LINDA F. KOLB (WILDERMUTH), APPELLANT,
v.
DEWEY RONALD KOLB, APPELLEE
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A former wife appeals an order granting the former husband credit against child support obligations for a period when one child temporarily lived with him. The court reversed, holding that absent compelling circumstances, trial courts lack authority to retrospectively cancel or reduce accrued child support payments based solely on temporary residence.
Absent compelling circumstances, a trial court lacks authority to retrospectively cancel or reduce past-due child support payments based solely on the temporary residence of a child with the obligor. The order was reversed and remanded for reconsideration consistent with this principle.
[1] A trial court lacks the authority to retrospectively cancel or reduce past due child support payments absent compelling circumstances.
[2] A former spouse is not entitled to credit against child support otherwise payable based solely on the temporary residence of a child with that spouse.
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Join FLexlaw to unlock all legal intelligence“is entitled to credit against child support otherwise payable during the time frame that one of the children was living with him”
The trial court's ruling that is being challenged on appeal
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Join FLexlaw to unlock all legal intelligenceAppellant (former wife) had custody of three minor children and sought to enforce child support obligations against appellee (former husband). Appelle…
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WENTWORTH, Judge.
Appellant, a former wife having custody of three minor children, appeals an order finding that appellee, the former husband and father, “is entitled to credit against child support otherwise payable during the time frame that one of the children was living with him” (e.s.). Because the order may be read as one erroneously effecting cancellation of accrued child support payments due under prior order, based solely on temporary residence of the child, we reverse and remand for reconsideration and entry of a new order. Appellant asserts that if appellee were not entitled to credit for that period of time “the correct arrearage amount would have admittedly been $887.16, as alleged in appellant’s motion for contempt.” This alleged admission as to the amount of sup port owed is not referenced in the order. Although appellant also asserts that the appellee placed into evidence an exhibit which reflects the amounts that he paid for the time in question, this exhibit does not provide the specifics of the credits in question.
Appellant presents no record of the testimony in this case,1 and we are unable to determine with certainty either from the orders or documentary exhibits before us that the circumstances of this case are analogous to those in Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984), cited by appellant. The court there concluded that a setoff for child support was improper for the period of time in which the parties’ son lived with the father and that “absent compelling circumstances the trial court lacks the authority to retrospectively cancel or reduce past due child support payments.”
We agree, however, with the referenced authority and, for reasons above stated, reverse with directions for entry of an order consistent with that principle.
WIGGINTON and NIMMONS, JJ., concur. . “Without a sufficient record, the appellate court may not properly consider the [factual] points on appeal and must affirm_’ Stein-hauer v. Steinhauer, 336 So. 2d 665, 666 (Fla. 4th DCA 1976); Haller v. Santona Land Corp., 275 So. 2d 591 (Fla. 1st DCA 1973); Starks v. Starks, 423 So. 2d 452, 453 (Fla. 1st DCA 1983).
Wing v. Wing, 464 So. 2d 1342, 1344 (Fla. 1st DCA 1985), Wentworth, J., concurring specially.
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Carol Puglia & the Dep't of Health & Rehabilitative Servs. v. Puglia, 600 So. 2d 484 (Fla. 3d DCA 1992)…fication of the child support order in advance, he did not do so. Having failed to do so, it is too late to seek this remedy retroactively. Parrish v. Department of Health & Rehabilitative Services, 525 So. 2d 1029 (Fla. 5th DCA 1988); Kolb v. Kolb, 502 So. 2d 518 (Fla. 1st DCA 1987); Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984). Although the law is clear that the mother is entitled to a judgment on the entire amount of the arrearages, the trial court may give the father an opportunity to pay the ar…1 / 2
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Ragan v. Thomas, 515 So. 2d 405 (Fla. 1st DCA 1987)…ded for reconsideration and entry of a new order, “[b]ecause the order may be read as one erroneously effecting cancellation of accrued child support payments due under prior order, based solely on temporary residence of the child ...” Kolb v. Kolb, 502 So. 2d 518 (Fla. 1st DCA 1987). Here, in its order the trial court stated “the husband is given a credit toward said sum of $1,750 for child support paid ...” This “credit” has the appearance of retroactively modifying appellant’s previous award of child suppo…
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Kutz v. Fankhanel, 608 So. 2d 873 (Fla. 5th DCA 1992)…erent attorneys acting on her behalf. . U.S. Const. Art. IV, § 1. . See Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Onley v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989); Ragan v. Thomas, 515 So. 2d 405 (Fla. 1st DCA 1987); Kolb v. Kolb, 502 So. 2d 518 (Fla. 1st DCA 1987); Hammond, v. Hammond, 492 So. 2d 837 (Fla. 5th DCA 1986); Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA), rev. dismissed, 441 So. 2d 632 (Fla.1983); Fox v. Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980); Smithwick v. Smithwick, 3…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Starks v. Starks, 423 So. 2d 452 (Fla. 1st DCA 1982)
- Wing v. Wing, 464 So. 2d 1342 (Fla. 1st DCA 1985)
- Sherl Lanette Raybuck v. Raybuck, 451 So. 2d 540 (Fla. 2d DCA 1984)
- William A. Haller et ux. v. Santona Land Corp., 275 So. 2d 591 (Fla. 1st DCA 1973)
- Steinhauer v. Steinhauer, 336 So. 2d 665 (Fla. 4th DCA 1976)