DAVID J. NEESE, APPELLANT,
v.
JANET NEESE, N/K/A JANET STRAIT, APPELLEE
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David Neese appealed the trial court's modification of child support, calculation of support arrearage, and award of attorney's fees against him. The appellate court affirmed the child support modification but vacated the arrearage and attorney's fees awards due to mathematical error and procedural deficiency, and remanded for recalculation and a proper hearing on fees.
The court affirmed the modification of child support itself, but vacated both the arrearage award and the attorney's fees award. The correct arrearage should be $576 (calculated as $695 minus $647 times 12 months), not $2,760. The trial court must recalculate the arrearage and conduct a proper hearing on attorney's fees before any award may be made.
[1] A trial court's calculation of child support arrearage is subject to reversal if based on a miscalculation of the actual amount received by the custodial parent.
[2] A trial court abuses its discretion by awarding attorney's fees to a prevailing party based solely on affidavits without affording the opposing party an opportunity to re…
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Join FLexlaw to unlock all legal intelligence“The trial court accepted a general master's determination that child support was in arrears, but the general master miscalculated the arrearage when he determined that Janet Strait, the former wife, was receiving $465 child support, when, in fact, the former wife received $647 per month.”
Identifies the factual error underlying the arrearage miscalculation.
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Join FLexlaw to unlock all legal intelligenceDavid Neese was the former husband in a child support modification case. The trial court, accepting a general master's determination, found child supp…
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PETERSON, J.
David Neese, the former husband, appeals the trial court’s modification of child support, calculation of support arrearage, and award of attorney’s fees. We affirm the modification of the child support, but vacate the awards of,support arrearage and attorney’s fees.
The trial court accepted a general master’s determination that child support was in arrears, but the general master miscalculated the arrearage when he determined that Janet Strait, the former wife, was receiving $465 child support, when, in fact, the former wife received $647 per month.
The general master’s calculation was based upon $695 (the modified monthly child support) less $465 (the monthly child support for one child before the oldest reached majority), times 12 (the number of months between the former wife’s filing date of the petition for modification and the date of the hearing), resulting in an arrearage of $2,760. The correct calculation should have been the modified monthly support amount of $695, less the actual monthly amount of $647 received by the former wife for the remaining minor child, times 12, or $576.
Relying solely on affidavits submitted by the former wife, the trial court awarded attorney’s fees to her as the prevailing party without affording the former husband the opportunity to rebut the propriety or amount of the award.
We remand to the trial court for the purposes of:
1. Awarding the proper amount of the arrearage of $576 to the former wife.
2. Determining whether the former wife is entitled to attorney’s fees, and if so, the amount of the fees after considering the factors required by section 61.16(1), Florida Statutes (2003), Canakaris v. Canakaris, 382 So. 2d 1197 (Fla.1980), and after conducting a hearing to entertain evidence of the appropriate amount. See Calderon v. Calderon, 730 So. 2d 400, 403 (Fla. 5th DCA 1999). If an award of fees is found to be appropriate, the trial court is instructed to consider the indefensible stance taken by the former wife on the two issues that have been reversed. AFFIRMED IN PART; REVERSED IN PART; REMANDED.
SAWAYA, C.J., and THOMPSON, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980)
- Calderon v. Calderon, 730 So. 2d 400 (Fla. 5th DCA 1999)