VAL GUBANA, APPELLANT,
v.
DIANA L. GUBANA, APPELLEE
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The court held that a trial court cannot sua sponte modify a child support obligation agreed upon in a property settlement agreement without providing the obligor an opportunity to be heard.
[1] A trial court may not sua sponte modify a child support obligation agreed upon in a property settlement agreement without providing the obligor an opportunity to be heard…
[2] In an uncontested dissolution of marriage hearing, if a trial court perceives a need to sua sponte modify child support from a property settlement agreement, the matter m…
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Join FLexlaw to unlock all legal intelligenceThe trial court sua sponte doubled the husband's child support obligation from the parties' property settlement agreement at a final dissolution heari…
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GUNTHER, Judge.
Husband appeals a Final Judgment of Dissolution of Marriage contending the trial court erred in sua sponte increasing the amount of his child support obligation which the parties had previously agreed to in their property settlement agreement. We reverse.
At the final hearing, the trial court reviewed the property settlement agreement and sua sponte doubled the child support obligation of the husband. Although the husband received notice of the final hearing, neither the husband nor anyone on his behalf attended the final hearing. The wife, not anticipating the trial court’s action, had advised her husband that it was unnecessary for him to attend the hearing because all matters concerning the dissolution had been resolved and the hearing would be only a formality. In the Final Judgment, the trial court incorporated the property settlement agreement except that the husband was ordered to pay more child support than the agreement set forth.
There is no dispute that a trial judge has a duty to determine the appropriateness of the child support provisions with reference to the financial needs and best interest of a child. Essex v. Ayres, 503 So. 2d 1365 (Fla. 3d DCA 1987); Cross v. Cross, 490 So. 2d 958 (Fla. 1st DCA 1986).
However, in the instant case, the trial court erred in sua sponte modifying the husband’s child support obligation because the husband should have had an opportunity to be heard before the amount was modified. As a practical matter, when a case is set on an “uncontested calendar” the trial court does not have adequate time to conduct an evidentiary hearing.
Therefore, in an “uncontested” final hearing for dissolution of marriage, if a trial court perceives the need to sua sponte modify the child support obligation of a property settlement agreement, the matter should be continued and reset with notice to all parties.
REVERSED AND REMANDED.
VITALE, LINDA L., Associate Judge, concurs.
DOWNEY, J., concurs specially with opinion.
DOWNEY, Judge,
concurring specially:
I agree that the ends of justice are best served by reversing this case and remanding for further proceedings relative to the provision for child support, albeit the husband was notified of the final hearing date and did not attend. It appears the husband had a conflict with the hearing date and, upon discussing it with his wife, was advised by her that he need not attend because, the matter being uncontested, the agreement would be put in evidence and his presence was unnecessary. Neither of them anticipated that the trial judge would sua sponte reject the amount of child support contained in the agreement.
Thus, I think the husband’s absence was excusable and the matter should have been put over to another day.
However, it seems to me that, generally, parties cannot claim lack of due process and an opportunity to be heard, when they fail to attend a final hearing such as this, because the matter is proceeding on an uncontested basis. As we all know, the trial court has certain obligations and discretion in accepting an agreement of the parties and it behooves a party to attend a scheduled final hearing to make sure his interests are protected.
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Huff v. Norilyn K. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990)…gs of fact or receiving additional evidence as to the factors enumerated in section 61.30, Florida Statutes. We agree. We do not question the trial court’s discretion to reject the amount of child support agreed to by the parties. Gubana v. Gubana, 511 So. 2d 1066 (Fla. 4th DCA 1987); Cross v. Cross, 490 So. 2d 958 (Fla. 1st DCA 1986). However there are two facets of the trial court’s method of arriving at the amount of child support and the husband’s obligation to pay, which deserve reassessment. It is fund…1 / 2
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Pedroza v. Pedroza, 779 So. 2d 616 (Fla. 5th DCA 2001)…child support agreed to by the parties by way of a separation agreement. See Huff v. Huff, 556 So. 2d 537 (Fla. 4th DCA 1990), superseded by statute on other grounds as stated in Boyt v. Romanow, 664 So. 2d 995 (Fla. 2d DCA 1995); Gubana v. Gubana, 511 So. 2d 1066 (Fla. 4th DCA 1987); Cross v. Cross, 490 So. 2d 958 (Fla. 1st DCA 1986). The basis for this rule is not that the separation agreement may have been the product of fraud or duress but rather that parents cannot contract away the rights of the child f…
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Eldrick W. Wooding v. Williams, 581 So. 2d 985 (Fla. 3d DCA 1991)…999 (Fla. 3d DCA 1979). While the court was free to initiate an upward modification on its own motion, the court was obliged to so advise the parties and set a hearing date for an evidentiary hearing on the upward modification. See Gubana v. Gubana, 511 So. 2d 1066, 1067 (Fla. 4th DCA 1987). As the upward modification was ordered without prior notice, we reverse that part of the order. This ruling is without prejudice to the right of Williams or the court to seek an upward modification on a proper motion with…
Authorities Cited
- Essex v. Ayres, 503 So. 2d 1365 (Fla. 3d DCA 1987)
- Cross v. Cross, 490 So. 2d 958 (Fla. 1st DCA 1986)