MARY MANNING, F/K/A MARY VARGES, APPELLANT,
v.
RICHARD VARGES, APPELLEE

Fla. 2d DCA | 1982-04-23
No. 81-1768
BOARDMAN and DANAHY, JJ., concur.
413 So. 2d 116 Florida District Court of Appeal, Second District (1982) Positive Treatment
Cited by 34 cases

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Synopsis

In this child support modification case, the Florida District Court of Appeal affirmed a trial court's decision to credit the ex-husband with erroneous charges against his child support account, but reversed the court's suspension of child support because the ex-wife did not receive adequate notice that modification would be considered at the hearing.


Holding

The court affirmed the credit against arrearages because the hearing notice's reference to 'consider arrears' reasonably put the ex-wife on notice that a credit might be allowed after careful examination of the arrearages claim. However, the court reversed the suspension of child support because the notice did not indicate that modification of the support decree would be considered, and modification requires appropriate pleadings and an opportunity for both parties to be heard.


Headnotes

[1] A court may allow a credit against child support arrearages if the notice of hearing reasonably implies that the amount of arrearages may be examined and adjusted.

[2] A court cannot modify a child support decree unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be hear…

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Key Quotes

“A court cannot modify a support decree, or any other decree, unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue.”

Establishes the fundamental requirement that modification requires proper notice and pleadings presented to both parties

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Facts & Procedural History

Mary and Richard were divorced in 1978, with Mary receiving custody of their four minor children and Richard ordered to pay child support. In 1981, a …

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Opinion of the Court
HOBSON, Acting Chief Judge.

HOBSON, Acting Chief Judge.

Mary Manning (Mary), formerly Mary Varges, appeals a final order in favor of Richard Varges (Richard), her ex-husband, allowing a credit against arrearages in child support and suspending child support. We affirm that portion of the final order allowing a credit against arrearages and reverse that portion suspending child support.

In 1978, the Circuit Court for Hillsbor-ough County dissolved the marriage of Mary and Richard. The court awarded her custody of their four minor children, subject to reasonable visitation privileges, and directed him to pay child support. On June 1, 1981, the commissioner of the circuit court served Mary and Richard by mail at their respective addresses in St. Ann, Missouri, and Tampa, Florida, with a notice of a July 22, 1981, hearing “to consider arrears of $5,271.86.” The notice concluded with the following warning: “BE PRESENT ... SHOULD EITHER OF YOU FAIL TO APPEAR, YOUR RIGHTS MAY BE SERIOUSLY PREJUDICED.” Richard appeared at the hearing with his attorney and offered testimony on his behalf. Mary, however, appeared neither in person nor through an attorney.

After the hearing, the court ordered and adjudged as follows:

1. That the husband’s support account shall be credited in the amount of $2,775.66 for charges that were erroneously placed against the husband’s account. 2. That the husband’s obligation to pay child support is hereby suspended until such time as the wife permits the husband to visit with the minor children of the parties still in her custody and enters into an agreement either with the husband or the Office of the Circuit Court Commissioner that would permit the husband to exercise reasonable and liberal rights of visitation with the minor children.

Mary contends that the court lacked authority to allow a credit against arrear-ages (paragraph 1 of the final order) and to suspend child support (paragraph 2) since she believes that she did not receive proper notice.1 She argues that the hearing notice did not indicate that anything other than “enforcement of arrearages” would be considered. (Emphasis added) Her construction of the language of the notice is too constrained. The notice provided that the hearing would “consider arrears.” (Emphasis added) The American Heritage Dictionary of the English Language (rev. 5th ed. 1976), defines “consider” as “[t]o deliberate upon; examine; study.” In effect, the notice implied that the court might determine after a studious deliberation and careful examination of the matter of arrears that Richard did not owe the entire $5,271.86. Thus, she had actual notice that he might be allowed a credit against arrearages.

It cannot be fairly said, however, that the notice that arrears would be considered put Mary on actual notice that child support might be modified. A court cannot modify a support decree, or any other decree, unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue. Cortina v. Cortina, 98 So. 2d 334, 336 (Fla.1957). Furthermore, nothing in the record indicates that Richard filed a petition for modification. A decree adjudicating an issue not presented by the pleadings nor litigated by the parties during the hearing on the pleadings is, at least, voidable upon appeal. Id. at 337; see Fox v. Haislett, 388 So. 2d 1261, 1265 (Fla. 2d DCA 1980); Taylor v. Taylor, 376 So. 2d 27, 29 (Fla.2d DCA 1979). Therefore, the hearing was not an appropriate proceeding to modify child support.2

Accordingly, paragraph 1 of the order is affirmed and paragraph 2 is reversed. The cause is remanded with directions to vacate paragraph 2 without prejudice to permit further consideration of the matter of modification of child support upon the filing of appropriate pleadings.

AFFIRMED in part, REVERSED in part and REMANDED.

BOARDMAN and DANAHY, JJ., concur. . The only questions before us are whether Mary had actual notice that Richard might be allowed a credit against arrearages and that child support might be modified. There is no question that the June 1 notice afforded her a reasonable time to appear in person or through counsel at the July 22 hearing.

. We note that Richard concedes that paragraph 2 is “technically deficient.”


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Citator

Cited By (17 total)

  • Wendel v. Wendel, 852 So. 2d 277 (Fla. 2d DCA 2003)
    …neither party sought. A trial court may not modify any child support provisions sua sponte. Rather, proposed modifications must be properly pleaded and notice must be given so that the opposing party has an opportunity to respond. Manning v. Varges, 413 So. 2d 116, 117 (Fla. 2d DCA 1982); Dey v. Dey, 838 So. 2d 626 (Fla. 1st DCA 2003). Here, the Former Wife did not file any motion or other pleading seeking a change in the allocation of uninsured medical bills, a change in the IRS dependency exemptions, or a…
  • …ealth and Rehabilitative Services to amend its previously filed certification for income tax refund interception to conform with the court’s order. A proper pleading must precede any judicial adjustment of child support arrears. Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982). In this case, no such pleading was filed. We hold that the trial court erred in cancelling the child support arrears owed by appellee in the absence of a proper pleading and in ordering appellant to amend its income tax refund in…
  • State v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996)
    …ould be an issue at this hearing. We agree. “A court cannot modify a support decree ... unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be heard on such issue.” Manning v. Varges, 413 So. 2d 116, 117 (Fla. 2d DCA 1982). Notice that the court will consider an arrearage does not place a party on notice that the court might modify the child support order. Department of Health & Rehabilitative Servs. v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992…

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