Family Law Case Law Updates-opinions filed May 1-May 9, 2013

FAMILY LAW CASE LAW UPDATES
OPINIONS FILED MAY 1, 2013-MAY 9, 2013
SUPREME COURT OF FLORIDA-FAMILY LAW FORMS
IN RE: AMENDMENTS TO THE FLORIDA SUPREME OURT APPROVED FAMILY LAW FORMS, OPINION FILED MAY 9, 2013
(PER CURIAM.)
Pursuant to the procedures approved by this Court in Amendments to the Florida Family Law Rules of Procedure & Family Law Forms, 810 So. 2d 1, 14 (Fla. 2000), this Court has internally reviewed the Fla. SC Approved Family Law forms and has determined that new forms and amendments to several existing forms are needed inl ight of recent legislation relating to injunctions for protection against stalking. See ch. 2012-153 Sections 3,4, Law of Fla. (amending Chapter 784, Fla. Stat., creating a cause of action for an injunction for protection against stalking) (effective October 1, 2012). Input on these issues was received from the Advisory Workgroup on the Fla. SC Approved Family Law Forms, which provided valuable assistance. We have jurisdiction. See art. V, sec. 2(a) Fla. Const.
In general, the amendments to the existing forms: (1) add the term “stalking” to the forms’ respective titles, bodies, footers and instructions, where appropriate; (2) add language to the instructions to form 12.980(g) regarding the information to include in a supplemental affidavit in support of a petition for injunction against stalking; (3) add a blank textbox to the supplemental affidavit in support of a petition for injunction against stalking for the petitioner to describe the alleged stalking; and (4) renumber several forms. In accord with the amendments to chapter 784, Fla. Stat., the new forms adopted are forms 12.980(t) (Petition for Injunction For Protection Against Stalking), 12.980(u) (Temporary Injunction For Protection Against Stalking), and 12.980(v) (Final Judgment For Protection Against Stalking). See ch 2012-153, Sections 3,4 Laws of Fla.
The new and amended forms are adopted and set forth in the appendix to this opinion, fully engrossed, effective for immediate use. The forms may also be accessed and downloaded from the Florida State Court’s website at: www.flcourts.org/gen_public/family/forms_rules/index.shtml. By adoption of the new and amended forms, we express no opinion as to their correctness or applicability. We also direct that the new and amended forms e published for comment. Interested persons shall have sixty days from the date of this opinion to file comments with the court. The appendix is not included in this report, due to its length. It may be viewed inits entirety in the Rules Revisions Section of the FLW website at: www.FloridaLawWeekly.com at no charge. Subscribers to FLW may call the office to request a copy at 1-800-351-0917.
DISSOLUTION OF MARRIAGE-CHILD SUPPORT-MODIFICATION
In Thompson v. Watts f/n/a Thompson, 38 FLW D999a (Fla. 1st DCA, opinion filed May 6, 2013) the former husband appealed the trial court’s denial of his petition for modification of child support. The trial court had previously entered a jointly stipulated final judgment dissolving the parties marriage in 2005. They had three minor children at the time. The provision for child support stated in relevant part:
8. The Husband shall pay child support for the benefit of the minor children in the sum of $1,600.00 per month beginning October 1, 2005, and continuing on the 1st day of each month thereafter. The Husband’s support obligation shall terminate or decrease only when there are no minor children because of one of the following events has occurred with regard to the minor children: (a) the death of the child; (b) attainment of her 18th birthday or up to her 19th birthday so long as the child is in fact dependent, between the ages of 18 and 19, still in school, and performing in good faith with a reasonable expectation of graduation before the age of 19; (c) the valid marriage of the child; (d) a lawful entry of the child into the military service of the United States of America for a continuous period of time of one year or more; € the child becoming self -supporting by permanent and full-time employment, exclusive of holidays and vacation; or (f) further order of this court.
The oldest child turned 18 and graduated from high school in May 2011. The former husband filed for modification in June 2011 seeking downward modification. He followed his petition with a motion for summary judgment. The former wife opposed both arguing the provision required him to pay the full $1,600.00 monthly until all three of their children had undergone one of the qualifying events. Three hearings were held in the matter with the trial court ultimately issuing an order denying the modification finding there was a a latent ambiguity in paragraph 8 and in the absence of testimony or evidence concerning the intent of the parties, the court must construe the provision of paragraph 8 to represent al unallocated award of child support in the amount of $1,600.00 and therefore the modification had to be denied. The former husband moved for a rehearing, which was denied and this appeal followed.
The DCA reviewed de novo as the issue was the interpretation of a divorce decree born of a joint settlement agreement. The court found that paragraph 8 was far from a model of clarity. The court correctly found the paragraph ambiguous, but also found it was “latent” meaning parole evidence was required to determine the true intent and without such testimony it had no choice but to find the provision an unallocated child support award.
