VALERIE A. OWENS, N/K/A VALERIE A. JOHNSTON, APPELLANT,
v.
MYRTIS M. ESHELMAN, APPELLEE
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A Florida appellate court upheld a trial court's award of grandparental custody to the paternal grandmother but reversed the award of child support to her because the grandmother neither pleaded nor proved her need or the mother's ability to pay. The reversal was without prejudice, allowing the grandmother to seek child support in a future proceeding.
The court affirmed the custody award but reversed the child support award because Florida law precludes a trial court from entering judgment on matters outside the issues framed by the pleadings. A trial court cannot award child support without it being properly pleaded and evidence presented regarding need and ability to pay.
[1] A trial court cannot modify a final judgment of dissolution unless the issue subject to modification is properly presented by appropriate proceedings and each party has a…
[2] A post-judgment order that limits a previously granted block of visitation constitutes a modification of the final judgment.
Previewing 2 of 4 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“In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings.”
Establishes the fundamental principle that trial courts are limited to matters properly pleaded in custody cases.
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Join FLexlaw to unlock all legal intelligenceValerie Owens, the natural mother, had her child placed in the grandparental custody of Myrtis Eshelman, the paternal grandmother. The trial court awa…
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PER CURIAM.
Appellant, Valerie A. Owens, the natural mother, appeals an order of the trial court granting the petition for grandparental custody filed by appellee, Myrtis M. Eshelman, the paternal grandmother, and awarding child support to her. We affirm the award of custody without comment, but reverse the award of child support, because Eshelman neither pled nor proved need or the mother’s ability to pay.
At the hearing on Eshelman’s motion for contempt against Owens for failing to pay child support following the final judgment, the trial court acknowledged that there had been no evidence presented on this issue. Moreover, Eshelman did not include a request for child support anywhere in her petition for custody. In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings. See Cortina v. Cortina, 98 So. 2d 384 (Fla.1957) (trial court erred in relieving father from paying child support when father sought only contempt order for denial of visitation, and child support was neither pled nor litigated). Accord Sohacki v. Sohacki 657 So. 2d 41 (Fla. 1st DCA 1995); Smith v. Smith, 363 So. 2d 832 (Fla. 1st DCA 1978). See also Connolly v. Connolly, 448 So. 2d 641, 642 (Fla. 4th DCA 1984) (error to award alimony, child support, custody, and visitation absent pleading, prayer, or other predicate requesting such relief, and “error was compounded when the husband was found in contempt of such order”). Accordingly, we reverse the order awarding child support, without prejudice to Eshelman seeking child support at a later date.
AFFIRMED IN PART, REVERSED IN PART and REMANDED with directions to the trial court to strike that portion of the final order awarding child support to appel-lee.
BARFIELD, C.J., ERVIN, J., and SMITH, LARRY G., Senior Judge, concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Angeline Alois v. Alois, 937 So. 2d 171 (Fla. 4th DCA 2006)…ddressed child support); Berger v. Berger, 559 So. 2d 737, 738 (Fla. 5th DCA 1990) (remanding for trial court to adjust child support to reflect that it is retroactive to the date of filing the petition for modification); see also Owens v. Eskelman, 712 So. 2d 472, 473 (Fla. 1st DCA 1998) (holding that court could not enter child support award where it was not requested in petition for custody); Torres v. Torres, 739 So. 2d 599, 600 (Fla. 2d DCA 1997) (“It is settled that a trial court cannot modify a child s…
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Alejandra Ivanovich v. Valladarez, 190 So. 3d 1144 (Fla. 2d DCA 2016)…supplemental action for modification as equity requires”). Here, the former husband sought custody in December 2009, but he did not seek a modification of child support at that time. The trial court.was bound by his pleading. See Owens v. Eshelman, 712 So. 2d 472, 473 (Fla. 1st DCA 1998) (“In a custody proceeding, the court is precluded from entering a judgment on any matter .outside the issues framed by the pleadings.”). The former husband’s request for modification of child support was not made until July…
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Cordell v. Cordell, 30 So. 3d 647 (Fla. 3d DCA 2010)…ddressed child support); Berger v. Berger, 559 So. 2d 737, 738 (Fla. 5th DCA 1990) (remanding for trial court to adjust child support to reflect that it is retroactive to the date of filing the petition for modification). See also Owens v. Eshelman, 712 So. 2d 472, 473 (Fla. 1st DCA 1998) (holding that court could not enter child support award where it was not requested in petition for custody); Torres v. Torres, 739 So. 2d 599, 600 (Fla. 2d DCA 1997) (“It is settled that a trial court cannot modify a child s…
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
- Sohacki v. Sohacki, 657 So. 2d 41 (Fla. 1st DCA 1995)
- Connolly v. Lizabeth Connolly, 448 So. 2d 641 (Fla. 4th DCA 1984)
- Smith v. Smith, 363 So. 2d 832 (Fla. 1st DCA 1978)