DEBRA W. FLEMMING, APPELLANT,
v.
MICHAEL S. FLEMMING, APPELLEE
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In this dissolution of marriage appeal, the Florida First District Court of Appeal reversed the trial court's imposition of a rotating weekly custody arrangement that was not pleaded or agreed to by the parties, and also found error in the calculation of the husband's gross income for child support purposes and in the denial of attorney's fees to the wife.
The trial court abused its discretion by ordering rotating custody not raised by pleadings and notice over the wife's objection and contrary to the parties' agreement. The trial court also abused its discretion in calculating the husband's gross income by failing to include voluntary retirement contributions, interest income, dividends, and the economic benefit of a company-owned vehicle, and by deducting personal exemptions and standard deductions. The trial court erred in denying attorney's fees given the disparity of the parties' incomes and the wife's need to avoid using equitable distribution assets to pay legal fees.
[1] A trial court may not rule on matters not raised by the pleadings and notice, absent trial by implied consent.
[2] A trial court abuses its discretion by ordering a rotating custody arrangement that contradicts a parties' agreement and was not raised by the pleadings.
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Join FLexlaw to unlock all legal intelligence“The trial court did not have authority to rule on matters that were 'not the subject of appropriate pleadings and notice.'”
Establishes the foundational principle that trial courts lack authority to decide issues not properly pleaded or noticed to the parties.
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Join FLexlaw to unlock all legal intelligenceThe parties stipulated in their pleadings and partial settlement agreement to shared parental responsibility with the former wife as the primary physi…
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BOOTH, J.
This cause is before us on a final judgment of dissolution of marriage. In the pleadings and partial settlement agreement, the parties stipulated to shared parental responsibility of the minor children, designating Former Wife the primary physical residential parent and Former Husband the secondary residential parent. At hearing, Former Husband requested that the children live an equal amount of time with each parent, with custody alternating on each week. Former Wife objected that this custody arrangement was not raised by the pleadings and contravened the parties’ agreement. The trial court, however, ruled that the partiés have shared parental responsibility, with Former Wife as the primary residential parent “subject to rotating custody with 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 rotating custody arrangement contradicts the parties’ agreement concerning primary residence. On the record before us, we find that the trial court abused its discretion in ordering a rotating custody arrangement.
Additionally, the trial court abused its discretion in calculating Former’s Husband’s gross income for determination of child support. In recalculating Former Husband’s income, the trial court is directed to consider voluntary contributions to his retirement fund, interest income, dividends, and the economic benefit of his company-owned vehicle, and not to deduct the personal exemption and standard deduction. §§ 61.046(4) & 61.30(1)(a), (2)(a), Fla. Stat.; Nelson v. Nelson, 651 So. 2d 1252, 1253-54 (Fla. 1st DCA 1995) (holding contributions to voluntary retirement are includable in income for child support purposes).
On the issue of attorney’s fees, we reverse based on the disparity of the parties’ incomes, and because Former Wife should not be required to use assets obtained from equitable distribution to pay her attorney. Canakaris v. Canakaris, 382 So. 2d 1197, 1205 (Fla.1980).
We remand for further proceedings and, in light of the passage of time and reversal of various issues, the trial court may revisit the issues concerning rehabilitative alimony and permanent alimony depending on the present circumstances of the parties. Accordingly, we REVERSE and REMAND for proceedings consistent with this opinion.
ALLEN and BROWNING, JJ„ concur.
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Citator
Cited By (13 total)
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Alpha v. Alpha, 885 So. 2d 1023 (Fla. 5th DCA 2004)…stribution. This result is inequitable because the marital assets allocated to her are not substantial and the former husband has a far greater income and ability to pay. See Hill v. Hooten, 776 So. 2d 1004 (Fla. 5th DCA 2001); Flemming v. Flemming, 742 So. 2d 843 (Fla. 1st DCA 1999). Conclusion. We affirm the lower court’s judgment in regards to the valuation of the marital assets and the determination of their marital status and equitable distribution. However, we remand this cause to the trial court for…
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Bainbridge v. Pratt, 68 So. 3d 310 (Fla. 1st DCA 2011)…lson, 16 So. 3d 222, 223 (Fla. 5th DCA 2009) (holding the trial court violated the mother’s due process rights by ordering weekly rotating custody when weekly rotating custody was not brought up in the pleadings, nor at trial); Flemming v. Flemming, 742 So. 2d 843, 844 (Fla. 1st DCA 1999). Florida courts have consistently held that “[it] is fundamental that a trial court is without jurisdiction to hear and determine matters that are not the subject of appropriate pleadings and notice.” Lamelas v. Granados, 73…
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Krift v. Obenour, 152 So. 3d 645 (Fla. 4th DCA 2014)…rt may not order an annual, rotating time-sharing where neither parent requested such a plan in the pleadings, nor argued for the plan at the final hearing.” Bainbridge v. Pratt, 68 So. 3d 310, 314 (Fla. 1st DCA 2011); see also Flemming v. Flemming, 742 So. 2d 843, 844 (Fla. 1st DCA 1999) (“The trial court did not have authority to rule on matters that were ‘not the subject of appropriate pleadings and notice.’ ”). In Bainbridge, the appellate court reversed an annual rotating timesharing plan ordered by the…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)
- Rovena L'Tanya R. Nelson v. Miles Vernard Nelson, 651 So. 2d 1252 (Fla. 1st DCA 1995)
- Hemraj v. Goordial Hemraj, 620 So. 2d 1300 (Fla. 4th DCA 1993)
- State v. Roublick, 730 So. 2d 387 (Fla. 3d DCA 1999)