MELINDA KOKEN F/K/A MELINDA K. NEUBAUER, APPELLANT,
v.
JAMES NEUBAUER, APPELLEE
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In this post-divorce modification case, the Florida appellate court affirmed the trial court's changes to custody and visitation provisions and attorney's fees, but reversed the trial court's sua sponte modification of child support obligations during periods when the children resided with the father.
The court affirmed the modifications to custody and visitation provisions and the attorney's fees award, but reversed the modification of child support obligations because the trial court acted sua sponte without a proper motion before it to modify support.
[1] A trial court has discretion to modify custody provisions in a divorce decree.
[2] A trial court cannot sua sponte modify child support payments without a proper motion.
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Join FLexlaw to unlock all legal intelligence“although we might have reached a different conclusion, the record reflects that the trial court properly exercised its discretion by ordering these custody provisions, and we cannot on appeal substitute our judgment for that of the trial court”
Establishes the deferential standard of review for custody decisions and the trial court's broad discretion in family law matters.
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Join FLexlaw to unlock all legal intelligenceThe parties were divorced, and the husband (appellee) moved to modify the custody provisions of the divorce decree. The trial court granted extended c…
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KEHOE, Judge.
Appellant, petitioner/wife in the original dissolution of marriage proceedings below, brings this appeal from a post-decretal order entered by the trial court modifying visitation rights, support payments, and granting attorney’s fees. We affirm in part and reverse in part.
Appellee, respondent/husband below, moved to modify the custody provisions of the parties’ divorce decree. After a hearing the trial court entered an order providing, among other things, that appellee was to have custody of the children from December 15 to January 15, and that they were to live with him during their summer vacation, except for the first and last two weeks of the vacation. Further, the trial court relieved appellee of child support payments during the period the children were living with him.
In our opinion, although we might have reached a different conclusion, the record reflects that the trial court properly exercised its discretion by ordering these custody provisions, and we cannot on appeal substitute our judgment for that of the trial court. See, e. g., Dinkel v. Dinkel, 322 So. 2d 22 (Fla.1975); Grant v. Corbitt, 95 So. 2d 25 (Fla.1957); Baker v. Baker, 360 So. 2d 19 (Fla. 4th DCA 1978); and Scheiner v. Scheiner, 336 So. 2d 406 (Fla. 3d DCA 1976). However, in regard to the change in the child support provisions, the record reflects that the trial court acted without the benefit of a proper motion, etc., before it upon which to make this modification. The action was a sua sponte one by the trial court, and, in our opinion, improper. See, e. g., Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977); and Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974). Further, we see no error in the amount of the attorney’s fees awarded to appellant by the trial court. See, e. g., Cummings v. Cummings, 330 So. 2d 134 (Fla.1976); Campbell v. Campbell, 220 So. 2d 920 (Fla. 4th DCA 1969); and Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966).
For the reasons set forth above, the portions of the order appealed in regard to the change in child custody provisions and attorney’s fees are affirmed, and the portion of the order relieving appellee of child support payments while the children are in his custody is reversed.
Affirmed in part, and reversed in part.
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Citator
Cited By
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Barreiro v. Barreiro, 377 So. 2d 999 (Fla. 3d DCA 1979)…process rights, to hea.r and determine matters which were not the subject of appropriate pleadings or notice. Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Matthews v. Matthews, 376 So. 2d 484 (Fla. 3d DCA 1979), and cases cited; Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979), and cases cited. Accordingly, with the sole exception of paragraph 1, which dealt with the summer visitation issue, the order of July 25, 1979 under review is, in its entirety, Reversed.…
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Sweetland v. Gauntlett, 460 So. 2d 570 (Fla. 3d DCA 1984)…esting such modification. State, Department of Health & Rehabilitative Services v. Miller, 444 So. 2d 1157 (Fla. 2d DCA 1984); Parmer v. Parmer, 431 So. 2d 257 (Fla. 2d DCA 1983); Lentz v. Lentz, 414 So. 2d 292 (Fla. 2d DCA 1982); Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979); Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977). Reversed.…
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Jackson v. Powell, 546 So. 2d 1145 (Fla. 3d DCA 1989)…land, v. Gauntlett, 460 So. 2d 570 (Fla. 3d DCA 1984); Valdes v. Valdes, 460 So. 2d 569 (Fla. 3d DCA 1984). The trial court may not circumvent such required pleadings by ordering a child support modification on its own motion, see Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979), unless proper notice is given so that the opposing party has a fair opportunity to oppose the motion. Reversed.…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (11 total)
- Dinkel v. Dinkel, 322 So. 2d 22 (Fla. 1975)
- Cummings v. Cummings, 330 So. 2d 134 (Fla. 1976)
- Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)
- Beulah Grant v. Corbitt, 95 So. 2d 25 (Fla. 1957)
- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Scheiner v. Scheiner, 336 So. 2d 406 (Fla. 3d DCA 1976)
- Oncay v. Oncay, 183 So. 2d 878 (Fla. 3d DCA 1966)
- Gertrude B. Campbell v. Campbell, 220 So. 2d 920 (Fla. 4th DCA 1969)
- F & D Elec. Contractors, Inc. v. Miller & Solomon, Inc., 360 So. 2d 19 (Fla. 3d DCA 1978)