          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D18-915
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JENNIFER TISDALE, Former Wife,

    Appellant,

    v.

STEPHEN TISDALE, Former
Husband,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Escambia County.
Darlene F. Dickey, Judge.

                        February 15, 2019


JAY, J.

     Jennifer Tisdale, the former wife, seeks reversal of portions of
the trial court’s “Order on Former Husband’s Amended Verified
Petition for Modification of Child Support and the Former Wife’s
Counter-Petition for Modification of Child Support.” ∗ For the



    ∗
      “[O]rders entered in modification proceedings have all of the
aspects of final judgments” and, therefore, are “appealable as
plenary appeals.” Roshkind v. Roshkind, 717 So. 2d 544, 544-45
(Fla. 4th DCA 1997); accord Bucsit v. Bucsit, 229 So. 3d 430, 431
n.1 (Fla. 1st DCA 2017).
reasons that follow, we reverse on Points I and III, but affirm Point
II without further discussion.

                                  I

     On September 1, 2015, the parties entered into a marital
settlement agreement (“MSA”). Under the terms of the MSA, it
was agreed that Stephen Tisdale, former husband, was to pay
$6500 per month in child support to the former wife, as calculated
under the Child Support Guidelines. The guidelines worksheet
was attached to the MSA. It attributed to the former husband a
monthly gross income of $68,000, equating to an annual salary of
$816,000, not including additional annual income the former
husband received from his other business interests. The worksheet
attributed zero income to the former wife. Due to the former wife’s
lack of income, the $1200 in monthly private school tuition the
former wife would have been obligated to pay under the MSA was
also included in the worksheet and applied to the former husband’s
support obligation on a dollar per dollar basis. Later, at the former
wife’s entreaty, the former husband agreed to execute an
addendum to the MSA whereby the children would attend public
school and the former husband’s child support obligation would
commensurately be reduced by $1200, to $5300 per month. The
addendum was executed on July 1, 2016.

     For reasons not made known in the record, the Final
Judgment of Dissolution of Marriage was not entered until August
26, 2016, nearly a year after the MSA. Nonetheless, it incorporated
both the MSA and the addendum.

     Three months later, on November 29, 2016, the former
husband filed his Verified Petition for Modification of Child
Support. In it, he asserted that his income had precipitously
plunged since his child support obligation had been agreed upon
by the parties in September 2015. He later filed an amended
petition in May 2017. In turn, the former wife filed her Counter-
Petition for Modification of Child Support in July, in which she
alleged that the former husband’s income had, in fact,
dramatically increased in the eight months since he first filed his
petition for modification.



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     It was revealed at the ensuing hearing that at the time the
parties executed the MSA in September 2015, the former
husband’s gross annual income—made up of commission
payments from his employment and profits from his other
businesses—topped one million dollars; $1,009,556.79 to be exact.
But 2016 proved to be a bad year for the construction industry.
Because the former husband’s employment—from which he
received his commissions—was directly related to the construction
trade, his 2016 commission income was likewise impacted,
dwindling to $464,448.78. His total annual income for 2016, which
included the profits from his other businesses, amounted to only
$677,266.

     Both parties acknowledged that because the former husband’s
“salary” from his regular employment was entirely commission-
based, it would ebb and flow from month to month, and from year
to year. Thus, by May 2017, the former husband’s income showed
a marked recovery, with projected year-end earnings just short of
a million dollars. Yet, for purposes of establishing his claim for a
retroactive reduction in child support, the former husband
calculated his monthly income from the date he filed his petition
in November 2016 until May 2017, using both his commissions and
his other sources of income to arrive at the “reduced” monthly
income of $29,377.02 during the applicable time frame.

     Worthy of note is the former wife’s testimony that, on
September 1, 2016, when the former husband presented her with
the first installment of the lump sum payment upon which they
had agreed in the MSA, he advised her to “be thrifty” because he
planned to take her back to court “to lower his child support.” For
his part, the former husband acknowledged he had told the former
wife his commission checks would not keep coming in and she
would be wise to curtail her spending. Specifically, he stressed, “I
can’t continue to pay at a million dollar mark when you’re not
making the million dollars.”

