In a divorce modification proceeding, where the parties have previously agreed that a party will not take credit for substantial time-sharing, the Court should not award a substantial time-sharing credit absent some substantial change in circumstances (like a reduction in income) that would justify overlooking the earlier waiver. In Emmenegger v. Emmenegger the Florida Court of Appeal recently stated that: “The provision at issue in the 2005 agreement specifically states that ‘[t]he parties[‘] visitation arrangements outlined herein will not be considered as the [f]ather[‘s] having 40% of time with the children.’ It is clear from the wording of the provision and the other provisions in the agreement relating to child support and visitation that the parties intended for the father’s visitation schedule to have no effect on the father’s child support obligations.
Specifically, the parties intended that the father would pay a specific amount of child support, that the father would receive 40% of the overnights with the children, and that the father would not receive the adjustment in his child support obligation that he would otherwise legally be entitled to under section 61.30(11)(b). The goal to be accomplished by the agreement was that the father would provide a particular amount of support for his children without consideration of his substantial time-sharing.
Because the provision in the 2005 agreement clearly indicates the parties’ intention to not give the father a statutory adjustment in his child support based on his substantial time-sharing, the trial court erred in applying the adjustment in section 61.30(11)(b), absent some substantial change in circumstances that would justify overlooking the father’s earlier waiver of his right to that statutory reduction…cf. Seiberlich v. Wolf, 859 So. 2d 570 (Fla. ( 5th DCA 2003) (holding that in modification proceeding, trial court should have adjusted child support based on substantial time-sharing even though the father had earlier agreed to pay child support without such an adjustment; trial court found that circumstances had changed based on father’s reduction in income). The father sought the instant reduction in child support based on the parties’ oldest child’s reaching majority age and no other factual change in circumstances. He did not seek the reduction in child support based on any reduction in his income; in fact, the father’s income had increased since his child support had been reduced in 2007…[T]he cases holding that the adjustment is mandatory do not involve a parent who expressly agreed to waive the right to have his child support adjusted. Cf, e.g., Migliore, 848 So. 2d 1250.”
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