Posted by Nydia Streets of Streets Law in Florida Child Support
A basic tenet of the legal system is that parties must be put on notice of what they should defend against in a proceeding. This avoids “surprise” attacks in which a party is unable to defend a case properly. This concept is upheld in the case Bordonaro v. Bordonaro, 1D18-4091 (Fla. 1st DCA May 21, 2019).
Although short on factual background, the appellate opinion in this case provides some insight as to errors made by the trial court. The appeal stemmed from a motion for contempt that was filed against the former husband for failure to pay child support. The former husband was found to be in contempt and consequently, the trial court entered an order increasing his child support obligation and setting arrears based on this increase. A finding was also included in the order that the former husband abandoned his children. Last, the trial court awarded attorneys’ fees and costs to the former wife without making any requisite findings to do so.
On appeal, the court reversed. First, the court found it was error for the trial court to modify child support without the requisite pleadings from the former wife to do so. Specifically, the court held, “The increase of Appellant’s monthly child support payments is improper for two reasons. First, it did not use the requisite separate pleading, financial affidavits, or worksheet. §§ 61.14, 61.30(14), Fla. Stat.; Fla. Fam. L.R.P. 12.285(k). Second, a trial court cannot modify child support on a party’s motion for contempt for nonpayment of child support. As a result, the arrearages imposed by the trial court based on the improperly modified child support obligations were also improperly imposed.”
The court also reversed the finding that the former husband had abandoned his children, reasoning such findings are not appropriate in a contempt proceeding for failure to pay support. Instead, “Abandonment must be established by clear and convincing evidence and is usually requested through a petition for termination of parental rights.” Last the appellate court reversed as to attorneys’ fees and costs holding “[T]he trial court erroneously granted Appellant’s former wife’s request for attorney’s fees without considering or making any findings regarding either party’s need or ability to pay.”
Modification of child support in Florida is a process that requires careful consideration. Schedule a consultation with a Miami child support lawyer to determine if your request for modification is likely to be granted.