               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                              IN THE DISTRICT COURT OF APPEAL
                                              OF FLORIDA
                                              SECOND DISTRICT



DEPARTMENT OF REVENUE, on behalf              )
of DEBORAH LYNN SHIRER,                       )
                                              )
              Appellant,                      )
                                              )
v.                                            )          Case No. 2D15-1665
                                              )
CHRISTOPHER SHIRER,                           )
                                              )
              Appellee.                       )
                                              )

Opinion filed August 17, 2016.

Appeal from the Circuit Court for
Pasco County; Lynn Tepper, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and William H. Branch,
Assistant Attorney General, Tallahassee;
and Carrie R. McNair, Assistant Attorney
General, Tallahassee (substituted as
counsel of record), for Appellant.

No appearance by Appellee.


WALLACE, Judge.

              The Department of Revenue, on behalf of Deborah Lynn Shirer,

challenges a circuit court order denying its petition to establish child support for two

children against Christopher Shirer (the Father). Because the trial court failed to follow
the procedures established in section 61.30, Florida Statutes (2013), for determining the

guideline child support amount, we reverse.

                  I. THE FACTUAL AND PROCEDURAL BACKGROUND

              The children in this case, T.S. and K.S., were adjudicated dependent in

2012 following a hearing at which both parents were represented by counsel. A third

child was removed from the parents' custody in 2000. The original order of adjudication

of dependency required the parents to "pay child support to the custodians of the

children." In the final order of disposition, which accepted a case plan dated April 24,

2012, the trial court required the parents to "comply with any child support orders

entered by this or another court," and to "maintain lawful and stable income for a period

of at least six (6) months, or present proof of cooperation with applying for government

assistance for the children." However, the trial court also determined that both the

Mother and the Father were intellectually challenged, the Father having an IQ of 75 and

the Mother an IQ of 70. Accordingly, the trial court's order contained the following

provision: "The Court finds that due to the disability [sic] of the [M]other and [F]ather, the

parents do not have the ordinary capacity to pay child support. So long as the parents

cooperate with all applications for assistance from the government, the parents will be

deemed Case Plan Compliant." All three children were placed with their paternal

grandparents.

              In May 2014, the Department petitioned the trial court for orders of child

support and retroactive child support against the Father.1 The Department served a



              1
              Petitions for child support were filed against both parents. The order on
appeal pertains solely to the Father.

                                            -2-
request for admissions and a request for production of documents on the Father, but he

did not respond. In preparation for the hearing, the Department filed several child

support guidelines worksheets for 2014 based on differing scenarios. The scenario at

issue here was based on child support calculations provided by the Department for two

children. In the worksheet, the Department calculated the Father's monthly net income

to be $1413.94, with a resulting child support obligation for two children of $475 per

month.2 The Department also filed another worksheet for 2013 in support of its request

for retroactive child support.

               The trial court held a hearing on the Department's petition on January 20,

2014. The Father was notified of the hearing, but he did not appear. After the hearing,

the trial court denied the Department's petition. This appeal followed. The Father has

not filed a brief with this court.

                              II. THE STANDARD OF REVIEW

               Because of the trial court's prior order finding that the parents did not have

the ordinary capacity to pay child support, the Department's petition may be viewed as a

request for a modification of child support. We review a trial court's decision regarding

whether to modify child support for abuse of discretion. Seward v. Fla. Dep't of

Revenue ex rel. McClellan, 794 So. 2d 614, 615 (Fla. 2d DCA 2001). "A trial court is

authorized to modify child support when there has been a substantial change in the

parties' circumstances. That change must be significant, material, involuntary and


               2
               A deduction was allowed for "Smith" credit. Smith credit refers to credit
for the support of other children born prior to the children for which the support order is
being sought. See Dep't of Revenue ex rel. Marshall v. Smith, 716 So. 2d 333 (Fla. 2d
DCA 1998). At the time of the proceedings in the trial court, a fourth child was living
with the Father.

                                            -3-
permanent in nature," id. (quoting Fisher v. Fisher, 722 So. 2d 243, 245 (Fla. 2d DCA

1998)), and any resulting award "must be based upon competent, substantial evidence

of a party's net income," Hoffman v. Hoffman, 98 So. 3d 196, 197 (Fla. 2d DCA 2012).

