TAMARA LYNN WOLVERTON

v.

CHRISTOPHER WOLVERTON

SIXTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________

Case No. 6D2023-3821 Lower Tribunal No. 2022DR-003161-0000-00 _____________________________

TAMARA LYNN WOLVERTON, Appellant, v. CHRISTOPHER WOLVERTON, Appellee. _____________________________

Appeal from the Circuit Court for Polk County. Keith P. Spoto, Judge.

November 26, 2025

TRAVER, C.J.

Tamara Wolverton (“Former Wife”) appeals a final divorce judgment. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). Former Wife challenges many aspects of the trial court’s parenting, equitable distribution, and child support decisions, but only two points merit discussion. The trial court erred by failing to make written factual findings on the best interests factors contained in section 63.13, Florida Statutes (2023), when it issued its decision awarding shared parental responsibility to Christopher Wolverton (“Former Husband”). It also improperly

I.

Former Wife married Former Husband in 2016, and they have two children together. Before the parties’ separation, they lived with five other children from Former Wife’s previous relationship. In 2021, Former Wife petitioned for a domestic violence injunction against Former Husband, which she later dismissed. In 2022, Former Wife sought a sexual violence injunction against Former Husband on behalf of one of her children from her previous relationship. The trial court entered the injunction. Following the injunction’s issuance, Former Wife filed for divorce, in which she sought sole parental responsibility and child support. Former Husband counterpetitioned, seeking shared parental responsibility and a child support determination. Following a temporary relief hearing, the trial court restricted Former Husband’s timesharing to supervised visitation. It also awarded child support to Former Wife. In calculating Former Husband’s support obligation, it credited Former Wife’s testimony that she was unemployed but soon expected to get a job that earned $1,050 per week. The trial court temporarily and without prejudice imputed this income amount to her.

II.

The trial court erred by failing to make written findings on the best interests factors. It also improperly imputed income to her when no competent, substantial evidence supported the award. We address these issues in turn.

A.

We review the trial court’s decisions on a parenting plan for an abuse of discretion. See J.N.S. v. A.M.A., 194 So. 3d 559, 560 (Fla. 5th DCA 2016) (citing Schwieterman v. Schwieterman, 114 So. 3d 984, 987 (Fla. 5th DCA 2012)). Our interpretation of the timesharing statute, though, is de novo. See Orosco v. Rodriguez, 376 So. 3d 92, 94 (Fla. 6th DCA 2023) (citing McGovern v. Clark, 298 So. 3d 1244, 1248 (Fla. 5th DCA 2020)). To evaluate whether the trial court erred in failing to make written findings under section 61.13(3), we must first determine which version of the statute applied. The 2023 version became effective between the trial’s conclusion and the final judgment’s entry. The 2022 version did not require written findings on the best interests factors. See generally § 61.13, Fla. Stat. (2022). By contrast, the 2023

7 of Lakeland v. Catinella, 129 So. 2d 133, 136–37 (Fla. 1961) (“[S]tatutes relating to . . . procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing, do not come within the legal conception of a retrospective law, or the general rule against retrospective operation of statutes.” (citing Cunningham v. State Plant Bd. of Fla., 112 So. 2d 905, 906 (Fla. 2d DCA 1959))). Former Wife preserved this issue for our review by raising it in her motion for rehearing. See Fla. Fam. L.R.P. 12.530(a) (“To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule.”). The trial court erred by not making written findings on the section 61.13(3) factors that supported its determination of shared parental responsibility, including the abuse allegations that Former Wife raised at trial. On remand, the trial court must enter an amended final judgment that includes these written findings. This does not require a new trial unless the trial court cannot make the necessary determinations from the trial transcript. We do not disturb the trial court’s shared parental responsibility finding unless its written findings cannot justify it. See § 61.13(2)(c)2., Fla. Stat. (2022) (“The court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child. . . . Whether or not there is a

8 conviction of any offense of domestic violence or child abuse or the existence of an injunction for protection against domestic violence, the court shall consider evidence of domestic violence or child abuse as evidence of detriment to the child.”).

B.

We review a child support award for an abuse of discretion. See Phara v. Robert, 406 So. 3d 983, 984 (Fla. 3d DCA 2025) (citing Smith v. Loffredo-Smith, 230 So. 3d 898, 899 (Fla. 4th DCA 2017)). We assess a trial court’s findings supporting imputation of income for competent, substantial evidence. See Girard v. Girard, 351 So. 3d 27, 30 (Fla. 4th DCA 2022) (citing Niederman v. Niederman, 60 So. 3d 544, 550 (Fla. 4th DCA 2011)). Subject to exceptions not relevant to this appeal, trial courts “shall” impute monthly income if they find a parent is voluntarily unemployed or underemployed. See § 61.30(2)(b), Fla. Stat. (2022). Trial courts determine an unemployed or underemployed parent’s employment potential and probable earning level “based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.” See id. No competent, substantial evidence supported the trial court’s imputation of income. As the party seeking to impute income, Former Husband had the burden to show “both employability and that jobs are available.” See Jorgensen v. Targarelli, 312 So. 3d 505, 507 (Fla. 5th DCA 2020) (quoting Dottavino v. Dottavino, 170 So.

9 3d 98, 100 (Fla. 5th DCA 2015)). He adduced no evidence on Former Wife’s job search, her potential earning capacity, or available positions. Former Husband also did not challenge Former Wife’s testimony that she could not obtain full-time employment because she was caring for the five minor children who lived with her without assistance. The trial court imputed income to Former Wife based on her testimony at a temporary hearing that occurred over ten months before trial. But Former Wife said that her stated expectations of getting a job at that income never came to fruition, and multiple other attempts to obtain work had failed. Based on our record, the trial court’s decision to impute $1,050 per week to Former Wife had no factual basis supporting it. This, in turn, affected the trial court’s child support award. On remand, the trial court must recalculate the child support award based on the parties’ current earning abilities, taking evidence as needed. See Jorgensen, 312 So. 3d at 507. AFFIRMED in part; REVERSED in part; and REMANDED with directions.

SMITH and GANNAM, JJ., concur.

Debra J. Sutton, of Sutton Law Firm, Bartow, for Appellant.

Christopher Wolverton, Lakeland, pro se.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING

AND DISPOSITION THEREOF IF TIMELY FILED