MYRNA WALDMAN, APPELLANT,
v.
IRVING WALDMAN, 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.
In this family law appeal, the court addresses whether a former husband's overpayment of alimony during appeal can be offset against retroactive child support arrearages. The court holds that child support obligations are vested rights not subject to offset based on mathematical overpayments alone, but permits offset of court-awarded suit money and costs.
The court reversed the offset of the $22,000 retroactive child support arrearages, holding that child support obligations are vested rights that cannot be offset based solely on mathematical overpayment calculations, absent compelling equitable considerations. The court affirmed the offset of the $12,648.15 in suit money and costs, finding the recipient had unrestricted control over the alimony overpayment and knew the underlying order was under appeal.
[1] Child support obligations are vested rights and are not subject to retroactive modification.
[2] A set off of amounts paid against child support obligations is permissible only upon a showing of compelling equitable criteria and considerations.
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“Child support obligations are "vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification."”
Establishes the fundamental principle that child support cannot be retroactively modified or offset without compelling equitable reasons.
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 were married 22 years and divorced in 1976 with an award of lump sum alimony and combined monthly support payments. In 1983, Mrs. Waldman …
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 Alimony And Child Support cases and more on FLexlaw
NESBITT, Judge.
Mrs. Waldman appeals an order of the trial court granting her former husband, Dr. Waldman, a set off for retroactive child support arrearages against his overpayment to Mrs. Waldman of permanent peri- odie alimony. For the reasons which follow, we affirm in part and reverse in part.
At the time of the entry of the final judgment of dissolution of marriage in 1976, the parties had been married for twenty-two years. In the original judgment, Mrs. Waldman was awarded lump sum alimony in excess of $157,000 and $4,000 per month of combined permanent periodic alimony and child support, reduced to $3,000 per month after six months, then to $2,000 per month when the last of the couple’s four children attained majority.
On January 5, 1983, Mrs. Waldman petitioned to modify the final judgment to provide for increased periodic alimony and child support payments, due to an alleged change in circumstances.
On May 23, 1986, the trial court granted her petition for modification. The court determined that the $3,000 per month unallocated alimony and child support had been comprised of $1,000 per month child support, and $2,000 per month alimony. It ordered permanent periodic alimony increased to $5,500 per month, and support for the one remaining minor increased to $1,500 per month, both amounts to be retroactive to the date of the filing of the petition. The court also awarded Mrs. Waldman $85,000 in attorney’s fees and $12,648.15 in costs.
Dr. Waldman appealed the modification order, but failed to procure a bond su-perceding his obligation to pay the increased amounts of alimony and child support, and commenced making those payments. He did not, however, pay the retroactive amounts of alimony and child support, as ordered by the trial court. Ultimately, this court affirmed the award of increased and retroactive child support, but reversed the increased and retroactive alimony award. This court also vacated the award of attorney’s fees and ordered them recomputed. Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA), review denied, 531 So. 2d 169 (Fla.1988).
In accordance with this court’s mandate, the trial court entered a final judgment vacating the modification order with respect to the enhanced and retroactive alimony but left intact the enhanced and retroactive child support. It also vacated the award of attorney’s fees.
Following the order on mandate, Mrs. Waldman filed an emergency motion to en-forcé the award of retroactive child support, stipulated to be the sum of $22,000, and also sought attorney’s fees and costs. Aware that Mrs. Waldman did not have the funds to repay him the $52,500 he had overpaid her in alimony pending appeal, Dr. Waldman responded to the emergency motion by requesting the $22,000 retroactive child support be set off against that overpayment. After an evidentiary hearing, the court ordered the $22,000 in child support arrearages as well as $12,648.15 in suit money and costs set off against the $52,500 alimony overpayment, making an allowance for the actual amount of income tax paid by Mrs. Waldman.
Furthermore, the trial court ordered that any balance of Dr. Waldman's overpayment remain, at the court’s discretion, a credit against future attorney’s fees and costs, or such other payments which Dr. Waldman, in-the future, may be ordered to pay.
Child support obligations are “vested rights of the payee and vested obligations of the payor which are not subject to retroactive modification.” Onley v. Onley, 540 So. 2d 880 (Fla. 3d DCA1989) (citing Pottinger v. Pottinger, 133 Fla. 442, 182 So. 762 (1938); Ragan v. Thomas, 515 So. 2d 405 (Fla. 1st DCA1987); Shufflebarger v. Shufflebarger, 460 So. 2d 982 (Fla. 3d DCA1984); Petrucci v. Petrucci, 252 So. 2d 867 (Fla. 3d DCA1971)); see also Puglia v. Puglia, 600 So. 2d 484 (Fla. 3d DCA1992); Larger v. Diaz, 595 So. 2d 1092 (Fla. 3d DCA1992); Goldman v. Goldman, 529 So. 2d 1260 (Fla. 3d DCA1988).
A party may be successful in seeking set off of amounts paid against support obligations only in those limited circumstances where that party can show “compelling equitable criteria and considerations” justifying such set off. Chappell v. Chappell, 253 So. 2d 281, 287 (Fla. 4th DCA1971); Francisco v. Francisco, 505 So. 2d 1102 (Fla. 2d DCA1987); Glaeser v. Glaeser, 449 So. 2d 428, 430 (Fla. 2d DCA1984).
