LARRY BATOR, APPELLANT,
v.
SANDRA OSBORNE, APPELLEE
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Bator appeals a trial court order requiring him to pay one-half of his child's day care costs in addition to existing child support. The appellate court reverses because the trial court failed to follow statutory procedures required under Florida's child support modification statutes.
The trial court erred in ordering payment of day care costs because: (1) Osborne did not file a petition for modification alleging a substantial change of circumstances; (2) she did not file the required financial affidavit showing her income; and (3) the court failed to follow the statutory formula under section 61.30(7), which requires reducing day care costs by twenty-five percent before apportioning them.
[1] A trial court cannot order a party to pay child care costs without a properly filed petition for modification alleging a substantial change in circumstances.
[2] A party seeking to modify child support obligations must file a financial affidavit showing their income.
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“since Osborne did not file a petition for modification alleging substantial change of circumstances, it is questionable whether the issue of modification was properly before the court”
Establishes that modification of child support requires proper procedural filing, not just a request within a contempt action
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Join FLexlaw to unlock all legal intelligenceBator and Osborne were divorced in 1999, with Osborne awarded primary residential responsibility of their minor child and Bator ordered to pay $300 pe…
The full statement of facts, procedural history, and disposition for this case are member content.
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DAVIS, Judge.
Larry Bator challenges the trial court’s order requiring him to pay one-half of his child’s day care costs. Because the court’s order was not properly entered pursuant to section 61.30, Florida Statutes (1999), we reverse.
Bator and Sandra Osborne were divorced in 1999. By the terms of the divorce decree, Osborne was awarded primary residential responsibility of then-minor child and Bator was ordered to pay $300 a month child support. Subsequently, Osborne filed a contempt action seeking to collect alleged child support arrear-age. As a part of her amended motion for contempt, Osborne requested that Ba-tor be ordered to pay day care costs for the child. The trial court’s order on the contempt motion required Bator to pay one-half of the day care costs in addition to the previously ordered child support. Bator moved for rehearing, and the trial court denied his request. Bator then filed this appeal.
The trial court erred in ordering the payment of the day care costs and in denying the motion for rehearing. First, since Osborne did not file a petition for modification alleging substantial change of circumstances, it is questionable whether the issue of modification was properly before the court. See Dep’t. of Revenue v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA1996). Secondly, she did not file the required financial affidavit showing her income. See § 61.30(14), Fla. Stat. (1999). The fact that she had obtained employment since the final judgment should have been considered by the court. Additionally, section 61.30(7) requires the trial court, in apportioning child care costs, to reduce the total of those costs by twenty-five percent and then add the remainder to the basic obligation, which is then apportioned pursuant to statute. Not only was it questionable whether the trial court had the issue of modification of child support before it, but the court failed to follow the statutory requirements in addressing the request.
Because of these errors, we reverse without prejudice to Osborne’s filing a proper petition for modification, along with the required affidavit, so that the court may properly recalculate the parties’ child support obligations in accord with the statute and the facts.
Reversed.
BLUE, C.J., and THREADGILL, J., Concur.
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Citator
Cited By
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Guard v. Guard, 993 So. 2d 1086 (Fla. 5th DCA 2008)…tion 61.30(7) requires the trial court, in apportioning child care costs, to reduce the total of those costs by twenty-five percent and then add the remainder to the basic obligation, which is then apportioned pursuant to statute.” Bator v. Osborne, 799 So. 2d 263, 264 (Fla. 2d DCA 2001). Here, the magistrate ordered the husband to provide child care for the children so that the wife could resume employment as soon as possible, but failed to include that obligation in its child support calculations. It does…
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Henderson v. Henderson, 882 So. 2d 499 (Fla. 1st DCA 2004)…ion 61.30(14), Florida Statutes (2003) — dismissal without leave to amend was not justified. See Owens v. Ridley, 870 So. 2d 886, 887 (Fla. 1st DCA 2004); Obenschain v. Williams, 750 So. 2d 771, 772-73 (Fla. 1st DCA 2000); see also Bator v. Osborne, 799 So. 2d 263, 264 (Fla. 2d DCA 2001) (reversing “without prejudice to Osborne’s filing a proper petition for modification along with the required affidavit, so that the court may properly recalculate the parties’ child support obligations in accord with the stat…
Authorities Cited
- State v. Kiedaisch, 670 So. 2d 1058 (Fla. 2d DCA 1996)