RAY WALLS, APPELLANT,
v.
YVONNE SEBASTIAN, APPELLEE
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Ray Walls appealed a modification order concerning child support and timesharing with his former wife, Yvonne Sebastian. The Fourth District Court of Appeal largely affirmed the modification order but reversed in part regarding a mathematical error in medical bill allocation and the trial court's sua sponte modification of the visitation schedule.
The court affirmed the modification order except: (1) it did not reach the health insurance deduction issue because the former husband failed to raise it at the hearing or in a motion for rehearing; (2) it reversed the medical bill allocation, reducing the former husband's obligation from $2,199.10 to $1,910.55; and (3) it reversed the sua sponte modification of timesharing and directed reinstatement of the original arrangement.
[1] A trial court cannot consider an issue on appeal if it was not argued below or raised via a motion for rehearing.
[2] A trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings.
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“A trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings.”
Establishes the legal principle preventing the trial court from sua sponte modifying the timesharing arrangement.
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Join FLexlaw to unlock all legal intelligenceThe trial court entered a modification order on April 8, 2004, and an attorney's fee order on April 23, 2004, in a family law dispute between former s…
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PER CURIAM.
Except as reflected in this opinion, we affirm the order on the former wife’s modification petition entered on April 8, 2004 and the attorney’s fee order entered on April 23, 2004. We write to briefly address several issues.
Former husband complains that the trial court failed to deduct from his child support obligation the cost of the health insurance for the minor children. For authority, the former husband cites section 61.30(8), Florida Statutes (2004) and Willey v. Willey, 703 So. 2d 1234 (Fla. 4th DCA 1998). In Willey, this court reversed the trial court’s order modifying child support because of its failure to de duct the former husband’s payment of the child’s health insurance premium from his support obligation. Id. '
However, former husband failed to address this issue at the hearing on modification; nor did he raise the issue in a motion for rehearing. In Hoffman v. Hoffman, 793 So. 2d 128, 131 (Fla. 4th DCA 2001), we confronted the same legal issue under the same factual scenario and held that we could not “consider this issue on appeal since it was not argued below or raised via a motion for rehearing.” Hoffman controls and we do not reach the issue here.
To correct a mathematical error, we reverse that portion of the order concerning the amount of the children’s unpaid medical bills which the former husband owes to the former wife. The court assessed $2,199.10 against former husband for his half of the uncovered medical expenses, when it should have been $1,910.55. On remand, the trial court shall correct the $288.55 overcharge.
As the former wife observes in her brief, the “former Husband takes the somewhat unusual position of seeking reversal of the modification of his timeshar-ing [with the children], even though it actually benefits him by providing more visitation with his children tha[n] he was given under the Final Judgment.” Nonetheless, the former husband challenges the trial court’s sua sponte modification of his visitation schedule. In the modification proceeding, neither party requested a change in the timesharing arrangement. A trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings., See Fuchs v. Fuchs, 840 So. 2d 449 (Fla. 4th DCA 2003); Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997). On remand,- the trial court shall reinstate the original timesharing arrangement.
Affirmed in part, reversed in part, and remanded.
STONE, GROSS and HAZOURI, JJ., concur.
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Citator
Cited By
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Glaister v. Glaister, 137 So. 3d 513 (Fla. 4th DCA 2014)…child support payment terms where the former husband petitioned for a modification based only on two children reaching majority and not alleging any ambiguity in the parties’ marital settlement agreement regarding payment terms); Walls v. Sebastian, 914 So. 2d 1110, 1111 (Fla. 4th DCA 2005) (holding that “[a] trial court lacks jurisdiction to enter a judgment on an issue not raised by the pleadings” and reversing the trial court’s modification of the former husband’s visitation schedule because “neither party…
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Mendes v. Mendes, 947 So. 2d 450 (Fla. 4th DCA 2007)…ur remand. While such an issue is within the trial court’s jurisdiction under Reno, the former husband did not invoke that remedy. As such, rehearing is denied. See Hoffman v. Hoffman, 793 So. 2d 128 (Fla. 4th DCA 2001); see also Walls v. Sebastian, 914 So. 2d 1110 (Fla. 4th DCA 2005); Utterback v. Utterback, 861 So. 2d 465 (Fla. 3d DCA 2003). Former husband is not limited in seeking modification in a new proceeding if justified by the current facts and circumstances of the parties. Rehearing Denied. WARNER…
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Bluestein v. Trudy H. Bluestein, 958 So. 2d 1040 (Fla. 1st DCA 2007)…the circuit court sua sponte modified the visitation arrangement. We reverse. Contrary to the lower court’s findings, neither party had raised an issue of visitation, nor had the parties argued it by consent at the hearing. See Walls v. Sebastian, 914 So. 2d 1110 (Fla. 4th DCA 2005). Because all parties were by then residing in Virginia, it is questionable whether the circuit court would have had jurisdiction to reach the issue, had it been raised. See § 61.515, Fla. Stat. (2005). We direct the court to stri…
Authorities Cited
- Todaro v. Todaro, 704 So. 2d 138 (Fla. 4th DCA 1997)
- Thomas v. State, 840 So. 2d 449 (Fla. 4th DCA 2003)
- Bingham v. State of Fla. & Michael W. Moore, 793 So. 2d 128 (Fla. 1st DCA 2001)
- Hoffman v. Hoffman, 793 So. 2d 128 (Fla. 4th DCA 2001)
- Willey v. Willey, 703 So. 2d 1234 (Fla. 4th DCA 1998)