GARRY PETERSON, APPELLANT,
v.
SHERRI LYNN MATHIES, APPELLEE
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A father sought a contempt order against the mother for unpaid child support. The trial court not only found contempt but also unilaterally reduced future support payments, granted a retroactive reduction of past arrearages, and modified the visitation schedule without proper notice or pleading of these issues. The appellate court reversed, holding that due process requires specific notice and pleading of modification requests separate from contempt motions.
The court reversed and held that the trial court violated due process by considering child support modification and visitation issues without proper notice and pleading. A motion for contempt does not place a party on notice that the court might modify the child support order, and modification of child support must be specifically requested with notice to the adverse party.
[1] A court may not modify child support obligations upon a motion for contempt without a specific request for modification and notice to the opposing party.
[2] Notice that a court will consider child support arrearages does not place a party on notice that the court may modify the child support order.
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Join FLexlaw to unlock all legal intelligence“modification of child support must be specifically requested with notice to adverse party and may not ensue upon motion for contempt”
Establishes the core holding that child support modifications cannot be granted in contempt proceedings without proper notice and pleading
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Join FLexlaw to unlock all legal intelligenceThe mother failed to pay court-ordered child support payments. The father filed a motion for contempt with a hearing notice. The mother sent a letter …
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[*48] HARRIS, Judge.
When the mother failed to pay her court-ordered child support payments, the father moved for an order of contempt. Upon receipt of a copy of the father’s motion and notice of the hearing set on it, the mother wrote the trial judge informing him of visitation problems and stating:
I have been sending my girls what money I can, either by money order or by cash. I am not in Florida any more. I am no longer making the money I was or even [close to it] at the moment. I pay all my own bills by myself, because my fiancee is in between jobs.
Although it appears that a copy of this letter might have been sent to the father by a court employee shortly before the contempt hearing, there is no indication that the court would consider a modification of support or visitation at the contempt hearing. He did. Further, not only did the court reduce future support, it also granted a retroactive reduction of $5,173.99 from past arrearages and substantially changed the visitation schedule.
Although the transcript of the hearing is not before us, the father is not challenging the sufficiency of the evidence. He contends rather that the court’s consideration of issues neither pleaded nor noticed deprived him of due process of law. We agree and reverse. See State, Department of Health and Rehabilitative Services v. Burns, 654 So. 2d 1014 (Fla. 1st DCA 1995) (modification of child support must be specifically requested with notice to adverse party and may not ensue upon motion for contempt). This court has held that notice that a court will consider a child support arrearage does not place a party on notice that the court might modify the child support order. Department of Health and Rehabilitative Services v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992).
REVERSED and REMANDED.
COBB and THOMPSON, JJ., concur.
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Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Burns, 654 So. 2d 1014 (Fla. 1st DCA 1995)
- Dep't OF Health & Rehabilitative Servs. v. Smith, 605 So. 2d 1335 (Fla. 5th DCA 1992)