DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, ETC., APPELLANT,
v.
VICTOR WARD, APPELLEE
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The Department of Health and Rehabilitative Services appealed a contempt order that found the former husband in civil contempt for nonpayment of child support but then reduced his monthly support obligation and extended his arrearage payment period over 55 years without any request for modification. The court reversed, holding that a trial court cannot modify child support obligations without a pleading requesting modification, even in a contempt proceeding.
The court held that a trial court lacks power to modify child support obligations absent a pleading requesting modification, even when hearing a motion for contempt. The modification order was therefore voidable, and the case was remanded for imposition of appropriate sanctions for the contempt finding.
[1] A court may allow a credit against child support arrearages when the notice of hearing broadly states that "arrears" will be considered, implying a deliberation and exami…
[2] A court cannot modify a child support decree unless the issue of modification is presented in appropriate proceedings and each party is afforded an opportunity to be hear…
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Join FLexlaw to unlock all legal intelligence“It is fundamental that a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand and where, as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.”
Establishes the fundamental principle that trial courts cannot decide issues not raised by the pleadings or litigated by the parties
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe former husband was ordered to pay $70 weekly in child support pursuant to a default order entered September 30, 1983. By March 15, 1989, when the …
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PETERSON, Judge.
H.R.S. on behalf of Donna Ward appeals an “Order of Technical Contempt and Deferred Payment of Specific Amount and Support” that found the former husband in civil contempt for failure to pay child support, imposed no sanctions, and reduced the monthly amount of child support he was obligated to pay. We reverse.
The former husband was ordered to pay weekly $70 as child support and $2 as the clerk’s fee pursuant to a default order of support entered on September 30, 1983. Several motions for orders of contempt and notices of hearings were filed between 1983 and March 8, 1989, when the last motion and notice were filed. Only the last were finally served upon the former husband on March 15, 1989, when the child support arrearage had reached $20,020.
The court found the former husband to be in arrears and found him to be in civil contempt for failure to pay. The court also ordered him to “stay current on his present child support at a rate of $150 per month and, in addition, pay the sum of $30 per month towards arrearage until paid in full, plus $5 clerk’s fee, for a total of $185 per month commencing April 5, 1989.” In summary, the trial court reduced the child support from $303.33 per month to $150 per month, allowed the former husband to pay monthly instead of weekly, and allowed the former husband a period of over 55 years to pay that which he should have paid over the previous five and one-half years. The former wife was understandably upset by the results of the hearing at which the sole motion to be considered was her motion for contempt.
In Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957), the trial court amended a final judgment by revoking that portion requiring payment of support. The amendment took place, sua sponte, at a hearing scheduled only for the issue of determining whether the former wife was in contempt for refusing to allow reasonable visitation. The supreme court held:
It is fundamental that a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand and where, as here, an issue was not presented by the pleadings nor litigated by the parties during the hearing on the pleadings as made, a decree adjudicating such issue is, at least, voidable on appeal.
Id. at 337. This fundamental rule was followed in Steinberg v. Adrabi, 493 So. 2d 546 (Fla. 3d DCA 1986), when the trial court suspended child support payments during a hearing on a motion for contempt. The Third District held that in the absence of a pleading requesting modification of the former husband’s obligation to pay child support, the trial court was without power to order such modification.
The record before us reveals no request for modification of the child support by anyone. The bulk of the record indicates repeated motions to enforce payment of child support originally ordered by an Indiana court on March 1,1983. We vacate that portion of the order modifying the manner of payment of the child support and arrearages, and, since the trial court found the former husband in contempt for failure to make any support payments, we REMAND this matter for imposition of appropriate sanctions.
REVERSED and REMANDED.
SHARP and HARRIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Dep't OF Health & Rehabilitative Servs. v. Porbansky, 569 So. 2d 815 (Fla. 5th DCA 1990)…child support to $175 per month from the $162.50 per week ordered to be paid in an earlier IV-D order of support issued by a Hernando County Circuit Court of Florida on October 25, 1988. In Department of Health and Rehabilitative Services v. Ward, 560 So. 2d 1381 (Fla. 5th DCA 1990), which was also a URESA action, we vacated the portion of an order that modified the manner of payment of child support. There are several similarities between Ward and the instant case. In both cases, H.R.S. asked only for enfor…
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State v. Daumier Collins, 727 So. 2d 1099 (Fla. 2d DCA 1999)…fication. Accordingly, we reverse the order terminating child support. Similarly, the trial court improperly considered modification of the arrearage owed by Collins at the contempt hearing. See Department of Health & Rehabilitative Servs. v. Ward, 560 So. 2d 1381, 1381 (Fla. 5th DCA 1990) (absent a motion for modification, a trial court cannot modify the manner of repayment of an arrearage at a hearing for contempt). Moreover, the DOR is correct that a trial court cannot order a custodial parent to repay an…
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Mason v. Mason (Fla. 5th DCA 2021)
Authorities Cited
- Cortina v. Cortina, 98 So. 2d 334 (Fla. 1957)
- Steinberg v. Amnon Adrabi, 493 So. 2d 546 (Fla. 3d DCA 1986)