     The former wife testified she had recently graduated from dog
grooming school and was hoping to open her own business. She
explained that she chose that vocation because it would enable her
to create her own schedule in order to accommodate the needs of
one of the parties’ minor sons who was being treated for severe

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anxiety and ADHD. The former wife agreed with former husband’s
counsel that it would be “a fair thing to say that [she] could earn
$10 an hour doing that type of work.” At that amount, the former
wife also agreed she could earn a minimum of $1300 per month,
working six hours a day, five days a week, in order to be with her
special-needs child when the school day ended.

     Following the hearing, in its final order on the parties’
respective petitions, the trial court referenced the former
husband’s testimony that his income had decreased since the entry
of the MSA and the August 26, 2016 Final Judgment of Dissolution
of Marriage. But it went on to reference his additional testimony
that he “knew the decreases were coming . . . and told the Former
Wife that she needed to be careful with her spending due to his
decreasing income, and he warned her that he may need to ask for
modification.” The court found that “[t]he Former Husband said
this was not meant as a threat, and he told her this as a courtesy.”
The court acknowledged the former wife’s testimony that the
former husband had told her on September 1—a week after the
August 2016 final judgment—that he was taking her back to court,
and encapsulated the former wife’s testimony that she had never
been privy to the parties’ accounts during the marriage—as the
former husband had controlled the finances and the bills—and was
unaware that the former husband was making a million dollars a
year.

    The trial court next discussed the structure of the former
husband’s salary as being 100% commission-based and that his
earnings were expected to fluctuate. It then found:

    The Former Husband’s explanation for telling the Former
    Wife on September 1, 2016 that he planned to take her
    back to Court for modification was that he was seeing and
    experiencing a decrease in his income immediately (5
    days) after the final judgment was entered. However, his
    testimony was that his income started decreasing in 2015
    and continued throughout 2016.

         The Former Husband was aware the company’s
    business transactions were declining over a period of time
    after the MSA was signed and before the Final Judgment
    was entered. Accepting the Former Husband’s testimony
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    regarding his decline in income as well as the Former
    Wife’s testimony that their conversation occurred on
    September 1, 2016 supports the Court’s conclusion that
    the Husband knew about his decreasing income before the
    Final Judgment on August 26, 2016.

(Emphasis added.)

     Significantly, the trial court stated it had considered “the line
of cases” argued at the hearing by the former husband’s attorney,
which stood for the proposition—as noted by the court—that “a one
year period of time of decreased income” meets the requirement of
a permanent change. But in the next breath, the trial court found
that “[t]he Former Husband did not experience a full year of
substantially lowered income.” However, later in its order, after
acknowledging that the former husband’s income “is back to the
level it was prior to the Final Judgment,” the trial court declared:

    The Former Husband argues that the substantial change
    in income between the Final Judgment and June 2017
    warrants a retroactive decrease in child support for the
    six months from filing the petition for modification
    through June 2017, notwithstanding the lack of a
    permanent change in income. The Court finds this is
    appropriate and will grant the decrease in child support
    from November 29, 2016 to May 31, 2017. The Husband
    shall receive credit for the overpayment made during this
    six month period.

(Emphasis added.)

     Accordingly, the trial court granted the former husband’s
Amended Verified Petition for Modification of Child Support to the
extent that his child support obligation “between November 29,
2016 and May 31, 2017 is decreased from the $5,300 in the Final
Judgment to $3,372 (Exhibit 1) leaving him with an over-payment
of $11,568.00 for this period.” In line with the former husband’s
suggestion during the hearing, the trial court ordered that he “pay
a reasonable amount of the Former Wife’s attorney’s fees and
costs,” which amount would be credited by the over-payment of
child support in the amount of $11,568.00.


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     Addressing the former wife’s counter-petition, the trial court
concluded that she had the ability to work full-time. It therefore
imputed minimum wage earnings as income to her for the purpose
of recalculating the former husband’s child support obligation. It
then granted her petition by prospectively increasing child support
based on the guidelines worksheet, which reflected the increase in
the former husband’s current earnings and the imputation of
income to the former wife, amounting to $1440. The court found
those factors altered the former husband’s child support obligation
by increasing it to $5,347 per month for both children, and $3,512
when the oldest child was no longer eligible for child support. For
purposes of calculating the current child support on the guidelines
worksheet, the trial court considered the former husband’s reduced
health and dental care premiums for the children, which totaled
$346. However, the guidelines worksheet attached to the final
order actually utilized the higher health and dental premium costs
of $440, an amount both parties agreed the former husband was
no longer obligated to pay.

