                                       IN THE DISTRICT COURT OF APPEAL
                                       FIRST DISTRICT, STATE OF FLORIDA

TED K. BROWN, FORMER                   NOT FINAL UNTIL TIME EXPIRES TO
HUSBAND,                               FILE MOTION FOR REHEARING AND
                                       DISPOSITION THEREOF IF FILED
      Appellant,
                                       CASE NO. 1D14-4317
v.

VALERIE HAYS BROWN,
FORMER WIFE,

      Appellee.


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Opinion filed November 23, 2015.

An appeal from the Circuit Court for Duval County.
Elizabeth A. Senterfitt, Judge.

William S. Graessle and Jonathan Graessle of William S. Graessle, P.A.,
Jacksonville for Appellant.

Jeanine B. Sasser of Jeanine B. Sasser, P.A., Jacksonville for Appellee.



PER CURIAM.

      Ted K. Brown appeals an order substantially denying his supplemental

petition to modify time sharing, parental responsibility, and child support. He asks,

among other things, that we reverse and remand for a new hearing, with instructions

permitting more discovery; for hearings on various contempt motions he filed based
on alleged violations of a 2011 order; and for recalculation of the trial court’s child

support-related orders. We affirm in part and reverse in part. The trial court did not

abuse its discretion in concluding that Mr. Brown failed to demonstrate a substantial,

material, and unanticipated change of circumstances as would warrant modification

of the existing parenting plan. We reverse, however, insofar as the trial court made

four modifications to the parenting plan in the absence of changed circumstances.

We also reverse and remand for reconsideration of Mr. Brown’s petition to modify

child support, including the related final judgment of indirect civil contempt and

order of enforcement, because the order’s income calculations are not supported by

the record.

                                     Background

      Mr. Brown and his former wife Valerie Hays Brown were divorced in 2005.

In 2011, the trial court modified their parenting plan and addressed child support for

the benefit of their daughter. Among other things, the modified parenting plan gave

sole responsibility to Ms. Brown for major decisions affecting the Browns’ daughter;

ordered the daughter to undergo counseling; increased Mr. Brown’s visitation to four

overnights; and required the parents to attend separate school events so that they

would not be present at the same school event at the same time.

      Just a few months later, in May 2011, Mr. Brown filed a petition to amend the

modified parenting plan, which he followed with a petition for a downward

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modification of his child support obligation. In 2013, Mr. Brown amended and

consolidated his parenting plan and child support modification petitions. In June

2014, the trial court held a hearing on Mr. Brown’s petitions, and entered an order

mostly denying him relief. Mr. Brown then appealed.

                        Modification of the Parenting Plan

      This Court reviews a trial court’s decision on whether to modify a parenting

plan under an abuse of discretion standard. Wade v. Hirschman, 903 So. 2d 928, 935

(Fla. 2005). This Court has repeatedly held that the modification of a parenting plan

requires a substantial, material, and unanticipated change in circumstances and must

be in the best interests of the child. Sidman v. Marino, 46 So. 3d 1136, 1137 (Fla.

1st DCA 2010). The demonstration of a change in circumstances is a prerequisite to

considering the best interests of the child under section 61.13(2)(c), Florida

Statutes. Mesibov v. Mesibov, 16 So. 3d 890, 892 (Fla. 5th DCA 2009); Ogilvie v.

Ogilvie, 954 So. 2d 698, 700 n.2 (Fla. 1st DCA 2007).

      Mr. Brown’s primary contention in support of modifying the parenting plan

is that the trial court abused its discretion by excluding a two-and-a-half year-old

report filed with the court by the child’s former psychotherapist. The trial court

decided to exclude the report under section 90.503(2), Florida Statutes, because a

privilege attaches to a patient-psychotherapist relationship. Although Mr. Brown

contends that the daughter’s attorney ad litem waived the privilege, the record shows

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that the attorney ad litem merely made a statement to the trial court that she

“believed” the privilege had been waived during a deposition, not that she had

waived it. In fact, neither parent could have waived the psychotherapist privilege,

because the subject matter of the litigation was the child’s welfare. Hughes v.

Schatzberg, 872 So. 2d 996, 997 (Fla. 4th DCA 2004). And there was no evidence

that someone else with authority had waived the privilege. Rather, a court order from

April 2012, put the parties on notice that the Browns’ daughter’s therapy would be

off-limits in the litigation by requiring that the psychotherapist assure the daughter

that her therapy was “solely for her, not to be used by the Court or either of the

parents.”

      In addition to the psychotherapist’s privilege, the trial court also decided to

exclude the former psychotherapist’s report because it lacked relevance. The report

was two-and-a-half years old by the time of the trial. And the Browns’ daughter had

long since switched psychotherapists and had become a teenager. Under these

circumstances, we cannot conclude that the trial court’s decision to exclude the

report was arbitrary or unreasonable. See Canakaris v. Canakaris, 382 So. 2d 1197,

1203 (Fla. 1980).

      While Mr. Brown failed to demonstrate a sufficient change in circumstances

to warrant modification of the parenting plan, we agree with his argument that the

order below should not have modified the parenting plan. The order revised the plan

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in four respects: (1) by allowing both parents to attend all of the daughter’s school

events; (2) by allowing the daughter to choose whether to go to counseling or not;

(3) by providing the daughter with unmonitored access to the iPhone which Ms.