However, where the issue relates to a trial court's application of the law, our review is de

novo. Finney v. Finney, 995 So. 2d 579, 581 (Fla. 1st DCA 2008) ("[A] trial court's

discretion concerning child support is subject to the statutory guidelines set forth in

section 61.30 . . . . Whether a trial court has complied with the guidelines is a question

of law to be reviewed de novo.").

                                     III. DISCUSSION

A. Introduction

              The trial court made two errors in its consideration of the Department's

petition. First, the trial court improperly considered one of the children's receipt of

Supplemental Security Income (SSI) in calculating the children's need for support.

Second, the trial court improperly ruled that its prior finding that the Father lacked "the

ordinary capacity" to pay child support as a result of his mental disability required the

denial of the Department's petition. We will discuss each of these errors separately

below. Then we will examine the evidence offered by the Department concerning the

Father's income and offer some guidance to the trial court and the parties on remand.

B. The Trial Court's Consideration of the Receipt of SSI Benefits by T.S.

              At the hearing, the trial court asked the Department's counsel whether the

SSI received by T.S. had been taken into account when calculating the guidelines

support figure. Counsel answered in the negative; he explained that it would be

improper to do so, citing Wallace v. Department of Revenue ex rel. Cutter, 774 So. 2d



                                            -4-
804, 806-07 (Fla. 2d DCA 2000) (explaining that section 61.30(11)(b), Florida Statutes

(1997),3 prohibited a court from adjusting a child support award based upon the child's

receipt of SSI). The trial court disagreed, finding that the SSI benefits received by the

child T.S. were "more than adequate . . . to support the needs of these children" and

that Mr. Shirer would owe no money "either retroactively or currently." Based on this

finding, the trial court ruled that it "would apply the [SSI] that is going to the caregiver.

While it is in the name of one child, it exceeds the needs under the guidelines that you

have filed for both." In the subsequent written order, the trial court again cited as a

reason for its denial of the Department's petition that "the child, T.S., receives $789.00

Social Security benefits based on his own disability. This exceeds the amount of

support that the Department proposes . . . ."

              Section 61.30(11)(a)(2) prohibits a court from reducing a parent's child

support obligation based upon a child's receipt of SSI. Wallace, 774 So. 2d at 807; Ford

v. Ford, 816 So. 2d 1193, 1197 (Fla. 4th DCA 2002) ("[I]ncome to the child in her own

right is intended to provide additional support due to the child's special needs and

should not serve as a basis to reduce the parents' obligation."). Accordingly, the trial

court erred in denying the petition based on a finding that the SSI benefits received by

T.S. "exceeds the amount of ongoing support the [D]epartment proposed to be paid by

the Father for both children" and that "[t]here is more than adequate income through the

federal Social Security benefits to support the needs of both minor children."

C. The Effect of the Father's Mental Disability on His Ability to Pay



              3
              This subsection currently appears at section 61.30(11)(a)(2), Florida
Statutes (2013).

                                             -5-
              At the hearing on the Department's petition, the trial court declined to

order the Father to pay child support either currently or retroactively. The trial court

ruled that because it had previously determined that the Father did not have "the

ordinary capacity" to pay child support because of his mental disability, the denial of the

Department's petition was required. On appeal, the Department argues that this ruling

was an abuse of the trial court's discretion because the trial court failed to make any

findings regarding the Father's current ability to maintain employment and to earn

income. We agree.

               Undoubtedly, the trial court could take into account its prior finding that

the Father lacked "the ordinary capacity" to pay child support because of his mental

disability as one factor among others in its consideration of the Department's petition.

But this prior finding did not compel the conclusion that the Father could not find gainful

employment and would never be required to pay child support. Indeed, the trial court's

prior order stated only that because the parents did not have "the ordinary capacity" to

pay child support, their failure to do so could not be used by the Department as

evidence of a failure to complete the case plan. It does not follow that if one or both of

the parents do earn income, that income cannot be considered in determining the ability

of the parent so employed to pay child support. Therefore, to the extent that the trial

court denied the Department's petition based solely on its earlier ruling about the

parents' ability to earn income, the trial court erred.

