REBECCA C. DEY, APPELLANT/CROSS-APPELLEE,
v.
GORDON J. DEY, JR., APPELLEE/CROSS-APPELLANT
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In this family law appeal, the First District Court of Appeal affirmed the trial court's reduction of the husband's alimony obligation but reversed the trial court's sua sponte increase in child support, holding that a party cannot modify child support without proper pleading and notice to give the opposing party a fair opportunity to respond.
The trial court's reduction of alimony was affirmed, but the sua sponte increase in child support was reversed and remanded. A trial court cannot modify child support sua sponte without proper pleading and notice giving the opposing party a fair opportunity to respond. Amendment of pleadings to conform to evidence is only permitted when the unpleaded issues are tried by express or implied consent of the parties, which did not occur here.
[1] A trial court cannot modify a child support provision sua sponte unless the modification is properly pled and the opposing party has notice and a fair opportunity to resp…
[2] Amendments to pleadings to conform to the evidence are permitted when unpleaded issues are tried by the express or implied consent of the parties.
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Join FLexlaw to unlock all legal intelligence“A trial court cannot modify a child support provision sua sponte, unless such modification was properly pled and notice was given so that the opposing party has a fair opportunity to respond.”
Establishes the fundamental requirement that child support modifications require proper pleading and notice
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Join FLexlaw to unlock all legal intelligenceGordon Dey, Jr. petitioned to reduce or terminate his monthly alimony payments and reduce his child support payments. After an evidentiary hearing, th…
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[*627] PER CURIAM.
The appellee petitioned the court to reduce or terminate his monthly alimony payments and to reduce his child support payments. After an evidentiary hearing, the trial court reduced appellee’s alimony obligation based on its comparison of the parties current incomes, but increased appellee’s child support obligation sua sponte. On appeal, appellant argues that the trial court erred in reducing the alimony amount and on cross-appeal, appellee argues the trial court erred by failing to terminate his alimony obligation and increasing his child support obligation. We affirm the trial court’s decrease in the amount of appellee’s alimony obligation without further discussion. However, we reverse that portion of the trial court’s order increasing appellee’s child support obligation.
A trial court cannot modify a child support provision sua sponte, unless such modification was properly pled and notice was given so that the opposing party has a fair opportunity to respond. Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974); Koken v. Neubauer, 374 So. 2d 49, 50 (Fla. 3d DCA 1979). In this case, appellant attempted to plead her claim for an increase in child support by orally moving to amend the pleadings to include the claim after the trial court’s sua sponte order. According to Florida Family Law Rule 12.190, amendment of pleadings to conform to the evidence presented is permitted when the unpleaded issues are tried by express or implied consent of the parties. See Fla. R. Civ. P. 1.190. To determine the existence of implied consent, the court considers whether the opposing party had a fair opportunity to defend against the unpleaded issue and whether the party could have offered additional evidence on that issue if it had been pled. Smith v. Mogelvang, 432 So. 2d 119 (Fla. 2d DCA 1983). Here, appellant’s motion in of itself effectively amounted to a counter-petition.
Thus, appellee was not given a fair opportunity to adequately defend or respond to appellant’s claim for an increase in child support, nor did the appellee implicitly consent to such claim. Since the appellee was prejudiced, the trial court erred in granting appellant’s motion to amend the pleadings.
Accordingly, the portion of the trial court’s order increasing the appellee’s child support obligation is reversed and remanded for consideration of appellee’s motion for reduced child support payments. If the trial court deviates from the child support guidelines in an amount exceeding 5%, the court must provide specific findings to support the deviation.
AFFIRMED in part, REVERSED in part and REMANDED.
BARFIELD, POLSTON and HAWKE S, JJ., concur.
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Wendel v. Wendel, 852 So. 2d 277 (Fla. 2d DCA 2003)…ny child support provisions sua sponte. Rather, proposed modifications must be properly pleaded and notice must be given so that the opposing party has an opportunity to respond. Manning v. Varges, 413 So. 2d 116, 117 (Fla. 2d DCA 1982); Dey v. Dey, 838 So. 2d 626 (Fla. 1st DCA 2003). Here, the Former Wife did not file any motion or other pleading seeking a change in the allocation of uninsured medical bills, a change in the IRS dependency exemptions, or a change in the Former Husband’s life insurance obliga…
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Brewer v. Solovsky, 945 So. 2d 610 (Fla. 4th DCA 2006)…t provision sua sponte. [*612] Rather, proposed modifications must be properly pleaded and notice must be given so that the opposing party has an opportunity to respond.” Wendel v. Wendel, 852 So. 2d 277, 286 (Fla. 2d DCA 2003); see also Dey v. Dey, 838 So. 2d 626 (Fla. 1st DCA 2003) (“[Tjrial court cannot modify a child support provision sua sponte, unless such modification was properly pled and notice was given so that the opposing party has a fair opportunity to respond.”). Based on the forgoing, the tria…
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Smith v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2007)…ssue is deemed tried, or not tried, by implied consent depending on whether “the opposing party had a fair opportunity to defend against the issue and ... could have offered additional evidence on that issue if it had been pleaded.” Id.; Dey v. Dey, 838 So. 2d 626, 627 (Fla. 1st DCA 2003). Inasmuch as it is Former Wife’s attorney who raised the issue of shared parental responsibility at the final hearing and questioned his client about this subject, Former Wife cannot reasonably claim prejudice from the trial…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- McCONNELL v. Brumos Porsche Audi Corp., 297 So. 2d 642 (Fla. 1st DCA 1974)
- Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)
- Smith v. L. Christian Mogelvang, M.D., 432 So. 2d 119 (Fla. 2d DCA 1983)
- Koken v. Neubauer, 374 So. 2d 49 (Fla. 3d DCA 1979)