IN RE THE MARRIAGE OF LUZ JOSON PANGANIBAN, APPELLANT,
v.
LEO PANGANIBAN, APPELLEE
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Luz Panganiban appealed the trial court's denial of her contempt motion and nullification of alleged child support arrearages. The court affirmed, holding that while child support arrearages are generally vested rights not subject to modification, the trial court properly exercised its discretion in finding the custodial parent waived the arrearages through acquiescence and her initial contempt motion failed to assert the full claimed amount.
The trial court properly exercised its discretion in finding a waiver of the past due child support payments. While child support arrearages are normally vested rights of the child that courts cannot modify when past due, courts may refuse to enforce accrued support under equitable exceptions including laches, estoppel, waiver, reprehensible conduct, or other strong equitable reasons. Here, the custodial parent's acceptance of lower payments for years without complaint, combined with her failure to assert the full amount in her initial contempt motion, constituted a waiver.
[1] Child support arrearages are normally a vested right of the child that a court cannot modify when past due.
[2] A court may refuse to hold a party in contempt for failure to pay child support arrearages.
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Join FLexlaw to unlock all legal intelligence“Child support is normally the vested right of the child which the court has no power to modify when past due.”
Establishes the general rule protecting child support arrearages as vested rights that courts cannot modify
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Join FLexlaw to unlock all legal intelligenceA final judgment of dissolution required Leo Panganiban to pay $25.00 per week per child for four children ($100 per week total). He paid $400.00 per …
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RYDER, Judge.
Luz Panganiban appeals the order denying her motion for contempt for failure to pay child support, alleging that the court had no authority to therein declare child support arrearages to be null and void. We affirm.
The final judgment of dissolution below provided for the payment of child support in the amount of $25.00 per week per child for four children. Appellee paid $400.00 per month thereafter as child support. In November 1979, two years after final judgment, appellant moved for an order of contempt, alleging an arrearage of $300.00. The trial court found an arrearage of $150.00 and ordered appellee on January 30, 1980 to pay that amount in addition to regular support payments.
In February of 1980, appellant moved for an order correcting the prior order, alleging that it did not take into account that there are 4ys weeks in a month rather than four. Appellant requested an award of $990.00, representing a shortage for the entire period since final judgment. The court denied the motion for contempt, found the lower payments to be a mistake to which appellant waived any remedy by acquiescence, and nullified the arrearage.
Child support is normally the vested right of the child which the court has no power to modify when past due. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Petrucci v. Petrucci, 252 So. 2d 867 (Fla.3d DCA 1971). The court may refuse to hold a party in contempt for failure to pay an arrearage, but may entirely refuse to enforce payment of past due child support only under certain exceptions. See Smithwick v. Smithwick, 343 So. 2d 945 (Fla.3d DCA 1977). Those exceptions are in the nature of laches, estoppel, waiver, reprehensible conduct upon the part of the parent having custody or other strong equitable reasons. See Teta v. Teta, 297 So. 2d 642 (Fla.1st DCA 1974); Brown v. Brown, 108 So. 2d 492 (Fla.2d DCA 1959).
The classic example of this power to refuse to enforce accrued child support is when the custodial parent has refused to comply with the visitation provisions of the court order. See Warrick v. Hender, 198 So. 2d 348 (Fla.4th DCA 1967); Denton v. Denton, 147 So. 2d 545 (Fla.2d DCA 1962). While appellant’s conduct does not approach the reprehensible nature of refusal of visitation, we hold that the trial court acted within its discretion in finding a waiver of the past due payments. Appellant previously moved for contempt, alleging an amount due, and made no suggestion of the arrearage now claimed. The acceptance of a lower payment over a period of years without complaint adds further support to the trial court’s finding of a waiver of the amount in dispute. We thus hold that no error appears in the order below.
AFFIRMED.
SCHEB, C. J., and CAMPBELL, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
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O'Brien v. O'Brien, 424 So. 2d 970 (Fla. 3d DCA 1983)…4th DCA 1971). Claims for child support arrearages are generally enforceable, absent extraordinary or compelling circumstances, such as waiver, laches, estoppel or reprehensible conduct on the part of the custodial parent. Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1977); see Armour; Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974); Brown v. Brown, 108 So. 2d 492 (Fla. 2d DCA 1959). We find no evidence that the wife violated any order requiring visitation. Panganiban; Denton v. Denton, 147 So. 2d…
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Sherl Lanette Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984)…ayed at his home and in allowing him a correspondent setoff. Past due child support payments constitute vested property rights which are not subject to modification. Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981); Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980); Patterson v. Patterson, 348 So. 2d 592 (Fla. 1st DCA 1977); Petrucci v. Petrucci, 252 So. 2d 867 (Fla. 3d DCA 1971). Hence, absent compelling circumstances or a valid defense,…
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Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987)…A 1987); Brock v. Hudson, 494 So. 2d 285 (Fla. 1st DCA 1986); Wing v. Wing, 464 So. 2d 1342 (Fla. 1st DCA 1985); Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979); Smalbein v. Smalbein, 487 So. 2d 421 (Fla. 5th DCA 1986); Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981). Therefore, absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct on the part of the custodial parent, “the court has no power, ... to cancel or retrospectively reduce the decr…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pottinger v. Pottinger, 133 Fla. 442 (Fla. 1938)
- Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)
- Joan Claire Hender Warrick (formerly known as Joan Claire Hender) v. Hender, 198 So. 2d 348 (Fla. 4th DCA 1967)
- 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)
- Brown v. Brown, 108 So. 2d 492 (Fla. 2d DCA 1959)
- Ross v. State, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Emilie S. Petrucci v. Petrucci, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Widener v. Kellenberger, 147 So. 2d 545 (Fla. 2d DCA 1962)
- Darrel W. Denton v. Denton, 147 So. 2d 545 (Fla. 2d DCA 1962)