D. Some Guidance on Remand

              On its reconsideration of the Department's petition, the trial court must

follow the appropriate procedure for the determination of the parents' incomes. Section



                                             -6-
61.30(2) requires the trial court to determine the guideline child support figure by

determining each parent's gross monthly income, subtracting the allowable deductions

to achieve a net income, determining the child support need from the schedules, and

multiplying the minimum child support need by each parent's percentage share. In this

case, the trial court made no calculations or findings as called for by section 61.30(2).

Because the Father did not appear, the only figures in evidence were those supplied by

the Department. It is possible that the conclusions drawn by the Department from this

evidence contributed to the trial court's errors in resolving this matter.

              The Department argues here—as it did in the trial court—that its evidence

shows that the Father was earning $2178.37 per month gross ($1413.94 net).

According to the Department, the resulting child support guideline amount of $475 was

thus the "presumptively established" amount the trial court should have ordered as child

support. See § 61.30(1)(a). We disagree. The Department's calculation of these

figures was based on a faulty premise. The $2178.37 figure was derived from records

obtained from the Florida Department of Labor (the "Suntax wage information"). From

those records, the Department created a spreadsheet showing the Father's income from

2003, arranged by quarters. But the figures for many of the quarters are missing

entirely, indicating that the Father had no reported income during those quarters. In

fact, what the Department's spreadsheet shows is that the Father's history of earned

income is marked by significant gaps and is highly variable. And the $2178.37 gross

income figure that the Department suggests is evidence of the Father's income-

producing ability is based on income earned during three quarters of 2014 that the

Department added together and divided by twelve to produce a presumptive monthly



                                             -7-
income amount. But the Father's income in those three quarters of 2014, compared to

prior years, was clearly an anomaly. Indeed, when we average the Father's prior five

years of earnings taken from the spreadsheet, we calculate that his average monthly

gross income is approximately $622 per month.

              "Child support awards must be based upon competent, substantial

evidence of a party's net income." Hoffman, 98 So. 3d at 197. Here, the Department

relied on the Father's income earned in three quarters of 2014—a clear anomaly—to

establish his monthly income. The evidence provided by the Department suggests that

the Father's earnings history is sporadic at best. In addition, his monthly income has

been far less than the figure the Department suggests. In the absence of any other

evidence of the Father's ability to produce a similar level of income in the future, the

Department's evidence falls far short of competent, substantial evidence to establish

that the Father can earn gross income of $2178 per month. Therefore, it does not

follow that the evidence presented presumptively establishes the child support

guidelines amount at the figure suggested by the Department. Cf. Rudnick v. Harman,

162 So. 3d 116, 117 (Fla. 4th DCA 2014) (observing "that the extraordinary elevation in

Former Husband's 2012 income was not regular and continuous, but was instead due to

a specific non-recurring event"); Alich v. Clapp, 926 So. 2d 467, 468 (Fla. 4th DCA

2006) ("The trial court may only impute a level of income supported by the evidence of

employment potential and probable earnings based on history, qualifications, and

prevailing wages."); Lauro v. Lauro, 757 So. 2d 523, 526 (Fla. 4th DCA 2000) ("[T]here

was no evidence that the husband's income in 1997, which was substantially greater

than his average income for the preceding three years, would continue.").



                                            -8-
              Finally, to the extent that the Department may seek to impute income to

the Father on remand, the trial court should be mindful that the statutory scheme

established by the legislature allows the trial court to decline to impute income if a

parent's history of unemployment or underemployment is the result of "physical or

mental incapacity or other circumstances over which the parent has no control."

§ 61.30(2)(b). This may be such a case, although we express no opinion on the issue

of imputing income to the Father.

                                    IV. CONCLUSION

              We reverse the final judgment denying the Department's petition for

modification of child support and remand for further proceedings consistent with this

opinion. On remand, the trial court shall consider the requirements of section 61.30 in

determining whether the Department has established the Father's income and ability to

earn income by competent, substantial evidence. The SSI benefits received by the

child, T.S., may not be a factor in these determinations. The trial court may conduct an

additional hearing or hearings on remand. At any such hearing or hearings, the

Department may present additional evidence concerning the Father's income. Finally,

the Father must receive appropriate notice and an opportunity to be heard.

              Reversed and remanded for further proceedings consistent with this

opinion.



VILLANTI, C.J., and LUCAS, J., Concur.




                                            -9-