Brown gave her; and (4) by ordering specific sleeping arrangements in Mr. Brown’s

house. Modifications to a parenting plan require a prerequisite substantial, material,

and unanticipated change in the circumstances. See § 61.13(2)(c), Fla. Stat.

Although it appears the trial court made these modifications in an effort to equitably

resolve the extensive litigation between the parties, the law requires a threshold

change in circumstances before modifying a parenting plan. See Ogilvie, 954 So. 2d

at 700 n.2 (Fla. 1st DCA 2007). For this reason, we reverse in part and remand for

the trial court to strike these four modifications. 1

                            Modification of Child Support

      We next turn to the trial court’s consideration of the petition to modify child

support. A trial court’s denial of a petition to modify child support is also reviewed

for abuse of discretion. Fredman v. Fredman, 917 So. 2d 1038, 1042 (Fla. 2d DCA

2006). “In most instances, ‘a fundamental prerequisite to bringing an action to

modify child support payments is a showing of substantial change of


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  We affirm, however, the trial court’s fifth modification turning responsibility for
the daughter’s annual physical examination over to Ms. Brown. Mr. Brown
specifically requested it in his petition. And having received the relief his petition
requested, he cannot rightfully challenge it now on appeal. See Anderson v. State,
93 So. 3d 1201, 1206 (Fla. 1st DCA 2012).
                                           5
circumstances.’” Shaw v. Nelson, 4 So. 3d 740, 742 (Fla. 1st DCA 2009)

(citing Overbey v. Overbey, 698 So. 2d 811, 813 (Fla. 1997)). Under the statute, this

means that Mr. Brown would have to show a difference between his existing

monthly obligation and the amount provided under the guidelines of at least 15%.

§ 61.30(1)(b), Fla. Stat.

      In declining to modify the child support arrangement in this case, the trial

court found that Mr. Brown’s income is about $79,000 per year and that Mrs.

Brown’s income is about $57,000 per year, which did not generate the required

difference under the guidelines. The record, however, does not support the income

figures used by the trial court. With respect to Mr. Brown’s income calculation, from

his close to $116,000 gross income in 2012, the trial court subtracted half of all of

his claimed business expenses across-the-board without specifically considering

them. Evidently, the court extrapolated from the testimony of Mr. Brown’s

bookkeeper, who testified that she considered some of Mr. Brown’s expenses half

personal and half business. For example, because Mr. Brown resided in and operated

his solo legal practice from the same location, his bookkeeper routinely considered

his grocery and big-box store receipts to be half personal and half business expenses.

But Mr. Brown and his bookkeeper testified that other expenses were straight

business expenses, or “ordinary and necessary expenses required to produce

income.” § 61.30(2)(a)(3), Fla. Stat.; Burgess v. Burgess, 871 So. 2d 919, 921 (Fla.

                                          6
3d DCA 2004). Income used for business purposes is not considered income for

purposes of chapter 61. See Zold v. Zold, 911 So. 2d 1222, 1231-32 (Fla. 2005). In

operating his law practice, for example, the salary Mr. Brown paid to his paralegal,

his payments to a part-time attorney, court costs, and health insurance appear to

qualify as expenses that should have been fully deducted from Mr. Brown’s income

for purposes of chapter 61. And because the trial court’s across-the-board treatment

of Mr. Brown’s expenses included cutting in half both pure business expenses and

part-business/part-personal expenses alike, its calculation methodology fell short

under the statute.

      Additionally, the order established Ms. Brown’s income at a lower level than

supported by the evidence. The court set her income at $57,000 based on a W2 from

her primary job in 2009. But Ms. Brown testified that her $57,000 salary provided a

baseline income that she regularly supplemented by working additional jobs

whenever possible. And she reported an annual income north of $80,000, for 2009,

2010, and 2012 (2011 was not addressed at the hearing), including $99,000 in 2012,

the year the trial court used in calculating Mr. Brown’s income. The order provides

no rationale for disregarding Ms. Brown’s secondary income from the child support

calculation. See § 61.30(2), Fla. Stat. (establishing the amount of support based upon

the parents’ income). For this reason too, we cannot conclude that competent,




                                          7
substantial evidence supports the child support-related portion of the order entered

below.

                                     Conclusion

      For these reasons, we affirm in part and reverse in part the trial court’s July

14, 2014, order on the former husband’s Supplemental Petition for Modification of

Parenting Plan and Other Pending Issues. Because no substantial, material, and

unanticipated change of circumstances warranted a modification of the existing

parenting plan, we remand with directions for the trial court to strike the four

parenting plan modifications identified above in this opinion. We also reverse the

order on the child support modification issue, including the simultaneously entered

Final Judgment of Indirect Civil Contempt and Order of Enforcement, and remand

for additional consideration of Mr. Brown’s child support modification request

consistent with this opinion. We affirm the order in all other respects.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH

INSTRUCTIONS.



BENTON, OSTERHAUS, and BILBREY, JJ., CONCUR




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