          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-2771
                 _____________________________

PATRICK SMITH,

    Appellant,

    v.

CAITLYN SMITH, n/k/a Caitlin
Cleveland,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Nassau County.
Robert M. Foster, Judge.

                           June 7, 2019


PER CURIAM.

     Patrick Smith (the father) challenges an order requiring him
to pay nearly $40,000 in retroactive child support to Caitlyn
Cleveland (the mother). He also challenges the trial court’s related
attorney’s-fee order. We affirm.

                                 I.

     The parties married, had two children, and later divorced. The
consent final judgment of dissolution granted the mother majority
timesharing and set the father’s child support at $1100 per month.
This amount was a “substantial deviation” from the statutory
guidelines, with the judgment explaining “[s]aid deviation is
justified by the [father’s] payment for 100 percent of the
transportation costs for his visitation.” (The father lived in Florida;
the final judgment authorized the mother to move out of state,
where she had obtained employment.)

    In 2018, the mother filed a supplemental petition seeking a
timesharing modification and a retroactive child-support
adjustment. The petition alleged that the father failed to exercise
most of his timesharing and therefore never utilized the
transportation credit the final judgment anticipated. The father
counter-petitioned, seeking majority timesharing.

     While the petitions were pending, the mother filed a “Verified
Motion to Suspend [Father’s] Summer Timesharing Pending
Further Court Order and Request for Expedited Relief.” In the
motion, the mother sought to modify the summer timesharing and
to “establish a child support arrearage based on [the father’s]
credit for transportation for visitation he did not exercise.” The
court held an evidentiary hearing on the mother’s motion, during
which the father acknowledged he had exercised only a fraction of
his timesharing. Later in the hearing, the court said that some
“financial adjustment” needed to be made based on the father’s
lack of timesharing.

     The court entered an order on the mother’s motion. The court
found that, based on his lack of timesharing, the father had
underpaid his child support since the entry of the consent final
judgment. The court used the father’s then-current financial
affidavit to find that he had the ability to pay more child support.
The court looked to the child-support guidelines to determine the
amount the father would have paid had he not been given the
credit for transportation costs. The court then entered a $39,612.30
retroactive child-support award and ordered the father to pay that
over time. The court also ordered the father to pay $3000 in
attorney’s fees.

                                  II.

    The father now raises three issues. First, he argues that the
court did not have authority to enter the retroactive child-support
award because the court entered its order on the mother’s motion
rather than her supplemental petition. Second, he argues that the
court abused its discretion in entering the retroactive award. And
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third, he argues that the court abused its discretion by awarding
attorney’s fees.

                                  A.

     As to his first issue, the father correctly notes that the Florida
Family Law Rules of Procedure require that a request to modify a
final judgment be initiated through a supplemental petition rather
than a motion. See Fla. Fam. L. R. P. 12.110(h); see also Thomas v.
Harris, 634 So. 2d 1136, 1136-37 (Fla. 1st DCA 1994) (“A court
cannot modify a judgment unless the issue of modification is
properly presented to it by appropriate pleadings and each party
is given an opportunity to respond and a hearing had with the
necessary proof adduced.”). But here, the retroactive adjustment
was raised in the mother’s petition. The father was on notice that
the issue was before the court, and to the extent he now argues
that only the motion and not the petition was noticed for the
hearing, he has not preserved that argument for appeal. Cf. Bryan
v. Bryan, 765 So. 2d 829, 831 (Fla. 1st DCA 2000) (concluding that
issue not raised in petition was nonetheless tried by consent); Fla.
Fam. L. R. P. 12.190(b) (“When issues not raised by the pleadings
are tried by express or implied consent of the parties, they will be
treated in all respects as if they had been raised in the pleadings.”).

                                  B.

     The father’s second argument fails too. The court did not
abuse its discretion in establishing the retroactive award. Before a
court can modify child support, it must first find a substantial
change in the circumstances. See Van Looven v. Van Looven, 100
So. 3d 148, 149 (Fla. 1st DCA 2012). In this case, section 61.30,
Florida Statutes, supports the conclusion that there was a
substantial change in circumstances:

    A parent’s failure to regularly exercise the time-sharing
    schedule set forth in the parenting plan, a court-ordered
    time-sharing schedule, or a time-sharing arrangement
    exercised by agreement of the parties not caused by the
    other parent which resulted in the adjustment of the
    amount of child support pursuant to subparagraph (a)10
    or paragraph (b) shall be deemed a substantial change of


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    circumstances for purposes of modifying the child support
    award.

§ 61.30(11)(c), Fla. Stat. This section governs here. The final
judgment provided for a deviation from the guidelines pursuant to
subparagraph (a)10., and the court held that the father failed to
regularly exercise his child support. Thus, the court did not need
to make a further, explicit finding that there had been a
substantial change in circumstances.

     Next, the court needed to determine a starting date for the
retroactive child-support obligation. The father correctly notes
that modifications are generally retroactive to the date of the
supplemental petition. See Miles v. Champlin, 805 So. 2d 1085,
1087 (Fla. 1st DCA 2002). But section 61.30(11)(c) provides an
exception to that general rule, allowing retroactivity “to the date
the noncustodial parent first failed to regularly exercise the court-
ordered or agreed time-sharing schedule.” In this case, the court
determined that the father never regularly exercised his
timesharing. The parties’ testimony supported this determination.

     Finally, the court properly utilized the child-support
guidelines to calculate how much the father would have paid
without considering transportation costs. The court also found that
the father had the ability to pay that amount based on his current
financial affidavit. We find no abuse of discretion.

                                 C.

     Last, we affirm as to the attorney’s fees because the asserted
error was not raised through a rehearing motion. “[W]here an error
by the court appears for the first time on the face of a final order,
a party must alert the court of the error via a motion for rehearing
or some other appropriate motion in order to preserve it for
appeal.” Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA
2014).

    AFFIRMED.

ROBERTS, KELSEY, and WINSOR, JJ., concur.



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                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


John M. Merrett, Jacksonville, for Appellant.

Chanda L. Rogers of Faltemier Rogers, PLLC, Fernandina Beach,
for Appellee.




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