HAROLD EUGENE HURST, APPELLANT,
v.
BOBBIE JEAN HAMPTON, FORMERLY BOBBIE JEAN HURST, APPELLEE
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The court held that striking the husband's affirmative defense of abandonment was premature, as it was not frivolous and warranted judicial evaluation.
[1] A defense to child support arrearages is not subject to summary dismissal if it is not frivolous or sham.
[2] A party asserting a defense to child support arrearages is entitled to present proofs for judicial evaluation of the defense's merits.
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Join FLexlaw to unlock all legal intelligenceFollowing a divorce, the mother obtained a judgment for child support arrearages. The husband's affirmative defense alleging the mother abandoned the …
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Post divorce the mother applied and received judgment against the former husband for more than $9,000 in child support arrearages. The husband’s affirmative defense that his former wife had abandoned the children for a number of years was *892stricken and not considered. The husband appeals. We reverse.
We opine that the defense as pleaded was not frivolous, sham or otherwise subject to the summary treatment of being stricken. See Rule 1.140(f) and 1.150, F.R.C.P., 30 F.S.A.; Pentecostal Holiness Church, Inc. v. Mauney, Fla.App. 1972, 270 So.2d 762; Westervelt v. Istokpoga Consol. Subdrainage Dist., 1948, 160 Fla. 535, 35 So.2d 641. We feel that at the least the husband was entitled to develop his proofs of this defense for a judicial evaluation as to the merits.
On the one hand, this may be a case where the wife’s rights have become absolutely vested as to past due installments in such fashion as to permit the husband no relief. See Pottinger v. Pottinger, 1938, 133 Fla. 442, 182 So. 762; Petrucci v. Petrucci, Fla.App.1971, 252 So.2d 867; Boyle v. Boyle, Fla.App.1967, 194 So.2d 64; Morrison v. Morrison, Fla.App.1960, 122 So.2d 199.
On the other hand, there may be such extraordinary facts constituting an avoidance such as laches or estoppel as would permit consideration of the circumstances suggested by the husband. See Brown v. Brown, Fla.App.1959, 108 So.2d 492; Mason v. Mason, 1934, 148 Or. 34, 34 P.2d 328. See also Warrick v. Hender, Fla.App.1967, 198 So.2d 348; Annot. 2 A.L.R.2d 831 (1948).
Of course, we are always cognizant that orderly procedure would require, if a person wishes relief, that the change in circumstances be brought promptly to the trial court’s attention for evaluation and appropriate modification of the judgment. Section 61.14, F.S.1971, F.S.A.
We merely say that the adjudication of the defense was premature. We express no opinion as to the correct ultimate outcome of the matter.
We reverse and remand for further per-ceedings consistent herewith. •
Reversed and remanded.
REED, C. J., and MAGER, J., concur.
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FOX v. Benton Myron Haislett, 388 So. 2d 1261 (Fla. 2d DCA 1980)…’s enrollment in that school. We recognize the rule that matters of avoidance, such as estoppel, are a valid defense in an action to enforce past-due installments of child support. Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974); Hurst v. Hampton, 274 So. 2d 891 (Fla. 4th DCA 1973). Additionally, in extraordinary or compelling circumstances, a court may decline to enforce such a past-due obligation. Pottinger v. Pottinger, supra; Smithwick v. Smithwick, 343 So. 2d 945 (Fla. 3d DCA 1977); Warrick v. Hender,…
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Dina Teta v. Teta, 297 So. 2d 642 (Fla. 1st DCA 1974)…y the payment of past due installments of child support. Brown v. Brown, 108 So. 2d 492 (Fla.App. 2nd, 1959); Warrich v. Hender, 198 So. 2d 348 (Fla.App. 4th, 1967); Mendel v. Mendel, [*646] 257 So. 2d 293 (Fla.App. 3rd, 1972); and Hurst v. Hampton, 274 So. 2d 891 (Fla.App. 4th, 1973). However, in the present case, there has been no showing that appellant has ever wrongfully deprived appellee of his right to visit the child. Appellee has never even attempted to visit the child in Italy and it was previously f…
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Courtney v. Warner, 290 So. 2d 101 (Fla. 4th DCA 1974)…here the decree is rendered is such that said decree may be modified as to past due or accrued installments, such decree is entitled to full faith and credit. Miller v. Shulman, Fla. App.1960, 122 So. 2d 589; but see Hurst v. Hampton, Fla.App. 1973, 274 So. 2d 891. As to installments not yet accrued, they are not entitled to full faith and credit because no money is yet due; and as to such installments a decree is generally understood to be subject, upon proof of changed conditions, to modification. See Lopez…
Authorities Cited
- Pottinger v. Pottinger, 133 Fla. 442 (Fla. 1938)
- Joan Claire Hender Warrick (formerly known as Joan Claire Hender) v. Hender, 198 So. 2d 348 (Fla. 4th DCA 1967)
- Brown v. Brown, 108 So. 2d 492 (Fla. 2d DCA 1959)
- Morrison v. Morrison, 122 So. 2d 199 (Fla. 1st DCA 1960)
- Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762 (Fla. 4th DCA 1972)
- Ross v. State, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Emilie S. Petrucci v. Petrucci, 252 So. 2d 867 (Fla. 3d DCA 1971)
- Boyle v. Boyle, 194 So. 2d 64 (Fla. 3d DCA 1967)
- Westervelt v. Istokpoga Consol. Sub-Drainage Dist., 160 Fla. 535 (Fla. 1948)