                                 II

     On appeal, the former wife’s principal argument is that the
trial court erred by granting the former husband’s petition and
retroactively modifying his child support obligation from the date
he filed his petition in November 2016 until June 2017. She asserts
that the “change in circumstances” regarding the former husband’s
salary was neither unanticipated nor permanent.

     In Wood v. Wood, 162 So. 3d 133 (Fla. 1st DCA 2014), we
reiterated the standard applicable to a petition for modification of
child support:

    “A party moving for modification of child support has the
    burden of proving the following factors: (1) a substantial
    change in circumstances; (2) the change was not
    contemplated at the time of the final judgment of
    dissolution; and (3) the change is sufficient, material,
    involuntary, and permanent in nature. Maher v. Maher,
    96 So. 3d 1022, 1022 (Fla. 4th DCA 2012). ‘When the
    original child support amount is based on an agreement
    by the parties, as here, there is a heavier burden on the
    party seeking a downward modification.’ Id.”
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Id. at 135 (quoting Kozell v. Kozell, 142 So. 3d 891, 894 (Fla. 4th
DCA 2014)); see generally Pimm v. Pimm, 601 So. 2d 534, 536 (Fla.
1992)). We review a trial court’s decision to modify child support
for an abuse of discretion. Id. Under the singular circumstances of
the instant case, we find the trial court abused its discretion.

     Initially, we disagree with the former husband’s view that the
facts of the present case established the change in his income was
permanent. While the cases on which he primarily relies—Dogoda
v. Dogoda, 233 So. 3d 484 (Fla. 2d DCA 2017), and Freeman v.
Freeman, 615 So. 2d 225 (Fla. 5th DCA 1993)—could, when read
together, support the idea that “permanent” may in some factual
contexts be interpreted to mean one year or more, if one begins
counting from the date the parties executed the MSA, we find that
this case does not fit within that factual framework.

     The former wife rightly points out that certain of the trial
court’s findings wholly contradict the former husband’s argument,
as well as its conclusion that the former husband proved his case
for retroactive modification. First, in its final order, the trial court
expressly found that although it had considered the case law we
have just cited, the former husband “did not experience a full year
of substantially lowered income.” Second, the trial court chose the
date of the final dissolution judgment—instead of the date the
parties executed the MSA—in determining the length of the
changed circumstances, thereby implicitly rejecting the former
husband’s position advanced below. Furthermore, the trial court
found that the former husband’s testimony revealed that his
income started decreasing in 2015 and continued throughout 2016,
and that he “knew about his decreasing income before the Final
Judgment on August 26, 2016.”

     We conclude that those findings are irreconcilable with the
standards for supporting a downward modification of child support
through proof of an unanticipated, and permanent change in
circumstances. Thus, we hold the trial court abused its discretion
in granting the former husband’s petition for a retroactive
modification.

    As the former wife also argues, the trial court additionally
erred in utilizing the incorrect sum of combined health and dental
premiums the former husband was then currently paying in
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calculating his child support obligation in line with the former
wife’s counter-petition for modification. During the former
husband’s testimony, he agreed that his combined health and
dental insurance premiums for coverage of the minor children
decreased from $440 per month to $307.75 per month.
Nevertheless, the trial court used the higher monthly amount of
$440 on the guidelines worksheet in computing the new child
support obligation. The former husband essentially concedes this
error in his Answer Brief, but seeks to justify the difference under
section 61.30, Florida Statutes. We hold, however, that the five
percent variance permitted by section 61.30 is inapplicable in this
instance, since there was nothing in the record that even hints at
any intent on the trial court’s part to utilize the greater amount so
as “to order payment of child support in an amount which varies
more than 5 percent from such guideline amount . . . .” §
61.30(1)(a), Fla. Stat. Accordingly, on remand, the trial court is
instructed to recalculate child support using the lower premium
amount as reflected in the parties’ testimony.

                                 III

    To summarize, we reverse the final order to the extent it
grants a retroactive modification of the former husband’s child
support obligation and utilizes the incorrect sum of insurance
premiums in calculating child support under the guidelines. In all
other respects, the final order is affirmed.

     AFFIRMED, in part, REVERSED, in part, and REMANDED for
further proceedings consistent with this opinion.

RAY and KELSEY, JJ., concur.

                  _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Ross A. Keene of Ross Keene Law, P.A., Pensacola, for Appellant.

Travis R. Johnson of Meador & Johnson, P.A., Pensacola, for
Appellee.




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