R. B.

v.

B. T.

Appeal from the Circuit Court for Hillsborough County; Wesley D. Tibbals, Judge. Allison M. Perry of Florida Appeals, P.A., Tampa, for Appellant. Richard J. Mockler, Katherine Johnson Nassar, and Angela Lynn Leiner of Mockler Leiner Law, P.A., Tampa, for Appellee. STEVENSON, W. MATTHEW, Associate Senior Judge. R.B., the Father, appeals an order denying his petition to modify child support payments to B.T., the Mother. The Father previously appealed the final judgment of paternity, which was affirmed in part and reversed in part in R.B. v. B.T., 259 So. 3d 910 (Fla. 2d DCA 2018). Because the circuit court abused its discretion in denying the Father's petition based on a defense not properly pleaded or otherwise raised, we reverse.

The circuit court adopted a magistrate's report and recommendation to deny the Father's petition based primarily on a finding of unclean hands.

However, the record shows that the issue of unclean hands was not properly before the magistrate. The Mother neither raised it as an affirmative defense in a written response to the Father's petition nor argued it at the hearing on that petition. Cf. White v. White, 3 So. 3d 400, 402 (Fla. 2d DCA 2009) (reversing order denying petition to modify alimony obligation based on defense of unclean hands where it was not pled as an affirmative defense, raised in a pretrial motion, or tried by consent).

Reiterating the well-recognized principle of "party presentation," Justice Ginsberg, writing for the United States Supreme Court, observed that "as a general rule, our system 'is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.' " United States v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020) (alteration in original) (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment)).

Justice Ginsberg went on to note that courts, with certain unusual exceptions, "do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them] and when [cases arise, courts] normally decide only questions presented by the parties." Id. (alterations in original) (quoting United States v. Samuels, 808 F. 2d 1298, 1301 (8th Cir. 1987) (Arnold, J., concurring in denial of reh'g en banc)).

Here, the circuit court abused its discretion in relying on an unpled, unraised, and unargued "unclean hands" defense to deny the Father's petition.

Moreover—apparently as a consequence of this error— the magistrate failed to address several issues that were presented at the hearing. Much evidence was presented on whether the Father's unemployment was voluntary, but the magistrate did not make factual findings on this issue. Likewise, there was evidence of an alleged substantial and permanent increase in the Mother's income which might affect the child support calculation, but on this issue too, there were no findings in the magistrate's report and recommendation. The transcript also indicates that the parties stipulated (1) that the Father was entitled to a credit against child support arrearages of approximately $10,000 for certain direct payments that he made and (2) that daycare costs would be addressed by the parties on a pro rata basis separate and apart from the child support payments.

However, the magistrate did not take any of these stipulations into account in his report and recommendation. We express no view on the merits of the stipulations or other issues identified herein, but the magistrate's failure to address them frustrates appellate review; and if the failure to give credence to any of them was due to the earlier "unclean hands" finding, we have already explained why this would be error.

In conclusion, the circuit court abused its discretion in failing to address the issues identified in this opinion, and we reverse and remand for additional proceedings to resolve them. For clarity, we note that we do not disturb any findings in the order on appeal which are not impacted by our remand instructions. Any appropriate findings on remand may be based on the existing record or, if necessary, further evidentiary proceedings.

Reversed and remanded with instructions. KELLY and VILLANTI, JJ., Concur. __________________________ Opinion subject to revision prior to official publication.