan is not voluntary, and t…

Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Key Quotes

“The trial court's order explicitly found that no change in circumstances had occurred since entry of the final judgment warranting modification of the final judgment with respect to relocation. It therefore abused its discretion in modifying the final judgment to prohibit the former wife from permanently removing the child from the vicinity of Lexington, except to the jurisdiction of the Florida court, without applying for permission to relocate the child.”

Establishes that the trial court's relocation restriction was an abuse of discretion because it contradicted its own finding of no changed circumstances.

Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

The parties' 1988 settlement agreement required the former wife (primary residential parent) to give the former husband 60 days' notice before relocat…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
BARFIELD, Judge.

BARFIELD, Judge.

The former wife appeals an order modify-, ing a final judgment of dissolution of marriage to increase the former husband’s child support obligation and to prohibit future relocation of the minor child without the court’s permission. We affirm in part and reverse in part.

The parties’ settlement agreement, incorporated into the 1988 final judgment of dissolution, requires only that the former wife, who was designated the primary residential parent, give the former husband sixty days notice of any intended relocation of the minor child now that he has reached the age of six years. When she informed him that she intended to relocate with the child outside the Pensacola area, he filed a petition for modification seeking a change in the child’s primary physical residence, or alternatively, a restraining order prohibiting the former wife from relocating the child on a permanent basis. She counter-petitioned for permission to relocate with the child to Lexington, Kentucky, and also sought an increase in child support, plus attorney fees and costs.

The trial court allowed her to relocate to Lexington under certain conditions which are not at issue here, but ordered that she was prohibited from further relocation, except back to Pensacola, without the court’s permission. It awarded her increased child support, but denied her request for attorney fees and costs.

The trial court’s order explicitly found that no change in circumstances had occurred since entry of the final judgment warranting modification of the final judgment with respect to relocation. It therefore abused its discretion in modifying the final judgment to prohibit the former wife from permanently removing the child from the vicinity of Lexington, except to the jurisdiction of the Florida court, without applying for permission to relocate the child. On remand, the trial court shall strike this provision.

Contrary to the former wife’s contention, we do not find that the trial court erred in refusing to include as income, for purposes of determining the increased amount of child support, contributions made by the former husband’s employer to his profit sharing plan, in light of the former husband’s unrebutted testimony that he owns no stock in the company, that the profit sharing plan is not voluntary, and that the contributions to the plan are made by the employer and are not within his control.

However, we find that the trial court abused its discretion in failing to award the increased child support retroactive to the date of the petition for modification, because the child’s increased need for support and the former husband’s ability to pay the increased child support existed at the time the former wife’s petition for modification was filed. Anderson v. Anderson, 609 So. 2d 87 (Fla. 1st DCA 1992). On remand, the trial court shall amend the order to make the award of increased child support retroactive to the date the former wife’s counter-petition for modification was filed.

The trial court also abused its discretion in refusing to award the former wife reasonable attorney fees to be paid by the former husband, based on its improper consideration of the financial resources of the former wife’s present husband in determining the relative financial resources of the parties. Azzarelli v. Pupello, 555 So. 2d 1276 (Fla. 2d DCA 1989). On remand, the-trial court shall order the former husband to pay such reasonable amount of the former wife’s attorney fees and costs from the proceedings below as may be found necessary because of the disparate individual economic needs and abilities of the parties.

The former wife’s motion for appellate attorney fees is granted. On remand, the trial court shall order the former husband to pay such reasonable amount of the former wife’s appellate attorney fees and costs as may be found necessary because of the disparate individual economic needs and abilities of the parties. Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977).

The order is AFFIRMED in part, REVERSED in part, and the cause is REMANDED for amendment of the order consistent with this opinion.

SMITH and MICKLE, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw