KATHLEEN SUE ASHE, APPELLANT,
v.
JERRY LAMAR ASHE, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A former wife appeals a trial court order reducing child support arrearages from $24,585 to $7,500 without adequate findings or justification. The court reverses and remands, holding that child support arrearages are vested rights belonging to the child that cannot be reduced absent extraordinary circumstances supported by clear findings of fact.
Child support arrearages constitute vested rights belonging to the child that cannot be retroactively reduced absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct by the custodial parent. The trial court must either permit execution on the arrearage judgment or establish an enforcement mechanism such as scheduled monthly payments consistent with the payor parent's ability to pay. The order must contain explicit findings supporting any reduction and sufficient detail to permit meaningful appellate review.
[1] A court cannot modify a divorce decree to affect or cancel past-due child support installments.
[2] A litigant cannot receive the benefit of a reduction in support payments that relates to a period prior to the filing of a petition for modification.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the right to arrearages in child support is a vested right which inures to the benefit of the child”
Establishes the fundamental principle that child support arrearages belong to the child and cannot be casually reduced or forgiven
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe parties divorced in 1981 with the husband obligated to pay $165 per week in child support for three minor children. By December 1985, arrearages t…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Modification Of Final Judgment cases and more on FLexlaw
JOANOS, Judge.
In this domestic proceeding, the former wife appeals the trial court’s order reducing the amount of child support arrearages. The points for review are (1) whether there is evidence to support the reduction in arrearage, and (2) whether the trial court erred in refusing to enter a money judgment or to allow execution on the arrear-age. We reverse and remand for further proceedings.
The parties were married May 28, 1972, and are the parents of three minor children. On October 14,1980, the wife filed a petition for dissolution of marriage. On February 5,1981, the parties entered into a stipulation. On February 6, 1981, the trial court entered final judgment of dissolution of marriage, which judgment incorporated all the provisions of the parties' agreement including the provisions that the wife have custody of the children and that the husband pay $165 per week in child support.
On December 23, 1985, the wife filed a notice of lis pendens and a motion to reduce the alleged child support arrearage of $24,585 to judgment. On January 30,1986, the husband filed a motion to quash the notice of lis pendens.
On February 11, 1986, the husband filed a financial affidavit reflecting monthly income of $481.66, and monthly expenses of $583. The husband’s financial affidavit does not itemize an amount for child support. In addition, the husband filed a petition to modify the final judgment and to prohibit enforcement of past due arrear-age. As grounds therefor, the husband stated that his annual income had declined from the $20,740 he earned at the time of entry of the final judgment of dissolution. The husband’s tax returns indicate his post-1981 earnings to be $13,956 in 1982; $8,989 in 1983; $5,779 in 1984; and $9,000-$10,000 in 1985.
The record reflects the husband permitted the wife and the parties’ children to live in his home on a rent-free basis. In the petition for modification, the husband sought a rent set-off against the child support arrearage, as well as a set-off for other funds expended on the children’s behalf. The wife stipulated the husband was entitled to a set-off of $760, which included $510 which the husband paid for summer day camp and $250 worth of furniture which the husband gave to the wife.
In addition, the wife concedes the husband is entitled to a rent set-off, but the amount of the reasonable rental value of the house is in dispute. According to the wife, the reasonable rental value of the home is $100 per month. The wife’s expert witness testified the home was not in a rentable condition, but if it were, the reasonable rental value would be $140 per month. The husband testified the reasonable rental value of the home is $350 per month.
There is record evidence regarding the husband’s financial losses in connection with his business, and that these losses resulted in a reduction of the husband’s income. Although the wife disputed the accuracy of the husband’s annual income figures, she acknowledged that during the years the husband failed to pay any child support with the exception of the provision of housing, he had been unable to pay the full amount originally agreed upon in the parties’ stipulation.
It is undisputed that during the relevant time period, the husband received funds and personal property from an inheritance. In addition, the parties testified that the husband had offered the wife $1,000 to apply on the mortgage which she holds on his property. The wife refused, insisting the money should apply against the child support arrearage. The parties agree the money was never paid.
The trial court entered an order modifying the final judgment, thereby reducing the child support payments to $65 per week. In a second order, the trial court established the child support arrearage at $7,500, but withheld execution. The instant appeal is concerned only with the order reducing the child support arrearage.
We note at the outset that the right to arrearages in child support is a vested right which inures to the benefit of the child. Guzy v. Pavic, 500 So. 2d 711 (Fla. 1st DCA 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 decree as regards past due installments.” Wing v. Wing, 464 So. 2d at 1344. Accord Brock v. Hudson, 494 So. 2d at 286.
Furthermore, it is well settled that although a trial court may decline to hold a non-paying parent in 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 support arrearage to judgment and then withhold execution. Execution must be permitted or some mechanism, such as a schedule of monthly payments consistent with the payor parent’s ability to pay, must be established. See, e.g., Smithwick v. Smithwick, 343 So. 2d at 947.
In this case, the order establishing child support arrearage at $7,500 makes no express finding of compelling or extraordinary circumstances which would justify such a reduction, nor does there appear to be record support for such a finding. Furthermore, the order contains no reasoning which explains the amount of the arrearage reduction. Therefore, we are unable to determine how the trial court arrived at the amount of the reduction. Since meaningful appellate review is impossible, we must reverse and remand. See DePoorter v. DePoorter, 509 So. 2d 1141 (Fla. 1st DCA 1987); Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987). We reverse the trial court’s order establishing arrearage, and remand with directions to reconsider the order in light of the record and the governing law, and to enter an order containing findings of fact which take into account the facts and figures in the record before the court. The trial court’s order should provide sufficient detail to apprise a reviewing court of the underlying rationale for the decision.
Accordingly, this cause is reversed and remanded for reconsideration of the arrear-age issue in light of this opinion, and for entry of an order which contains sufficient findings which support the decision.
WIGGINTON and ZEHMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (18 total)
-
Dyson v. Dyson, 597 So. 2d 320 (Fla. 1st DCA 1992)…ns of the final judgment effecting a distribution of the parties’ marital assets and liabilities and remand for further written findings of fact in accordance with this opinion. See Eisner v. Eisner, 513 So. 2d 673 (Fla. 1st DCA 1987); Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987); De Poorter v. De Poorter, 509 So. 2d 1141 (Fla. 1st DCA 1987); Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987). Reconsideration of all pertinent issues relating to the distribution scheme, especially those discussed below, is…
-
Carol Puglia & the Dep't of Health & Rehabilitative Servs. v. Puglia, 600 So. 2d 484 (Fla. 3d DCA 1992)…ge is to be repaid. Leone v. Weed, 474 So. 2d 401 (Fla. 4th DCA 1985). Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977). However, the trial court is to consider the pay- or’s ability to pay when determining the monthly amount. Ashe v. Ashe, 509 So. 2d 1146 (Fla. 1st DCA 1987). We note that at the present rate it would take the father over 60 years to repay the arrearages. However, the record is silent regarding the father’s ability to pay. Therefore, we reverse the award of credits for past visitatio…
-
Patricia Onley & the Dep't of Health & Rehabilitative Servs. v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989)…e the appellant raises no point on appeal concerning this fact and does not challenge the authority of the court, in ruling on a motion for contempt, to provide for a reasonable repayment schedule in discharge of past due payments, see Ashe v. Ashe, 509 So. 2d 1146, 1148 (Fla. 1st DCA 1987), we note that the court must reconsider the entire issue in the light of our instant determination to increase the amount of the recoverable arrearages. When it does so, it should reconsider also the propriety of the terms…
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 (12 total)
- Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977)
- Baumann v. Agudelo (Fla. 3d DCA 2024)
- DePOORTER v. Win Edward DePOORTER, 509 So. 2d 1141 (Fla. 1st DCA 1987)
- Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979)
- Barrs v. Barrs, 505 So. 2d 602 (Fla. 1st DCA 1987)
- Wing v. Wing, 464 So. 2d 1342 (Fla. 1st DCA 1985)
- In re the Marriage of Luz Joson Panganiban v. Panganiban, 396 So. 2d 1156 (Fla. 2d DCA 1981)
- State of Fla. Dep't OF Health & Rehabilitative Servs. v. Wheeler Canady, 473 So. 2d 273 (Fla. 2d DCA 1985)
- Guarino v. Guarino, 431 So. 2d 189 (Fla. 2d DCA 1983)
- Brock v. Hudson, 494 So. 2d 285 (Fla. 1st DCA 1986)