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March 27, 2026 Get Citation Alerts Download PDF Add Note

Roby v. Roby

District Court of Appeal of Florida

• Citations: None known
• Docket Number: 2D2024-2223

• Disposition: Affirmed

• Opinion

• Authorities (11)

• Cited By (0)

• Summaries (0)

• Similar Cases (12.7K)

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Disposition

Affirmed

Combined Opinion

DISTRICT COURT OF APPEAL OF FLORIDA
SECOND DISTRICT

CADE STEVEN ROBY,

Appellant,

v.

JOELLA LYN ROBY,

Appellee.

No. 2D2024-2223

March 27, 2026

Appeal from the Circuit Court for Pasco County; Dustin Anderson,
Judge.

Dineen Pashoukos Wasylik of DPW Legal, Tampa, for Appellant.

Elizabeth D. Burchell of Busciglio Sheridan Schoeb, P.A., Tampa, for
Appellee.

BLACK, Judge.

Cade Steven Roby, the former husband, seeks review of the Final
Judgment on the Supplemental Petition and Counter-Supplemental
Petition and Order on Former Wife's Amended Motion for Contempt and
Enforcement. For the reasons explained below, we reverse in part and
affirm in part.
Prior to the entry of the final judgment of dissolution, the former
husband and Joella Lyn Roby, the former wife, executed a marital
settlement agreement (MSA) and an agreed parenting plan setting out
equal timesharing. The MSA included as a contingent asset the "existing
Florida Adoption Subsidy estimated to be 2500/mo x ~13 years" which
"shall be paid to [the former wife,] to pay and exceed the cost of the
identified child support indicated in form 902e for the entirety of the
payments." Based on equal timesharing, the MSA also provided that the
former husband would pay $1,348.29 in monthly child support for the
parties' three children, two of whom receive adoption subsidies, and that
the "estimated 2500/mo adoption subsity [sic] exceeds the 1348.29/mo
indicated payment. When subsity [sic] is finalized, [the former husband]
will will [sic] be liable for any shortage, but will not be [sic] benefit for any
excess."
The final judgment of dissolution was rendered March 11, 2022. In
that judgment, the court adopted the report and recommendation of the
general magistrate, as well as the parties' MSA and parenting plan. The
report and recommendation noted that the child support payable by the
former husband was a deviation from the guidelines based upon the
$2,500 per month adoption subsidy to be received by the former wife.
The report and recommendation cited Tluzek v. Tluzek, 179 So. 3d 455
(Fla. 5th DCA 2015), for the proposition that an adoption subsidy may
not be considered a credit against child support. The final judgment of
dissolution also included that the trial court maintains jurisdiction to
modify that portion of the agreement and any other issues while the
children are under the age of eighteen.
As relevant to this appeal, one year later, in March 2023, the
former husband filed a supplemental petition for modification of

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timesharing and related relief. In that petition, the former husband
asserted that the former wife "unilaterally ceased exercising her
timesharing with the youngest minor child B.W.R., thereby forcing [the
former husband] to maintain all responsibility for the minor child." The
former wife's decision was based on her inability to handle the child. The
former husband further asserted that the parties' incomes had changed,
warranting a recalculation of child support pursuant to section 61.30,
Florida Statutes (2022). The former husband also sought retroactive
child support modification based on the date the former wife ceased
exercising timesharing with the youngest child.
Also in March 2023, the former husband learned that the former
wife had received a lump sum adoption subsidy payment of $24,837.37
in October 2022. This was a retroactive payment for the enhanced
subsidy for the parties' child with special needs. The adoption subsidy
was otherwise $2,831.21 per month, an increase from what the parties
believed it would be. The former wife received the monthly subsidy.
In October 2023 the former husband filed a motion for temporary
and other relief, wherein he alleged that he had been exercising majority
timesharing with the children and sought recalculation of child support
based on both the timesharing actually occurring and the parties' change
in income. The former husband also recited that the former wife was
receiving the adoption subsidy and that caselaw required the subsidy to
follow timesharing percentages: "The parents' child support obligation
should be determined first. Then, the adoption subsidy should be
apportioned between the parents, consistent with their proportionate
amount of time-sharing and not credited or offset against the child
support award." Tluzek, 179 So. 3d at 457.