The DCA pointed out that parole evidence is only permitted to be considered when the contract language contains a latent ambiguity-meaning there is more than one possible meaning and extraneous evidence is needed to interpret between two or more possible meanings. Patent ambiguities are on the face of a document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways. The trial court erred in its determination that the ambiguity in the support provision was latent. First, no extrinsic evidence was presented to create an ambiguity. Second, the language under scrutiny was anything but clear and intelligible, suggesting but a single meaning. The ambiguity is clear is clear on its face, even without extrinsic evidence, and the provision leads itself to two possible interpretations. By finding the provision latently ambiguous and requiring extrinsic evidence to interpret it, and pointing to the Mother’s objection to introducing any such evidence, the trial court determined incorrectly that it could not interpret the provision and therefore had to deny the father’s petition. Because the provision was in patently ambiguous, this was error, and it was for the trial court to interpret the support provision as it would any contract. See Avellone, 951 So.2d at 83.
The trial court also determined that the support provision was unallocated, without explanation, apparently determined that this too prevented it from modifying the father’s support obligation. Whether a support obligation is or is not allocated is only relevant as to the effective date of any modification-upon the qualifying event or as of the date of the filing a modification petition. When support is allocated (i.e., not lump-sum), the obligor is entitled to seek modification retroactive to the event date. Gilbert v. Cole, 107 So. 3d 426 (Fla. 1st DCA 2012). When the award is unallocated (i.e., a lump-sum), there is no automatic reduction retroactive to the qualifying event.
[T]here are cases in which the support awarded for several children is not sufficient in amount, but all that the spouse can afford to pay. Therefore, to require an equal division for each child and an automatic reduction in the amount upon each child reaching majority would be inadequate in such cases. When the final judgment awards a lump sum amount for several children, it becomes necessary for the husband to petition for an order reducing the amount when one child attains majority. Hammond v. Hammond, 492 So. 2d 837,838 (Fla. 5th DCA 1986)
The Hammond court also held that because the appellant did not file a petition for modification, “and because no evidence was taken upon which the court could determine that a modification was appropriate and in the best interest of the remaining minor child, modification of the award was error.” Id. At 839. Thus, although a qualifying event occurs, the payor may not be entitled to have the amount of support modified, either retrospective or prospective, if the reduction would not be adequate to support the remaining child(ren).
Just because an award is not allocated does not constitute grounds to deny a petition for modification. The payor of an unallocated award, upon the occurrence of a qualifying event, or anytime thereafter, must petition the court for modification and must prove entitlement to modification based on the relevant statute and guidelines.
Turning to the interpretation of the provision in this case, the DCA found that it provided that child support will “terminate or decrease” upon the occurrence of certain events. The court found that if the amount was intended to continue without reduction until a qualifying event had occurred with respect to all three children, the italicized words would be superfluous-the word terminate by itself would have sufficed. Also the use of the singular in the qualifying events would be nonsensical if they qualifying event was for all three children.
The DCA found that the more logical interpretation of the agreement is that the child support obligation is subject to termination if a qualifying event occurs for all three children at or near the same time, or if one or more such events already occurred as to all three children. Likewise, the support obligation is subject to a decrease with the occurrence of a qualifying event as to each child, but with the proviso that after such an event has occurred as to two of the children, the award is subject to termination when such event occurs with respect to the remaining child, i.e., when there are no remaining minor children. Because one of the children reached the age of majority and graduated from high school in this case-a qualifying event-the father was entitled to petition for a downward modification. The issue of whether the award was unallocated is moot in this case because the father filed the petition on June 1, 2011 the day after the qualifying event such that there is no issue of whether any modification of the award is retroactive to the qualifying event or the date the petition was filed. The Order denying the father’s petition for modification was reversed and remanded for proceedings consistent with this opinion.
CHILD SUPPORT-MODIFICATION
In Rodriguez v. Reyes, 38 FLW D974b (Fla. 3rd DCA, opinion filed May 1, 2013) the father appealed the trial court’s Order that reweighed the evidence in its review of the magistrate’s report. The DCA reversed explaining that once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate. Cerase v. Dewhurst, 935 So. 2d 575, 578 (Fla. 3d DCA 2006). In such instances the trial court takes on a role similar to that of an appellate court reviewing a trial court’s actions. Where, as here, exceptions to the magistrate’s report have been filed, “a trial court reviews the record to determine whether the magistrate’s factual findings and conclusions are supported by competent substantial evidence, and whether the magistrate’s legal conclusions are clearly erroneous or whether the magistrate misconceived the legal effect of the evidence.” Id.
I
n this case the magistrate’s factual findings were supported by direct testimony in the record. The financial affidavits submitted by the father indicated his income had decreased. There was conflicting evidence with the father’s testimony based upon deposits made into his checking account. There was some conflicting evidence, but the general magistrate fully credited the father’s explanation. Witness credibility, like all disputed issues of fact, is a determination left to the fact finder.
While based on his years of experience the trial judge may well have weighted the evidence differently, his role in reviewing the general magistrate’s report is strictly limited. Because the magistrate’s report and recommendations were supported by the father’s testimony, it met the competent substantial evidence standard. For these reasons they reversed and remanded for proceedings consistent with this opinion.