As stated in Chappell, “child support ... is not an ‘ordi nary debt’ but rather a court-imposed obligation to provide for one’s child.” 253 So. 2d at 287 (quoting Williams v. Williams, 8 Cal.App.3d 636, 87 Cal.Rptr. 754 (1970)).
We conclude that Dr. Waldman failed to present any compelling equitable considerations warranting a set off of the vested obligation to pay his child’s support. Dr. Waldman knew he was obligated to pay child support from the moment the original dissolution order was entered in 1976. He is a prosperous physician who clearly has the present ability to pay the past due amount. Mrs. Waldman did not fail to pursue her right to these funds nor did she ever indicate an intent to waive her right to the funds.
In light of the strong public policy considerations encouraging the prompt payment of child support obligations, we conclude that a mathematical computation of overpayment of support obligations by the support obligor, standing alone, cannot provide the compelling equitable circumstances permitting a set off of past due support obligations. Prompt payment of all child support obligations is of great import to ensure each child’s welfare and mitigate harm to the child caused by the process of legal dissolution of marriage. See § 61.001, Fla.Stat. (1991).
On the other hand, we find no abuse of discretion in the trial court’s decision to set off the $12,648.15 in suit money and costs. The suit money was awarded Mrs. Waldman in an order which Dr. Waldman immediately appealed. Mrs. Waldman was fully aware that the order under which she was receiving the enhanced alimony and child support was under appeal and potentially subject to reversal. She received a total of $52,500 in alimony to which it was ultimately determined she was not entitled, and over which she had the unrestricted right to determine how the money was spent. Considering Mrs. Waldman had free reign in spending $52,500, we affirm that part of the order allowing the set off for the suit money and costs she claims she is still due. Chappell, 253 So. 2d at 283 (the general test used to determine whether to allow a set off is whether the party receiving the funds had the unrestricted right to determine how they were spent).
Accordingly, we reverse that part of the order allowing the set off for child support and affirm that part of the order allowing the set off for the $12,648.15 in suit money and costs. We also affirm that part of the order recognizing the trial court’s authority to allow further set offs for non-support obligations which may become due in the future from Dr. Waldman, depending on the equities existing at that time.
Affirmed in part and reversed in part.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
In re the Marriage of Filaretos Filaretou v. Jesusa Filaretou, 652 So. 2d 952 (Fla. 2d DCA 1995)…accrued alimony for those payments made by the Husband in regard to the marital property that the final judgment had imposed upon the Wife. We find these circumstances to equate to the “compelling equitable criteria” discussed in Waldman v. Waldman, 612 So. 2d 703 (Fla. 3d DCA 1993) and Chappell v. Chappell, 253 So. 2d 281 (Fla. 4th DCA 1971). The marital home is the single most valuable asset of the parties. Upon sale of the marital home, the Husband is required to pay to the Wife from the proceeds thereof,…
-
Marlowe v. Wally R. Marlowe, 123 So. 3d 1194 (Fla. 1st DCA 2013)…ad of upon high school graduation. Further, set offs against support obligations are permitted “in those limited circumstances where that party can show ‘compelling equitable criteria and considerations’ justifying such set off.” Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993) (quoting Chappell v. Chappell, 253 So. 2d 281, 287 (Fla. 4th DCA 1971)). We find that equitable circumstances exist warranting the trial court’s ruling because, if the alimony arrearage was not set off against the child suppo…
-
Hall v. Maal, 32 So. 3d 682 (Fla. 1st DCA 2010)…payments made by Dr. Maal pursuant to the initial temporary order were not vested rights/obligations that could not be retroactively modified as was suggested in the original panel opinion. See 34 Fla. L. Weekly at D2154 (quoting Waldman v. Waldman, 612 So. 2d 703, 704 (Fla. 3d DCA 1993)). First, the payments were made pursuant to a temporary order, not a final judgment as was the case in Waldman. Second, in this case, the trial court expressly reserved jurisdiction in the initial temporary order to conduct a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (14 total)
- Pottinger v. Pottinger, 133 Fla. 442 (Fla. 1938)
- Waldman v. Waldman, 520 So. 2d 87 (Fla. 3d DCA 1988)
- Carol Puglia & the Dep't of Health & Rehabilitative Servs. v. Puglia, 600 So. 2d 484 (Fla. 3d DCA 1992)
- Chappell v. Chappell, 253 So. 2d 281 (Fla. 4th DCA 1971)
- Patricia Onley & the Dep't of Health & Rehabilitative Servs. v. Onley, 540 So. 2d 880 (Fla. 3d DCA 1989)
- Goldman v. Goldman, 529 So. 2d 1260 (Fla. 3d DCA 1988)
- Shufflebarger v. Harry L. Shufflebarger, M.D., 460 So. 2d 982 (Fla. 3d DCA 1984)
- Ross v. State, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Emilie S. Petrucci v. Petrucci, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Sw. Offs., Inc. v. Cnty. Nat'l Bank of S. Fla., 595 So. 2d 1092 (Fla. 3d DCA 1992)