STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, ON BEHALF OF DEBORAH DAVIS, APPELLANT,
v.
WHEELER CANADY, APPELLEE
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Florida's Department of Health and Rehabilitative Services appealed a trial court's order cancelling accrued child support arrears owed by an incarcerated parent. The appellate court reversed, holding that a proper pleading must precede any judicial adjustment of child support arrears and that a receiving spouse has a vested right to payment of arrears absent compelling circumstances.
The trial court erred in cancelling child support arrears in the absence of a proper pleading. A receiving spouse has a vested right to payment of child support in arrears, and absent compelling circumstances or valid defenses, a trial court lacks authority to retroactively cancel or reduce past due child support payments.
[1] A judicial adjustment of child support arrears requires a proper pleading to precede it.
[2] A trial court lacks the authority to retroactively cancel or reduce past due child support payments absent compelling circumstances or a valid defense.
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Join FLexlaw to unlock all legal intelligence“A proper pleading must precede any judicial adjustment of child support arrears.”
Establishes the procedural requirement the trial court violated by cancelling arrears without a pleading.
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Join FLexlaw to unlock all legal intelligenceThe trial court had suspended appellee's child support obligation while he was incarcerated. Upon his release, he failed to resume payments. The court…
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OTT, Judge.
The trial court cancelled accrued child support arrears owed by appellee. We reverse.
The court had previously entered an order suspending appellee’s obligation to make court-ordered child support payments after determining that appellee was incarcerated and unable to make the payments. Upon appellee’s release from incarceration, he failed to resume making the payments. The court issued an order to show cause setting a time for appellee to appear before the court. The hearing was not transcribed. Following the hearing, the court entered an order that all child support arrears accruing prior to appellee’s release from prison were “reduced to a zero balance.” The court further directed the Department of Health 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 interception certification.
We note that a receiving spouse has a vested right to payment of child support in arrears. Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA 1983).
Absent compelling circumstances or a valid defense, a trial court lacks the authority to retroactively cancel or reduce past due child support payments. Raybuck, v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984).
Such compelling circumstances are in the nature of laches, estoppel, waiver, reprehensible conduct upon the part of the parent having custody, or other strong equitable reasons. Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981).
Although the court has the discretion to decline to hold a non-paying parent in contempt, the parent to whom the arrears are owed is entitled to enforcement of the payment by legal process. Guarino. In this case, appellant has standing to institute proceedings to collect the arrears which accrued while appellee’s children were receiving public assistance benefits. Lamm v. Chapman, 413 So. 2d 749 (Fla.1982).
We do not decide whether the facts of this case present compelling circumstances which would allow the lower court to retroactively cancel the past due support.
REVERSED.
RYDER, C.J., and FRANK, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (13 total)
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Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987)…contempt, the receiving spouse is entitled to enforcement of payments by legal process and by such equitable remedies as the trial court may determine to be appropriate and necessary. State Department of Health and Rehabilitative Services v. Canady, 473 So. 2d 273, 274 (Fla. 2d DCA 1985); Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA), petition for review dismissed, 441 So. 2d 632 (Fla. 1983); Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977). In other words, the trial court may not reduce a child s…
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Dep't OF Health & Rehabilitative Servs. v. Beckwith, 624 So. 2d 395 (Fla. 5th DCA 1993)…5th DCA1991); Bingemann v. Bingemann, 551 So. 2d 1228 (Fla. 1st DCA1989), rev. denied, 560 So. 2d 232 (Fla.1990); Hammond v. Hammond, 492 So. 2d 837 (Fla. 5th DCA1986); State Dept. of Health and Rehabilitative Services on Behalf of Davis v. Canady, 473 So. 2d 273 (Fla. 2d DCA1985); Robinson v. State, Dept. of Health and Rehabilitative Services on Behalf of Robinson, 473 So. 2d 228, 229 (Fla. 5th DCA 1985), dismissed, 478 So. 2d 53 (Fla.1985). See also § 61.14(5), Fla.Stat. (1991). Accordingly, we hold that t…
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State v. Evans, 706 So. 2d 933 (Fla. 2d DCA 1998)…f of compelling circumstances such as laches, es-toppel, waiver, or other equitable reasons. See Florida, Dep’t of Health & Rehabilitative Servs. v. Hinson, 651 So. 2d 216 (Fla. 2d DCA 1995); State, Dep’t of Health & Rehabilitative Servs. v. Canady, 473 So. 2d 273 (Fla. 2d DCA 1985). There is no such pleading or proof in this record. Reversed and remanded for further .proceedings. ALTENBERND, A.C.J., and QUINCE and WHATLEY, JJ., concur.…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Lamm v. Chapman, 413 So. 2d 749 (Fla. 1982)
- Sherl Lanette Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984)
- In re the Marriage of Luz Joson Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981)
- Manning v. Varges, 413 So. 2d 116 (Fla. 2d DCA 1982)
- Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA 1983)