ERIC ALVAREZ, APPELLANT,
v.
SHERRY SINGH, APPELLEE

Fla. 5th DCA | 2004-12-03
No. 5D04-927
PALMER and TORPY, JJ., concur.
888 So. 2d 159 Florida District Court of Appeal, Fifth District (2004) Caution
Cited by 6 cases

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Synopsis

Alvarez appealed a modification order in a child support case where the trial court increased arrearage payments without proper pleading or notice from the opposing party. The Fifth District Court of Appeal held that the trial court lacked jurisdiction to increase arrearages because Singh had not requested such relief, and reversed that portion of the order while affirming the reduction in base child support.


Holding

The trial court lacked jurisdiction to increase arrearage payments because Singh had not raised this issue through appropriate pleadings and the modification petition only addressed possible reduction of child support. The arrearage payment should be calculated at 20% of the reduced child support amount ($542.41), yielding $108.48 per month, for a total payment of $650.89.


Headnotes

[1] A trial court lacks jurisdiction to hear and determine matters not subject to appropriate pleadings and notice.

[2] A petition for modification of child support does not authorize a trial court to increase arrearage payments when such an increase is not raised by any pleadings.

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Key Quotes

“A trial court is without jurisdiction to hear and determine matters not subject to appropriate pleadings and notice.”

Establishes the core jurisdictional principle that the trial court exceeded its authority by increasing arrearages without a pleading from Singh requesting such relief.

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Facts & Procedural History

Alvarez and Singh had a child together without being married. A Final Judgment of Paternity ordered Alvarez to pay $638.33 monthly in child support pl…

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Opinion of the Court
SHARP, W., J.

Alvarez appeals from an order rendered after he filed a motion for relief from a final judgment which required him to pay Singh child support and arrearages for their minor child, Victor Niko Garcia. We affirm in part and reverse in part.

The record in this case discloses that Alvarez and Singh were not married, and for a period of time Alvarez did not know whether Victor was his child. Singh filed for a judgment of paternity, and a Final Judgment of Paternity and Related Relief was entered. The court ordered child support retroactively at a rate of $638.33 per month, and found that the retroactive ar-rearages were $41,589.78. It ordered Alvarez to pay twenty percent of the total sum,1 or $127.66 per month, in arrearages until Victor attained his majority. At Victor’s majority, the entire amount of child support was to continue until the arrears were paid in full. The total payment Alvarez was to make, pursuant to the final judgment, was $765.99 per month.

Three months later, Alvarez filed this Supplemental Petition for Modification of Child Support/Motion for Relief From Final Judgment, in which he asked for a downward reduction in child support. In the petition he claimed the court erred in imposing day care costs of $95.92. He also alleged that his health insurance premium, including that portion for Victor, had increased, and that his income had decreased.

A hearing on the modification petition was held before a successor judge. At that hearing, Singh’s attorney advised the court that Singh’s parents cared for Victor after school and that she was not, in fact, incurring this expense. The judge reduced Alvarez’ child support payment by the amount of the day care expenses, but ordered Alvarez to continue to pay the same total amount of child support-$765.99. The court directed that the $95.92 would be credited against the arrearages.

Alvarez objected to the increased arrearage repayment and his attorney advised the court that the final judgment stated that Alvarez was to pay the arrears at the rate of 20 percent of his ongoing child support payment. He explained that although Alvarez was current on his child support payments, he had been unable to make any payment on the arrearage amount. Counsel argued that if the rate of repayment was being increased, the court should consider testimony concerning Alvarez’ financial circumstances and his reduced income. The judge denied this request and told Alvarez that if he did not pay the full amount, he was going to throw him in jail.

The only issue before the judge at the modification hearing was the possible reduction of child support. Singh filed no pleading, motion or request for affirmative relief, in the form of an increase in payment. A trial court is without jurisdiction to hear and determine matters not subject to appropriate pleadings and notice. See Cortina v. Cortina, 98 So. 2d 334 (Fla.1957); Byers v. Callahan, 848 So. 2d 1180 (Fla. 2d DCA 2003); Todaro v. Todaro, 704 So. 2d 138, 139 (Fla. 4th DCA 1997).

In a case analogous to this one, Newberry v. Newberry, 831 So. 2d 749 (Fla. 5th DCA 2002), this court held that a petition for contempt for nonpayment of child support did not authorize the trial court to reduce the child support amount because the reduction issue had not been raised by either party. Similarly, in this case we find that the court erred in increasing the arrearage payments because this issue was not raised in any pleadings and was not before the court. Newberry.

After deducting the $95.92 for child care costs, Alvarez’s new child support payment is $542.41. Because the final judgment requires arrearages to be paid at the rate of “20% of the guidelines child support amount” the arrearage payment should be reduced to $108.48, for a total payment of $650.89. We remand for rendition of an order consistent with this opinion.

AFFIRMED in part; REVERSED in part; REMANDED.

PALMER and TORPY, JJ., concur. . Paragraph 6 of the final judgment provides: Payments shall be retroactive to two years prior to the filing of this Petition. Reimbursement will be at the rate of 20% of the guidelines child support amount. Payments after the age of majority of the child are contemplated and shall remain at the same amount until the arrearages are satisfied. The father shall receive credit for $540.00 he paid upon the birth if [sic] the child. (Emphasis added)


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Citator

Cited By

  • Dep't OF Revenue v. Reyes, 181 So. 3d 1270 (Fla. 1st DCA 2015)
    …5th DCA 2002) (reversing a trial court’s order increasing a father’s child support obligation where the pleading only sought to modify primary residential custody of the children and decrease the amount of the support obligation); Alvarez v. Singh, 888 So. 2d 159, 160-61 (Fla. 5th DCA 2004) (reversing a trial court’s order modifying child support that increased a father’s arrearage payments when the only pleading was a petition for modification seeking a reduction in child support). - The case before us is…
  • R.C. Chaffin v. Overstreet, 982 So. 2d 11 (Fla. 5th DCA 2008)
    …should be removed as the co-trustee of the Overstreet Family Trust. Thus, the probate court lacked jurisdiction over the Ham Brown property because the issue was not sufficiently raised by the pleading and noticed for hearing. See Alvarez v. Singh, 888 So. 2d 159 (Fla. 5th DCA 2004). In addition, we find that Chaffin was before the court solely in his capacity as co-trustee of the Overstreet Family Trust and the probate court lacked jurisdiction over any other trusts. Although Chaffin sought the appointment…
  • Cavallaro v. Ricci Anthony Cavallaro, 916 So. 2d 922 (Fla. 4th DCA 2005)
    …. 2d 749 (Fla. 5th DCA 2002) (reversing an upward award of child support where the former husband requested a downward modification of child support and the former wife made no affirmative request for upward modification); see also Alvarez v. Singh, 888 So. 2d 159 (Fla. 5th DCA 2004) (holding that the trial court was not authorized to increase arrearage payments since issue was not raised in any pleadings and was not before the court). Affirmed in part and reversed in part. STEVENSON, C.J., POLEN and T…

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