STATE OF FLORIDA, DEPARTMENT OF REVENUE BY AND ON BEHALF OF VALERIE STRICKLER, APPELLANT,
v.
HENRY STRICKLER, III, APPELLEE
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The court held that the trial court erred in reducing child support arrearage without proper pleading or notice to the mother.
The trial court reduced a father's child support arrearage based on the mother claiming dependency exemptions she was not entitled to for a particular…
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PER CURIAM.
This appeal arises out of an order finding the father in contempt for failure to pay child support, but reducing his support arrearage. The mother, through the Department of Revenue, contends the trial court erroneously reduced the arrearage. She also contests the amount of the reduction. We reverse.
Unpaid child support payments constitute a vested right which inures to the benefit of the children, and they cannot be cancelled or reduced retrospectively absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct on the part of the custodial parent. State, Dep’t of Health and Rehabilitative Serv. v. Burns, 654 So. 2d 1014, 1016 (Fla. 1st DCA 1995). The trial court’s arrearage reduction was based on the mother’s taking dependency exemptions for the parties’ children on her 1996 federal income tax return. The final judgment of dissolution granted the father that right.1 However, the reduction could only have been based on a theory of set-off, an issue never plead, nor noticed, by the father prior to hearing. Since the issue was not tried by consent, the mother was deprived of due process by the trial court’s action. See Peterson v. Mathies, 687 So. 2d 47, 48 (Fla. 5th DCA 1997). Moreover, there is no record evidence to support the amount of set-off granted, $3,000.
REVERSED and REMANDED for further proceedings consistent with this opinion.
BOOTH and WOLF, JJ., and CARITHERS, Associate Judge, concur. . The final judgment provided that the father and mother were to alternate the federal income tax dependency exemptions for their two children. The mother was entitled to claim the exemptions during the odd numbered years, and the father was allowed the exemptions in the even numbered years.
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State v. Morris, 736 So. 2d 41 (Fla. 1st DCA 1999)…hensible conduct as to permit canceling or reducing the amount of the child support arrearage, see Department of Health and Rehabilitative Servs., et al. v. Burns, 654 So. 2d 1014, 1015 (Fla. 1st DCA 1995); Department of Revenue et al. v. Strickler, 702 So. 2d 277 (Fla. 1st DCA 1997), nor would the facts in the limited record, a stipulated statement of evidence prepared pursuant to rule 9.200(b)(4), Florida Rules of Appellant Procedure, support such a finding in the instant case. The appellee argues that un…
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State v. Ductant, 957 So. 2d 658 (Fla. 3d DCA 2007)…child, and ‘they can not be cancelled or reduced retrospectively absent extraordinary or compelling circumstances such as waiver, laches, estoppel, or reprehensible conduct [on the part of the custodial parent].’ Dep’t of Revenue v. Strickler, III, 702 So. 2d 277, 278 (Fla. 1st DCA 1997).”); State Dep’t of Health and Rehab. Servs. o/b/o Davis v. Canady, 473 So. 2d 273 (Fla. 2d DCA 1985)(absent compelling circumstances or valid defense such as laches, estoppel, waiver, reprehen-sive conduct or other strong eq…
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Noralyn Miles v. Champlin, 805 So. 2d 1085 (Fla. 1st DCA 2002)…at. (2001). Any other rule might encourage tactics designed to delay final disposition of a petition. But Ms. Miles relies on State, Department of Revenue v. Fisher, 738 So. 2d 512, 513 (Fla. 1st DCA 1999), State, Department of Revenue v. Strickler, 702 So. 2d 277, 278 (Fla. 1st DCA 1997), Livingston v. Livingston, 686 So. 2d 664, 665 (Fla. 1st DCA 1996), State, Department of Health and Rehabilitative Services v. Burns, 654 So. 2d 1014, 1016 (Fla. 1st DCA 1995), and Ashe v. Ashe, 509 So. 2d 1146, 1148 (Fla. 1…
Previewing 3 of 6 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)
- Icon Dev. Corp. v. Winkelman, 687 So. 2d 47 (Fla. 4th DCA 1997)
- Peterson v. Mathies, 687 So. 2d 47 (Fla. 5th DCA 1997)