DARLENE TODARO, APPELLANT,
v.
LOUIS TODARO, APPELLEE
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Darlene Todaro appealed a child support modification judgment, arguing the trial court improperly considered her ex-husband's income reduction when his petition only alleged her increased income as grounds for modification. The court reversed the modification, finding it fell outside the scope of the pleadings, but affirmed the denial of babysitting expenses and remanded for reimbursement of medical expenses.
The trial court erred by modifying child support based on the husband's reduced income, which was not alleged in the pleadings and for which the wife received no notice. The modification judgment was reversed. The court affirmed the denial of babysitting expenses but reversed the denial of reimbursement for medical expenses of $2,579 and remanded for entry of that award.
[1] A trial court lacks jurisdiction to determine matters not raised by appropriate pleadings and notice.
[2] Issues not raised by the pleadings may be treated as if they had been raised if they are tried by implied consent of the parties.
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Join FLexlaw to unlock all legal intelligence“a trial court is without jurisdiction to "hear and determine matters which are not the subject of appropriate pleadings and notice."”
Establishes the foundational principle that trial courts lack jurisdiction over unpleaded matters
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Join FLexlaw to unlock all legal intelligenceLouis Todaro filed a petition to modify child support and custody, alleging only that Darlene Todaro was making more money as the basis for reduction.…
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GUNTHER, Judge.
Appellant, Darlene Todaro (“Former Wife”), appeals from a final judgment modifying the amount Appellee, Louis Todaro (“Former Husband”), must pay in child support. We find merit in Former Wife’s argument that the trial court improperly determined matters that were not the subject of the pleadings.
Under Florida law, a trial court is without jurisdiction to “hear and determine matters which are not the subject of appropriate pleadings and notice.” Defreitas v. Defreitas, 398 So. 2d 991, 992 (Fla. 4th DCA 1981); see Johnson v. Johnson, 546 So. 2d 97, 98 (Fla. 4th DCA 1989); Cooper v. Cooper, 406 So. 2d 1223, 1224 (Fla. 4th DCA 1981). However, when issues not raised by the pleadings are tried by implied consent, they are to be treated as if they had been raised in the pleadings. Fla. R. Civ. P. 1.190(b); see Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993).
In Johnson, the former husband’s petition for modification requested a reduction in the amount of child support paid to the former wife and an elimination of the automatic annual adjustment of his annual gross income since the former wife’s move out-of-state increased the expenses associated with his visitation rights. Johnson, 546 So. 2d at 97-98. Other than the general demand for a reduction in the amount of child support, the former husband’s petition gave no indication that he was also seeking to have the trial court interpret the support provision of their separation agreement to provide an automatic pro rata reduction of the child support upon each of the children reaching the age of majority. Id. This Court noted that the former wife properly objected at trial to the admission of the former husband’s testimony regarding the automatic pro rata reduction and found that this matter was outside the scope of the pleadings. Id.
Similarly, in the instant case, Former Husband filed a Petition to Modify Child Support and Custody asserting, as his only basis for modification, that Former Wife was making more money. Yet, at the modification hearing, Former Husband’s basis for a reduction of his child support obligation centered on the fact that his income had been reduced as a result of him changing jobs. Former Wife objected arguing that the only basis for modification that was pled was that she was making more money. Since Former Husband’s modification petition provides no indication that he would be relying on his reduced income to support his claim, we find that the modification judgment fell outside the scope of the pleadings and must be reversed. See id.; Defreitas, 398 So. 2d at 992. Former Wife was greatly prejudiced by not being put on notice that Former Husband also intended to base his modification petition on the fact that his income had been reduced. Without such notice, she would have no reason to prepare to dispute Former Husband’s contention as to what his income was. The prejudice becomes even greater when Former Wife makes clear that she did not receive a copy of Former Husband’s updated financial affidavit prior to the hearing. Moreover, it cannot be said that this issue was tried by implied consent where Former Wife objected to the trial court hearing evidence on matters that were not properly pled. See Hemraj, 620 So. 2d at 1301.
We also find that the trial court erred in denying Former Wife’s claim for reimbursement of the children’s medical expenses. Accordingly, we reverse and remand for the trial court to enter an order awarding Former Wife $2,579 in reimbursement for the children’s medical expenses. We do, however, affirm the trial court’s decision denying Former Wife’s claim for babysitting expenses.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
GLICKSTEIN and POLEN, JJ., concur.
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Byers v. Callahan, 848 So. 2d 1180 (Fla. 2d DCA 2003)…ed in the rule 1.540 motion nor tried by express or implied consent. We agree. Under Florida law, a trial court is without jurisdiction to “hear and determine matters which are not the subject of appropriate pleadings and notice.” Todaro v. Todaro, 704 So. 2d 138, 139 (Fla. 4th DCA 1997) (quoting Defreitas v. Defreitas, 398 So. 2d 991, 992 (Fla. 4th DCA 1981)); see also Lamelas v. Granados, 730 So. 2d 387 (Fla. 2d DCA 1999). However, when issues not raised by the pleadings are tried by express or implied con…
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Flemming v. Flemming, 742 So. 2d 843 (Fla. 1st DCA 1999)…the Husband on an alternating week basis.” The trial court did not have authority to rule on matters that were “not the subject of appropriate pleadings and notice.” Lamelas v. Granados, 730 So. 2d 387 (Fla. 2d DCA 1999) (citing Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)). The issue of rotating custody was not tried by implied consent because Former Wife raised a proper objection. See Todaro, 704 So. 2d at 140 (citing Hemraj v. Hemraj, 620 So. 2d 1300, 1301 (Fla. 4th DCA 1993)). Further the rotat…
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Newberry v. Newberry, 831 So. 2d 749 (Fla. 5th DCA 2002)…en sufficiently apprised of the issue. See Whight v. Whight, 635 So. 2d 135 (Fla. 1st DCA 1994)(wife specifically listed child support as disputed issue in case management conference and filed support guideline worksheet). Compare, Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)(objection at time issue raised); McCaleb v. Mathis, 459 So. 2d 1162 (Fla. 2d DCA 1984)(not tried by implied consent based, in part, on counsel’s statements). The record in this case evidences that appellant tried the global issu…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Cooper v. Cooper, 406 So. 2d 1223 (Fla. 4th DCA 1981)
- Hemraj v. Goordial Hemraj, 620 So. 2d 1300 (Fla. 4th DCA 1993)
- Johnson v. Johnson, 546 So. 2d 97 (Fla. 4th DCA 1989)
- Defreitas v. Defreitas, 398 So. 2d 991 (Fla. 4th DCA 1981)
- Tykowski v. State, 398 So. 2d 991 (Fla. 4th DCA 1981)