SUELLEN WILKES, APPELLANT,
v.
JEFFREY R. WILKES, APPELLEE
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Wife appeals the denial of her motion to set aside a final divorce judgment based on husband's alleged false financial affidavit. The court affirms as to most claims but reverses and remands regarding child support, holding that a child's right to support cannot be waived by parents and must be reconsidered if the financial affidavit was fraudulent.
The court affirmed the denial of the motion as to all claims other than child support. However, the court reversed and remanded regarding child support, holding that even if the husband's financial statements were false, children's rights to support cannot be waived or contracted away by parents, and therefore the child support award must be reconsidered if fraud is established.
[1] A motion to set aside a final judgment of dissolution of marriage is the proper vehicle to assert intrinsic fraud, such as the filing of a false financial affidavit.
[2] A motion to set aside a final judgment based on intrinsic fraud must be filed within the applicable one-year time period, unless an exception applies.
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Join FLexlaw to unlock all legal intelligence“A child's right to support may not be waived by a parent, see Strickland v. Strickland, 344 So.2d 931 (Fla. 2d DCA 1977), nor may that right be contracted away, see Finch v. Finch, 640 So.2d 1243 (Fla. 5th DCA 1994).”
Establishes the fundamental legal principle that children's support rights are inalienable and cannot be eliminated through parental agreement, which is critical to the court's reversal on the child support issue.
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Join FLexlaw to unlock all legal intelligenceSuellen Wilkes and Jeffrey R. Wilkes entered into a marital settlement agreement incorporated into a final judgment of dissolution. Wife alleged that …
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WHATLEY, Judge.
The wife, Suellen Wilkes, appeals the order denying her motion pursuant to Florida Rule of Civil Procedure 1.540 to set aside the final judgment of dissolution of marriage. That final judgment incorporated a marital settlement agreement.
The wife asserts that the husband, Jeffrey R. Wilkes, misstated his income by filing a false financial affidavit. The wife contends that the husband’s net income was approximately $19,000 more than the amount reflected on his financial affidavit. The filing of a false financial affidavit is intrinsic fraud. See DeClaire v. Yohanan, 453 So. 2d 375 (Fla.1984). A motion to set aside, such as the one filed by the wife, is the only vehicle to assert intrinsic fraud. The wife’s motion was filed within the applicable one-year time period. See Fla. R. Civ. P. 1.540(b).1
The trial court conducted an evidentiary hearing on the wife’s motion and ruled in favor of the husband. We affirm the trial court’s decision as to all claims other than child support. The alleged false statements on the husband’s financial affidavit concerned expenditures for health insurance and for an automobile. The wife contended that these expenditures were in fact paid by the husband’s employer. The trial court could have easily determined that the wife had knowledge; of these expenditures. Further, the wife was at all times represented by counsel (her appellate counsel was not her trial counsel). The wife’s trial counsel conducted no discovery.
A child’s right to support may not be waived by a parent, see Strickland v. Strickland, 344 So. 2d 931 (Fla. 2d DCA 1977), nor may that right be contracted away, see Finch v. Finch, 640 So. 2d 1243 (Fla. 5th DCA 1994). Here, the marital settlement agreement did provide for child support, yet, the children were unrepresented. Thus, if the husband’s statements were false, the children would in all probability be entitled to more child support than the amount to which the parties agreed. The wife simply could not “contract” away an amount of the children’s support.
Accordingly, we reverse the denied of the wife’s motion to set aside for the limited purpose of determining at an evidentiary hearing whether the husband’s statements were false and, if so, what impact they had on the child support award.
Affirmed in part, reversed in part, and remanded for further proceedings.
BLUE, A.C.J., and CASANUEVA, J., Concur. . We note that the wife could also have filed her motion pursuant to Florida Family Law Rule of Procedure 12.540, which provides that there shall be no time limit for motions for relief based on fraudulent financial affidavits in marital cases.
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Wendel v. Wendel, 852 So. 2d 277 (Fla. 2d DCA 2003)…tt, 388 So. 2d 1261, 1266 (Fla. 2d DCA 1980) (quoting Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979)). Parents may not waive or contract away a child’s right to child support. Gammon v. Cobb, 335 So. 2d 261, 266-67 (Fla.1976); Wilkes v. Wilkes, 768 So. 2d 1150, 1151 (Fla. 2d DCA 2000); Fox, 388 So. 2d at 1266. This does not prevent the parents from making agreements concerning child support as long as the agreements serve the best interests of the child. Fox, 388 So. 2d at 1266; Lester v. Lester, 736 So.…
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Loraine Clark Ford v. Ford, 816 So. 2d 1193 (Fla. 4th DCA 2002)…trial court’s order substantially eliminated ar-rearages due while creating a credit balance as to future support. We agree. It is well settled that a child’s right to support may not be waived by a parent or contracted away. See Wilkes v. Wilkes, 768 So. 2d 1150, 1151 (Fla. 2d DCA 2000). However, that does not preclude parents from making contracts or agree [*1196] ments concerning their child’s support so long as the best interests of the child are served. See Lester v. Lester, 736 So. 2d 1257, 1259 (Fla.…
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Jacobs v. Jacobs, 868 So. 2d 568 (Fla. 3d DCA 2004)…the time of the negotiation of the marital settlement agreement. As we interpret the court’s order, the court granted an involuntary dismissal of the former wife’s fraud claim on all issues except child support. However, based on Wilkes v. Wilkes, 768 So. 2d 1150 (Fla. 2d DCA 2000), the court concluded that as relates to child support, a court may grant relief from judgment where it is demonstrated that there has been a material error in the calculation of the child support guidelines — even if there has bee…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- DeCLAIRE v. Yohanan, 453 So. 2d 375 (Fla. 1984)
- Strickland v. Strickland, 344 So. 2d 931 (Fla. 2d DCA 1977)
- Bremshey Inv. Corp. v. Morrison, 640 So. 2d 1243 (Fla. 5th DCA 1994)
- Finch v. Finch, 640 So. 2d 1243 (Fla. 5th DCA 1994)