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One month later, the former husband filed an amended
supplemental petition for modification of timesharing and related relief.
He again requested child support recalculation and reallocation of the
subsidy.
A hearing on the amended supplemental petition was held in June
2024. The Final Judgment on the Supplemental Petition and Counter-
Supplemental Petition and Order on Former Wife's Amended Motion for
Contempt and Enforcement (supplemental final judgment) was rendered
July 29, 2024. Only that part of the supplemental final judgment
addressing the petition for modification of timesharing and related relief
is at issue. Pertinent to the challenges raised by the former husband,
the supplemental final judgment includes the finding that the former
husband exercised "almost 100% timesharing" with the youngest child
upon agreement of the parties. The supplemental final judgment also
provides that the former husband is responsible for prospective child
support in the amount of $887.87 per month. As to retroactive child
support, the supplemental final judgment includes that from the entry of
the final judgment of dissolution in March 2022 through December 2022
the former husband paid the former wife $300 per month in child
support, which was the difference between what he was required to pay
($1,348.29) and the adoption subsidy the former wife was receiving at
the time. From December 2023 forward, the former husband has paid
$1,348.29 per month in child support plus an arrearage amount.
The supplemental final judgment includes the court's finding that
the child support guidelines worksheet prepared by the court accurately
reflects that for a ten-month period beginning in December 2022, the
former husband had almost 100% timesharing of the youngest special-

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needs child. In total, the former husband owed $4,132.67 in retroactive
support payments.
The supplemental final judgment also includes that the former
husband was requesting reallocation of the adoption subsidy based upon
the ordered timesharing, relying on Tluzek. Because the law requires the
adoption subsidy to be allocated according to timesharing, the
supplemental final judgment directs that upon its entry and for every
payment thereafter the former wife is to convey one-half of every adoption
subsidy payment to the former husband.
In the supplemental final judgment, the court acknowledges that
the former husband was seeking reallocation of subsidy payments
received during the pendency of the litigation but determines that
because the former husband did not file a motion for relief from
judgment pursuant to Florida Family Law Rule of Procedure 12.540, it
would be "inequitable to impose a retroactive support obligation on the
former husband or to require the former wife to pay one half of the
adoption subsidy she has received thus far." The findings in the
supplemental final judgment include that the former wife received
$85,017.91 in adoption subsidy payments, which would have resulted in
$42,508.95 to each party had the subsidy followed the timesharing set
out in the final judgment of dissolution. The court's findings also include
that the former husband has paid $18,878.64 in child support. Based
on the timesharing that occurred and as explained in detail in the
supplemental final judgment, the former husband's actual retroactive
child support obligation is $4,132.67.
The trial court did not explain why it would be inequitable for the
former wife to repay $38,376.28 to the former husband. This is the
difference between one half of the subsidy payments received by the

5
former wife and the retroactive child support due from the former
husband. Nor did the trial court explain why it would be inequitable for
the former wife to repay $23,635.47 to the former husband, reflecting the
difference between one half of the subsidy payments received by the
former wife and the child support due from the former husband had
timesharing been equal. Notably, neither of these calculations take into
account the actual timesharing of the youngest special-needs child as it
affects the division of the subsidy payments received by the former wife.
On appeal, the former husband contends that the trial court
reversibly erred in failing to order retroactive modification of the adoption
subsidy paid to the former wife based on the actual timesharing for the
period for which the subsidy covered.1 The former husband contends
that "the trial court correctly reallocated the adoption subsidy on a
prospective basis but erred as a matter of law in failing to reallocate the
adoption subsidy retroactively based on actual time sharing" and that he
"did not waive the argument by pursuing it via supplemental petition
rather than a motion to set aside the judgment." We agree.
Section 409.166(1), Florida Statutes (2022), provides:
It is the intent of the Legislature to protect and promote each
child's right to the security and stability of a permanent
family home. The Legislature intends to make adoption
assistance, including financial aid, available to prospective
adoptive parents to enable them to adopt a child in the state's
foster care system who, because of his or her needs, has
proven difficult to place in an adoptive home.
The statute defines "Adoption assistance" as "financial assistance and
services provided to a child and his or her adoptive family," and it "may

1 The former husband filed a motion for rehearing raising this

issue.

