MARY MADARIAGA N/K/A MARY KEYACK, APPELLANT,
v.
GONZALO MADARIAGA, APPELLEE
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Mary Keyack appeals a trial court order requiring her to repay her former husband Gonzalo Madariaga $10,777.78 in alleged child support and alimony overpayment. The appellate court reversed and remanded because the trial court denied Keyack due process by basing its order on a Clerk audit without providing her an opportunity to be heard on the audit's contents.
The trial court's order must be reversed and remanded for a new hearing on the child support and alimony arrearages issue because the trial court denied Keyack due process by relying on the Clerk audit without allowing her to address and raise objections to it.
[1] A party is denied due process when the trial court makes findings based on an audit without providing that party an opportunity to be heard on the audit.
[2] A trial court may order an audit of child support and alimony payments.
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Join FLexlaw to unlock all legal intelligence“Given the unusual procedural overlap and Keyack's lack of opportunity to address and raise objections to the Clerk audit, a hearing should be held on the issue of child support and alimony arrearages.”
The court's principal holding that Keyack was denied due process and that remand for a hearing is required.
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Join FLexlaw to unlock all legal intelligenceMadariaga filed pro se motions requesting termination of child support and alimony obligations, clearing of arrears, and credit for direct payments. T…
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Mary Madariaga, n/k/a Mary Keyack [“Keyack”], appeals the trial court’s Order on Motion [for] Credit for Direct Payments as well as its amended order on her motion for rehearing and relief of judgment. The Order on Motion [for] Credit for Direct Payments required Keyack to repay Gonzalo Madariaga [“Madariaga”], her former husband, $10,777.78 in overpayment of child support and alimony at a rate of $300.00 per month and also directed the Clerk of Court [“Clerk”] to cease all of Madariaga’s child support and alimony obligations and to show a credit for Mada-riaga’s overpayment.
The Order on Motion [for] Credit for Direct Payments resulted from Madariaga having filed several pro se motions requesting that the trial court terminate his child support and alimony obligations, clear arrears, and give credit for direct payments. The trial court entered an order of referral to the general magistrate on the issues raised in Madariaga’s motions. Keyack filed a notice of objection to the said referral, but a hearing before the magistrate was scheduled for September 17, 2008. On that date, prior to the hearing before the magistrate, the trial court conducted a hearing and ordered an audit by the Clerk.1 Later the same day, the general magistrate also held a hearing, the result of which he reported and recommended that the hearing be continued to November 25, 2008, due to a lack of notice, and that Madariaga be ordered to provide Keyack with tangible proof of direct payments, such as cancelled checks, prior to the rescheduled hearing. The trial court entered an order approving the general magistrate’s report and recommendations.2 Upon receipt of the audit, however, on October 15, 2008, the trial court entered the Order on Motion [for] Credit for Direct Payments. The trial court based its findings, in large part, upon the Clerk audit.3 Keyack unsuccessfully sought rehearing or relief from judgment, arguing in part that the trial court denied her due process by not allowing her an opportunity *1292to be heard on the audit. Given the unusual procedural overlap and Keyack’s lack of opportunity to address and raise objections to the Clerk audit, a hearing should be held on the issue of child support and alimony arrearages.
Madariaga’s supplemental motion for sanctions pursuant to section 57.105(1), Florida Statutes and his motion for award of attorney’s fees on appeal are denied.
REVERSED and REMANDED.
GRIFFIN, SAWAYA and EVANDER, JJ., concur.