DEPARTMENT OF REVENUE, FOR THE USE AND BENEFIT OF PAULA HAMILTON TESTA, APPELLANT,
v.
DAVID LOVINS, APPELLEE
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In a child support case, the Florida Fourth District Court of Appeal addresses when the retroactive support period begins under section 61.30(17). The court holds that the two-year lookback period for retroactive child support begins from the date of the mother's first attempt to establish paternity in 1993, not from her successful service of process in 1999.
The court holds that the statutory language "not to exceed a period of 24 months preceding the filing of the petition" refers to the date of the first filing attempt, not the date of successful service. Therefore, retroactive child support should be calculated from two years before the 1993 filing, regardless of unsuccessful service of process.
[1] In an initial determination of child support, a court has discretion to award retroactive support to the date parents last resided together with the child, not to exceed…
[2] The filing of a petition for child support, for purposes of calculating retroactive support, refers to the initial attempt to file, even if service of process was unsucce…
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Join FLexlaw to unlock all legal intelligence“In fixing the amount of retroactive support, the trial court limited the period to the two years immediately preceding the last effort at suit in 1999.”
Establishes what the trial court did and what the appellant challenged on appeal
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Join FLexlaw to unlock all legal intelligenceAn unmarried mother gave birth to a child in 1987. In 1993, she attempted to establish paternity and child support against the father but was unable t…
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FARMER, J.
An unmarried mother gave birth to a child in 1987. Six years later, she attempted to sue the father to establish paternity and appropriate child support, but she was unable to serve him with process. She tried again in 1996, with the same result. Finally in 1999 through the Department of Revenue she tried again and this time was able to effect service of initial process. In fixing the amount of retroactive support, the trial court limited the period to the two years immediately preceding the last effort at suit in 1999. On appeal mother argues that the two year period should be measured from her first attempt at suit in 1993. We agree and reverse.
Section 61.30(17) provides that:
“In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.”
§ 61.30(17), Fla. Stat. (2000). We agree with the mother’s interpretation of this provision. The statutory locution “date precedes the filing of the petition” should be understood to mean the filing of mother’s first attempt. The fact that she was unsuccessful in effecting service of process is immaterial to the meaning of this statutory text. Even if it could be deemed ambiguous, we would necessarily interpret it in favor of that construction broadly favoring support for the child, rather than in a limiting way.
We therefore reverse the order and remand with instructions to amend the award of retroactive support to a date two years before the mother’s filing in 1993.
TAYLOR, J., and MAY, MELANIE, G., Associate Judge, concur.
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Morris v. Tonda S. Swanson, 940 So. 2d 1256 (Fla. 1st DCA 2006)…cMillian was already pending by the time the amendment took effect. See 746 So. 2d at 1236. We do not find obiter dicta suggesting the contrary persuasive. See Houston v. Maglio, 845 So. 2d 971, 972 n. 2 (Fla. 4th DCA 2003); Dep’t of Rev. v. Lovins, 798 So. 2d 891, 892 (Fla. 4th DCA 2001); Johns v. Richards, 717 So. 2d 1103, 1103-04 (Fla. 4th DCA 1998). The child’s substantive right to her father’s support antedated the filing of the mother’s petition for support. Id. at 1236-37 (citing State, Dep’t of Rev.…