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include a maintenance subsidy, medical assistance, Medicaid assistance,
and reimbursement of nonrecurring expenses associated with the legal
adoption," as well as "a tuition exemption at a postsecondary career
program, community college, or state university." § 409.166(2). The
statute also directs that the Department of Children and Families "shall
adopt rules to administer this section." § 409.166(8). One of those rules
addresses maintenance subsidies and provides that "[a] monthly
payment may be made for support and maintenance of a special needs
child until the child's 18th birthday." Fla. Admin. Code R. 65C-16.012(2)
(2022).
There are few cases discussing the adoption subsidy statute at
issue in this case. In Tluzek, the Fifth District Court of Appeal concluded
that it is the "special-needs children who . . . are the individuals who
should" benefit from the subsidy. 179 So. 3d at 457. The First District
Court of Appeal has similarly determined that the subsidy provides a
"benefit intended for the special needs child." Nabinger v. Nabinger, 82
So. 3d 1075, 1077 (Fla. 1st DCA 2011). The statutory language supports
these conclusions. And decisions of other states with similar subsidies
also conclude that the subsidy belongs to the child. See J.M. v. R.M., 52
Misc. 3d 1212(A) (N.Y. Fam. Ct. 2016) (concluding that adoption subsidy
was intended for adopted child and that adoptive mother was responsible
for retroactive support and arrears payable to adopted child); Hamblen v.
Hamblen, 54 P.3d 371, 374 (Ariz. Ct. App. 2002) ("[T]he subsidy belongs
to the child."); In re Marriage of Newberry, 805 N.E.2d 640, 643 (Ill. App.
Ct. 2004) (concluding that adoption subsidies are benefits belonging to
the children).
The trial court in this case found that the parties had not been
exercising equal timesharing of the youngest special-needs child. The

7
trial court also found that the former wife currently receives $2,865.74
per month in statutory subsidies, that the former wife received a lump
sum subsidy payment of $24,837.37, and that the former wife has kept
100% of the subsidy payments despite the final judgment of dissolution
setting forth equal timesharing and Florida law requiring the subsidy to
follow the timesharing. Relying on Tluzek, the trial court also found that
the subsidies are for the children, not the parents. Finally, the trial
court found that the dissolution final judgment contained a reservation
of jurisdiction to modify the timesharing and subsidy arrangements.
None of those findings are disputed on appeal.
The former husband's failure to file a rule 12.540 motion is not
determinative. The former husband is correct that it is the substance of
a motion rather than its title which determines how it is treated. See
Rossi v. Rossi, 169 So. 3d 1233, 1235 (Fla. 5th DCA 2015) ("Florida
courts will consider the motion's substance in determining whether the
motion was authorized." (citing IndyMac Fed. Bank FSB v. Hagan, 104
So. 3d 1232, 1236 (Fla. 3d DCA 2012))). But, perhaps more important in
this case, the final judgment on review is internally inconsistent: it both
amends the final judgment of dissolution prospectively based on the
former husband's arguments and denies retroactive amendment because
the former husband did not file a motion pursuant to rule 12.540. The
court's prospective amendment is not challenged on appeal as granting
relief not requested; yet the former wife contends that the court did not
err in denying retrospective relief where it was not properly requested.
The trial court effectively treated the petitions filed by the former
husband as requesting relief pursuant to rule 12.540 in order to have
prospectively amended the terms of the final judgment of dissolution,

8
finding the agreement that the former wife receive the total subsidy to be
against public policy.
Further, the court's reliance on the parties' MSA is not a basis
upon which it could deny relief. "Bad domestic bargains—meaning
unfair or unreasonable property and monetary settlement agreements—
are nevertheless enforceable so long as they are knowing, voluntary and
not otherwise against public policy." Williams v. Williams, 939 So. 2d
1154, 1157 (Fla. 2d DCA 2006) (emphasis added) (quoting Petracca v.
Petracca, 706 So. 2d 904, 911 (Fla. 4th DCA 1998)). Again, the final
judgment on review is inconsistent: it both recognizes the law that the
subsidy follows timesharing as the public policy of the state and denies
relief, finding that "this arrangement was something that both parties
bargained for." Cf. Griffin v. ARX Holding Corp., 208 So. 3d 164, 170 (Fla.
2d DCA 2016) (reiterating that if "enforcement of the contract would
violate the law or public policy irrespective of the conditions in which the
contract was formed" the contract is "void" (quoting Oubre v. Entergy
Operations, Inc., 522 U.S. 422, 431 (1998))).
If the parties had not divorced, the children would have received
the benefit of the parents' incomes plus 100% of the subsidy. See
Nabinger, 82 So. 3d at 1077 ("The supplemental nature of the subsidy is
apparent because '[h]ad the parties not separated, the child would have
enjoyed the benefit of both parents' incomes, as well as the subsidy.' "
(alteration in original) (quoting In re Marriage of Bolding-Roberts, 113
P.3d 1265, 1268 (Colo. App. 2005))). The trial court's refusal to
retroactively allocate the adoption subsidy is not equitable.
Accordingly, we reverse the supplemental final judgment insofar as
it addresses the adoption subsidy. We remand for the trial court to
calculate the total subsidy payments received by the former wife for each

9
child monthly and then to allocate the percentage of each subsidy to the
former husband and former wife based on the undisputed timesharing
previously found.
Affirmed in part; reversed in part; remanded.

KHOUZAM and ROTHSTEIN-YOUAKIM, JJ., Concur.

Opinion subject to revision prior to official publication.

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