Recently, Florida's Second District Court of Appeal, in Polytimi Emmenegger v. Andre Emmenegger, discussed the issue of child support modification and substantial timesharing. In the initial divorce action between the parties in this case, the parties agreed that despite the amount of timesharing the Husband had with the children, he would not receive the benefit of the substantial timesharing child support calculation, which at that time required 40% of overnights, despite being entitled to 156 overnights per year. The child support was subsequently modified in 2007, and again the then Former Husband did not receive the benefit of having substantial timesharing, which now required only 20% of overnights. In 2012, during a post-judgment child support modification action, the trial court allowed the Former Husband to receive the benefit of substantial timesharing in his child support calculation over the Former Wife’s objection. The issue on appeal was whether the Former Husband expressly waived his right to the statutory reduction of child support based on substantial timesharing. This was given de novo review, as it is a contract interpretation issue. The appellate court held that the Former Husband did expressly waive this right when he initially agreed that his child support would be calculated as if he did not receive 40% of the overnights, and reversed the order, remanding for calculation without using the substantial timesharing provision.
By Robert Sparks Attorneys